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Indigeneity in the Classroom: Avenues for Native American Students to Challenge Anti-Critical Race Theory Laws

Volume 57, Issue 3

By 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.

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A Necessary Recalibration: Why the Ministerial Exception’s Bar on Whistleblower Actions Harms Teachers and Students

Volume 57, Issue 3

By 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.

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Holder v. Humanitarian Law Project’s Shadow: When Fear Suppresses Disfavored Voices

Volume 57, Issue 3

By 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.

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After Reaching the Courthouse Door: Why Lack of Affirmative Assistance Post-Pleading Violates Prisoners’ Access to Courts Right

Volume 57, Issue 3

By 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.

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Searching for Judges Who Hear: Analyzing the Effects of Colorado’s Abolition of Qualified Immunity on Civil Rights Litigation

The Common Law Volume 57, Issue 1

By Colin Cowperthwaite

“Section 1983 was born out of the failures of state courts.  Over a hundred years later, [Colorado’s Enhance Law Enforcement Integrity Act (ELEIA)] was born out of the failures of federal courts to protect individuals from civil rights violations committed by local law enforcement.  By removing qualified immunity as a defense, ELEIA challenged federal courts’ continued relevance in addressing police violence in Colorado.  But as this Comment shows, Colorado’s federal district court remains an active scene for litigating against officers who violate constitutional rights.  While there are many possible explanations for this result, ELEIA should not be taken as a failure.  On the contrary, eighty-two claims that might otherwise have gone unheard in federal courts now can be heard in state courts.  For victims of police violence, ELEIA provides a meaningful source of “ears to hear” their appeals for accountability, remedy, and justice.”

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State Constitutions and Systemic Gaps in Music Education Access

The Common Law Volume 57, Issue 1

By Corey Whitt

“The proliferation of music education in schools throughout the United States is an apparent success.  However, its application is not evenly spread across the country.  Students living in poverty are most often those who are left unable to enjoy its advantages.  Further, the disparities increase along racial lines.  The reality is that low-income students of color are more likely to forgo a music education than their affluent, white peers.

As demonstrated in cases leading into the twenty-first century, state courts can play a role in bridging the socio-economic divide of music education access.  Where state courts chose to define the minimum quality of education prescribed by their state constitutions, music experiences were acknowledged.  A modern, successful advocacy strategy, however, will likely deviate from litigation in favor of ballot measure proposals to secure a music education for all students given the inherent risk of establishing harmful legal precedent.  Through the patchwork of state ballot measures, the American electorate can promote meaningful music education experiences for all students—not only the wealthy, white children.”

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Access to Justice in “Lawyerless” Housing Courts: A Discussion of Potential Systemic and Judicial Reforms

The Common Law Volume 57, Issue 1

By Gabe Siegel

“Housing courts—and lawyerless courts more broadly—are broken.  Only one side has access to lawyers.  And given the institutional expertise, strategic knowledge, and unfair use of procedure that housing court lawyers bring, only one side has genuine access to justice.  By changing the ways in which judges interact with pro se and represented litigants, reform can provide access to justice to all parties in housing court.  Judicial reforms would decrease delay, elicit more facts, inject due process and procedural fairness into proceedings, and minimize bias.  The most important of these reforms is active judging, including procedural reform, evidentiary reform, and easier access to hearings.  As the effects of the active reforms taken by Alaska District Court Judge Washington indicate, the reforms are simple to implement and quickly make a tangible impact.  More broadly, reforms would benefit pro se litigants and the judicial system as a whole: it is ‘more effective to train one judge on how to assist a self-represented litigant than to teach hundreds of [litigants] how to be lawyers.’  It is an ‘essential democratic goal’ that the court system work fairly for all.  Reforming judging in lawyerless housing courts helps it do just that.”

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The International Legal ‘Regime’ Against Child Marriage: A Haphazard Patchwork

The Common Law Volume 57, Issue 1

By Linny Kit Tong Ng

“The existing international legal architecture designed to address child marriage is markedly deficient, representing a haphazard patchwork of provisions with varying degrees of relevance strewn throughout numerous international and regional conventions.  This framework fails to articulate a cohesive strategy for the eradication of child marriage; the language used is frequently ambiguous, resulting in standards that offer little specific or useful guidance for implementation, and lack enforcement mechanisms.  These deficiencies have precluded the establishment of a robust and enforceable global norm against child marriage.  Regional African instruments have demonstrated that linguistic precision in themselves does not guarantee compliance, as enforcement often falters due to exceptions carved out by the law for customary and religious unions, a lack of political will, or resources.

Combating child marriage requires a comprehensive and nuanced approach that extends beyond international agreements to include local collaboration.  To avoid the pitfalls of paternalism and cultural imperialism, sufficient time and effort must be invested in identifying the appropriate standards to be enshrined in a hypothetical, dedicated anti-child marriage convention.  Additionally, states must reconsider conventional approaches of imposing sanctions and dispensing incentives.  This Comment advocates for a deeper exploration of reversible rewards as a novel strategy to enhance compliance with anti-child marriage measures.

Given its intersection with private law and human rights, child marriage presents an exceptionally intricate challenge.  Efforts to eradicate the practice are further complicated by its widespread occurrence, the influences of globalization, sociocultural mores, religious beliefs, and economic conditions.  Addressing the issue effectively calls for not just legal interventions, but also a commitment to education and cultural engagement that empowers children, families, and entire communities.  Such transformational efforts are gradual and are part of broader societal movements that address gender equality and environmental sustainability.  Consequently, while the elimination of child marriage is a global imperative, it is a goal that must be pursued with careful deliberation and respect for the complex tapestry of societal dynamics.”

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Keeping Ferris Out of Foster Care: Reforming the JJDPA to Prevent Home Removals Based on Truancy

Issues Volume 57, Issue 1

By Rose Wehrman

Truancy is directly correlated with negative educational and life outcomes for students.  The state exacerbates these negative effects when it removes students from their homes for truancy.  Far from addressing the underlying causes of truancy, home removals—whether into secure or non-secure placements—cause devastating harm.

The Juvenile Justice Delinquency and Prevention Act (JJDPA) allows, with some restriction, for children to be incarcerated for truancy.  Additionally, the JJDPA has never regulated the civil removal of juvenile status offenders to non-secure yet prison-like placements.  JJDPA reform has so far focused on the harms of incarceration—a worthy cause, but one that must not overshadow the overlapping harms of non-secure removals.

This Note argues that truancy should not be handled by removing children from their homes and proposes revisions to the JJDPA that would bring the Act closer to its purpose: preventing delinquency and providing necessary services.  To achieve the intended purpose of the JJDPA, Congress must implement further reform.  This Note offers an analysis of how non-secure home removals intersect with the JJDPA and extends existing discourse through its analysis of post-2018 valid court order (VCO) exceptions.  Ultimately, this Note demonstrates how non-secure civil removals and VCO incarcerations frustrate the intended purpose of the JJDPA.

Part I discusses the scope of the truancy problem and the JJDPA’s background and context.  Part II offers insight into the unique harms of home removals, and Part III demonstrates how current loopholes frustrate the purpose of the JJDPA.  Part IV suggests revisions to strengthen the JJDPA’s protections and more closely align the bill with its purpose.

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Lethal Paralytics and the Censorship of Suffering

Issues Volume 57, Issue 1

By Drew S. Brazer

Approximately two dozen states utilize a three-drug lethal injection method to execute condemned persons.  This protocol consists of (i) an anesthetic or sedative; (ii) a paralytic; and (iii) potassium chloride (which stops the heart).  The purpose of the paralytic is purely cosmetic: it prevents witnesses from having to watch the condemned person convulse as they die.

This Note argues that when a condemned person chooses to refuse a lethal paralytic, they are engaging in First Amendment-protected expressive speech.  State regulations requiring the use of a paralytic warrant strict scrutiny because they (i) restrict speech based on subject matter; (ii) are a form of prior restraint; (iii) discriminate based on viewpoint; and (iv) compel speech.  The state’s interest in requiring the paralytic—to censor the violence of the condemned person’s death—is neither legitimate nor compelling.  As such, lethal paralytic requirements fail strict scrutiny and violate the First Amendment.

Part I of this Note outlines the history of capital punishment and the advent of lethal injection in the United States.  It details the various constitutional challenges that have been brought to bear against lethal injection protocols generally, and the use of paralytics specifically.  Part II examines the constitutional rights of incarcerated persons and considers whether an individual’s decision to refuse a paralytic can be considered expressive speech under the Spence-Johnson test.  Next, it contemplates the appropriate standard of review for regulations requiring the use of a paralytic.  Finally, it examines whether lethal paralytic requirements can survive strict scrutiny or any lesser standard of review.  Part III explores the policy implications of recognizing a condemned person’s right to refuse lethal paralytics.  Not only would acknowledging such a right advance the fundamental values of the First Amendment, it would also help to prevent needless pain and suffering.

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