In Volume 57, Issue 3
After Reaching the Courthouse Door: Why Lack of Affirmative Assistance Post-Pleading Violates Prisoners’ Access to Courts Right
Yasmine Ardehali
“Meaningful” access to the courts is a fundamental right under the Constitution’s Due Process Clause. But for incarcerated persons, this access is severely limited. The Supreme Court has thus required states to provide prisoners with legal assistance for presenting complaints of civil rights violations and challenges to confinement. Because incarcerated individuals often represent themselves pro se, states often have fulfilled this constitutional duty by providing proper law libraries or legal assistance programs. However, the Supreme Court’s decision in Lewis v. Casey severely curtailed prisoners’ right of access, disclaiming the notion that states must enable prisoners to “litigate effectively once in court.” The decision has created a circuit split about the extent of a state’s obligations to incarcerated persons after a complaint has survived the pleading stage. While some circuits have found the right of access to include “affirmative assistance” after the pleading stage, others have required that the state merely not engage in “active interference” with the plaintiff’s case without mandating that the state facilitate access. This Note argues that lack of affirmative assistance directly violates prisoners’ due process right to access the courts. Successful claims often depend on complying with legal technicalities that an incarcerated individual would not know about without affirmative assistance. Therefore, lack of affirmative assistance after the pleading stage causes meritorious lawsuits to fail. To rectify the disparity, this Note proposes reconciling Lewis’ existing framework with the need to provide post-pleading stage assistance by introducing the “legal information vs. legal advice” distinction: states must be required to furnish access to legal information after the pleading stage but are not required to provide legal advice. This dichotomy has already become commonplace in thirty-eight states that assist non-incarcerated pro se parties in civil actions, and should similarly apply to the prisoner litigation context.
Holder v. Humanitarian Law Project’s Shadow: When Fear Suppresses Disfavored Voices
John Kimble
In 2010, the Supreme Court held in Holder v. Humanitarian Law Project (HLP) that “material support,” as defined in § 2339B of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), includes a humanitarian organization’s efforts to teach a U.S.-designated foreign terrorist organization how to engage in international affairs peaceably. In deferring to Congress’ proclamation that such support is “fungible” and “legitimizes” foreign terrorist organizations, the Court departed sharply from First Amendment precedents.
This Note examines scholarship that has proliferated since HLP. The Introduction describes Zoom Video Communication’s cancellation of a university event at which Leila Khaled, a member of a U.S.-designated foreign terrorist organization, was scheduled to speak. The cancellation of this event alarmed many First Amendment advocates because it suggested that HLP was chilling otherwise constitutional speech. Part I analyzes HLP and subsequent cases applying its holding. Part II shows how expansive interpretations of 18 U.S.C. § 2339B, the material support statute at issue in HLP, conflict with First Amendment jurisprudence. Part III calls on Congress to rectify the First Amendment problems that HLP and its applications have created and urges courts to interpret § 2339B narrowly in order to protect Americans’ free speech rights.
A Necessary Recalibration: Why the Ministerial Exception’s Bar on Whistleblower Actions Harms Teachers and Students
Christopher Morillo
The “ministerial exception” is a First Amendment shield for religious institutions facing employment-related lawsuits. The Catholic Church, for example, might invoke the exception if sued by a woman barred from joining the priesthood on account of her sex. In recent years, however, the Supreme Court has “vertically” expanded the scope of the exception down the hierarchy of a religious institution, holding that it bars actions brought not only by traditional “ministers,” but also by teachers and other employees at religious schools—many of whom do not hold religious office or formally preach to students. This Note argues that this vertical expansion (i.e., the broadened conception of “minister”) warrants a “horizontal” restriction on the types of claims that the exception bars. Namely, whistleblower actions should not be categorically barred by the now-bloated ministerial exception. As the law stands, over a hundred thousand secular teachers are left in a precarious double bind in which they must act as mandatory reporters for child abuse and yet lack protection from any consequent retaliation for whistleblowing.
Part I of this Note provides an overview of the ministerial exception and its recent expansion, including how lower courts have been handling whistleblower claims. Part II theorizes that the broadening of the ministerial exception, and the underlying First Amendment right of church autonomy, should trigger a proportionality approach that constrains the exception based on competing government interests. Part III applies this proportionality approach in the context of whistleblower cases, arguing that whistleblower actions are distinct from other applications of the ministerial exception in the way they implicate third parties—often children—and with respect to the unique societal interests in protecting those third parties.
Indigeneity in the Classroom: Avenues for Native American Students to Challenge Anti-Critical Race Theory Laws
Alex H. Serrurier
Native American students in public schools face barriers to educational achievement due to racism, prejudice, and ignorance from fellow students, teachers, and administrators. Native students have endured various forms of discrimination that range from forcible cutting of braids by peers to administrative bans on traditional regalia at graduation ceremonies. In addition to experiencing overt acts of racism, Native students often feel disengaged from school due to the negative or non-existent portrayals of their tribal heritage in classroom curricula. Literature suggests that much of the gap in educational outcomes between Native students and their white peers could be mitigated through the incorporation of appropriate curricular materials on Indigenous history and culture, leading numerous states to pass laws requiring such programs to be developed and implemented in classrooms. In contrast, other states have proposed or passed legislation restricting the manner in which educators may discuss race, gender, and systemic inequality. These “anti-critical race theory” laws have the potential to chill or directly inhibit much-needed teaching of Native American culture and history in public school classrooms through both minimizing conversations about historical white supremacy and racism against Native Americans and limiting the visibility of Native figures and culture in public school curricula.
This Note proposes that Native students attending public schools in states that have passed anti-critical race theory legislation may be able to seek judicial relief from such laws. The Note will examine potential claims under the Fourteenth Amendment to the U.S. Constitution and, depending on where the students live, their respective state constitutions. Part I provides background on the importance of culturally competent education for Native students. Part II discusses the chilling effect that bills banning discussion of systemic inequality or race-related topics have on ethnic studies programs, the specific barriers that they raise to teaching Native culture and history, and the ensuing harm caused to Native students. Part III examines potential avenues for judicial relief.