Article: Meredith S. Simons, Giving Vulnerable Students Their Due: Implementing Due Process Protections for Students Referred from Schools to the Justice System, 66 Duke L.J. 943 (2017).
There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.
This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students.
Article: Khaled H. Beydoun, Between Indigence, Islamophobia, and Erasure: Poor and Muslim in “War on Terror” America, 104 Cal. L. Rev. 1463 (2016).
Nearly half of the Muslim American population is interlocked between indigence and “Islamophobia,” or anti-Muslim animus. Of the estimated eight million Muslim Americans, 45 percent of this population earns a household income less than $30,000 per year. While this statistic clashes with pervasive stereotyping of Muslim Americans as middle class, economically upwardly mobile, or opulently wealthy, it does correspond with the legal poverty line in the United States.
Since the September 11th terrorist attacks (9/11), the legal literature analyzing national security, anti-terror policies, and Muslim American civil liberties has been prolific. The emergence of “counterradicalization” policing within Muslim American communities drives this scholarly interest forward. However, since 9/11, Muslim Americans have been framed as similarly situated victims within legal literature. As a result, this body of scholarship fails to closely examine vulnerable indigent and working-class spaces where public and private Islamophobia is disproportionately unleashed. This failure compounds the injuries Muslim Americans already suffer.
This Essay intervenes to examine these liminal and overlooked spaces where indigence and Islamophobia collide. In turn, it highlights how the convergence of poverty, religious profiling and prosecution, and mounting counter radicalization policing disparately impact Muslim America’s most vulnerable demographic amid the still-escalating War on Terror.
Article: Jonathan D. Glater, Student Debt and Higher Education Risk, 103 Cal. L. Rev. 1561 (2015).
To borrow for college is to take a risk. Indebted students may not earn enough to repay their loans after they graduate or, worse, may fail to graduate at all. For students who cannot pay for college without borrowing, this risk is both a disincentive and a penalty. Greater risk undermines the efficacy of federal financial aid policy that seeks to promote access to higher education. This Essay situates education borrowing within a larger cultural and political trend toward placing risk on individuals and criticizes this development for its failure to achieve any of the typical goals of legislation that allocates risk—such as prevention of moral hazard or other, particular public policy outcomes.
The Essay describes dramatic increases in student borrowing and explains the negative effects of greater reliance on debt, which increases the risk of investing in higher education. The Essay contends that recognizing student debt as a mechanism that transfers risk bolsters criticisms of increased borrowing and provides a consistent way to evaluate aid policy. The Essay outlines an insurance regime as the logical response to undesirable or unmanageable risk. Such a regime would preserve access to higher education and mitigate the danger of borrowing for college.
New Article: Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585 (2017). Abstract below:
This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice—what this Article calls “bail nullification”—is powerful because it exposes publicly what many within the system already know to be true: that although bail is ostensibly a regulatory pretrial procedure, for indigent defendants it often serves the function that a real trial might, producing guilty pleas and longer sentences when an individual cannot afford to pay their bail. By examining the ways in which community bail funds serve the functions that a nullifying jury might—allowing popular participation in an individual case to facilitate larger resistance to the policies and practices of state actors—this Article argues that community bail funds have the potential to change how local criminal justice systems operate on the ground, shifting and shaping political and constitutional understandings of the institution of money bail. Community bail funds give a voice to populations who rarely have a say in how criminal justice is administered, especially poor people of color. And the study of bail funds helps point toward other ways in which bottom-up public participation can help create a criminal justice system that is truly responsive to the communities that it is ultimately supposed to serve.
New Article: Marc Roark, Under-Propertied Persons, forthcoming Cornell J. L. & Pub. Pol’y. Abstract below:
Property shapes the way we talk about our communities and ourselves. It also, unintentionally, shapes the way we talk about the poor. Within property, the doctrine of waste reinforces notions of autonomy, privacy, and boundary-making for property owners, while leaving those without property searching for other ways to assert these self-defining protections. Likewise, nuisance assists owners’ participation in their communities by dictating when individuals must account for harms their property use causes to neighbors. The law, however, provides few legal remedies for poor persons who are harmed by owners’ sanctioned use of property. Through the language of ownership, property doctrines facilitate special benefits for those with property, while forcing those outside of property to seek other means to assert similar benefits. Owners — landlords of gap rentals, public housing authorities, and cities — often treat their poorest residents as problems to be managed rather than residents deserving autonomy and community. Housing units are destroyed, families are displaced, and homeless are forced further out of sight. The doctrines and rules that encourage these outcomes focus on the improper, the impaired, or the imperfect instead of facilitating discourse about how living environments promote human flourishing for these residents. In this way, our property system’s rules and language create a class of persons who are under-propertied, under-housed, and under-valued.
New Articles: Stanford Journal of Civil Rights and Civil Liberties recently published a special issue: “A Lawyer’s Guide to Activism, Resistance, and Change Under Trump” (2017).
Article: David A. Papke & Elise Papke, A Foe More Than a Friend: Law and the Health of the American Urban Poor, Fordham Urban L.J. (forthcoming 2017).
Social epidemiologists insist fundamental social conditions play a large role in the health problems of the American urban poor, but these well-intentioned scholars and practitioners do not necessarily appreciate how greatly law is intertwined with those social conditions. Law helps create and maintain the urban poor’s shabby and unhealthy physical environment, and law also facilitates behaviors among the urban poor that can result in chronic health conditions. Then, too, law shapes and configures the very poverty that consigns the urban poor to the inner city with its limited social capital and political clout. Overall, law creates and perpetuates the health problems of the urban poor more than it eliminates or ameliorates them. Social epidemiologists and others concerned with improving the urban poor’s health might therefore approach law as a foe more than a friend.
Article: Khiara M. Bridges, Class-Based Affirmative Action, or the Lies That We Tell About the Insignificance of Race, 96 Boston L. Rev. 55 (2016).
This Article conducts a critique of class-based affirmative action, identifying and problematizing the narrative that it tells about racial progress. The Article argues that class-based affirmative action denies that race is a significant feature of American life. It denies that individuals—and groups—continue to be advantaged and disadvantaged on account of race. It denies that there is such a thing called race privilege that materially impacts people’s worlds. Moreover, this Article suggests that at least part of the reason why class-based affirmative action has been embraced by those who oppose race-based affirmative action is precisely because it denies that race matters, has mattered, and probably will continue to matter unless we make conscious efforts to make race matter less.
The Article proceeds in two Parts. Part I locates class-based affirmative action doctrinally. Specifically, this Part identifies class-based affirmative action as the heir of the “suspect class” to “suspect classification” shift—a shift that tells its own lie about race. The substance of this lie is that those who exist at the top of racial hierarchies are as vulnerable to denigration, stigmatization, and subordination on account of race as are those who exist at the bottom of racial hierarchies. Part II goes on to demonstrate that class-based affirmative action suffers from the same infirmities from which race-based affirmative action is charged to suffer. It argues that the reason why proponents of class-based affirmative action are sanguine about these infirmities when they are present in class-based programs, but loathe them when they are present in race-based programs, is because their opposition to race-based affirmative action is not due to these infirmities. Rather, it is due to their disdain of the work that race-based affirmative action performs. That is, race-based programs function to assert, loudly, that race still matters and does so in powerful ways. Many proponents of class-based affirmative action resist this function.
Moreover, class-based affirmative action functions to assert that we, as a society, have entered a post-racial future. That is, class-based affirmative action tells a lie about the insignificance of race. Many proponents of class-based programs likely find these programs attractive and comforting for that very reason. The importance of this Article is that it uncovers the narrative work that class-based affirmative action performs, and it argues that those who are interested in racial justice ought to resist these programs because of their dangerous discursive effects.
Article: Gregory R. Day & Salvatore J. Russo, Poverty and the Hidden Effects of Sex Discrimination: An Empirical Study of Inequality, 37 Penn. J. Int’l L. 1183 (2016).
Sexist laws are more prevalent in regions where poverty is endemic. The corollary is true as well: the places where women tend to experience better treatment are typically more highly developed. The legal academy has drawn several inferences from this observation, including the observations that poverty and the development process appear to be detrimental to women’s rights. But despite the strength of this relationship, few legal studies seek to understand precisely why gender inequality seems to be inextricably linked to poverty.
Our research finds the opposite of what is generally assumed: the act of depriving women of fundamental rights is the very cause of underdevelopment. First, using a law and economic approach, sexist laws appear to create perverse behavioral incentives whereby actors rationally engage in inefficient behaviors. This is because sexist laws, in contrast to other forms of discrimination, burden society’s basic economic unit—the family. For instance, regions that prohibit women from earning a wage depress the rate of investment since single-income families must approach the market overcautiously. These deductions are then supported by an original empirical analysis, which indicates that gender inequality and poverty are significantly and powerfully connected. Sexist laws are thus less the result of underdevelopment as much as its very cause.