Volume 46 Masthead

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Vermont Law Review

Volume 46
2021-2022


 

Editor-in-Chief
Diarra A. Raymond

Senior Managing Editor
Lorentz Hansen

Senior Articles Editor
Simeon Brown

Senior Notes Editor
Heather Francis

Business Manager
Jake Evans

Managing Editors
Mary Franco
Noy S. Kruvi
Kijana E. Plenderleith

Articles Editors
Benjamin Fuller
Madison P. Prokott
Michael A. Taddonio
Joseph D. Coffey
Patrick A. Raya
Brandon R. Sheffert

Head Notes Editors
Heidi M. Guenther
Robert Baker
Ashely Monti

Vermont Editor
James Mulhall III

Symposium Editors
Rico J.J. Edwards
Mariah N. Harrod

Alumni Editor
Calum R. Dixon

Technology Editor
Christopher J. Davis

Editors
Steve Z. Weng

 

Staff

 

Sara Babcock
Jordan Barker
Stephanie Bing
James Brien
Caitlin Carroll
Clelia Casciola
Brooke Catalano
Elizabeth Cave
Brooke Chmura

Emily Davis
Alexandre Day
Thomas Durham
Alexander Mason Fagotti
Madison Gaffney
Luis Gonzalez
Heidi Johnson
Meagan Kirby
Elsa Larsen
Sarah Lottman

Kaelin (Liz) Mackey
Erin McClelland
Isabella Montoya
Stephanie Nham
Tessa Oliver
David Olson
Lindsay Rostron
Nina VanDerZanden
Morgan Zielinski

Faculty Advisor
Prof. Catherine Fregosi

CRT Bans Disallow Discussion of AZ Election Law Case

By Nicholas Barry Creel | Georgia College and State University, Assistant Professor of Business Law and Ethics

July 21, 2021

The Supreme Court decision in Brnovich v. Democratic National Committee regarding Arizona election laws immediately and predictably drew considerable criticism from numerous voting rights advocates.[1]  The two laws challenged in this instance allowed election officials to discard provisional ballots cast if a voter showed up at the wrong precinct and barred third-party groups from collecting and delivering absentee ballots, also known as ballot harvesting.[2]  Those challenging the laws contended that they violated § 2 of the Voting Rights Act or even possibly the 15th Amendment given the disparate impact these laws would have on voters of color.[3]  However, the Court held that neither law was enacted with discriminatory intent, nor did they present any hindrances beyond what are the “usual burdens of voting”[4].  Therefore, these two laws were deemed permissible acts by the state as it oversaw its elections.[5]

As a law professor, it’s my job to read these decisions so that I may teach the points of law that come from them.  I take pride in doing just that regardless of my personal views as to whether any case was decided “correctly” or not.  It’s on me as an instructor to teach students the points of law from Supreme Court cases, not to impart any political biases I carry.  Setting one’s emotions aside in this process can be difficult, but after years of practice, I’d like to think I’ve become adept at just that.

However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it.  I am, in all honesty, disappointed in the Court’s decision, but that isn’t what has been eating away at me.  My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on critical race theory (CRT) make their way to Georgia’s universities.[6]

As a primer as to why this is the case, it helps to note that CRT is a diverse field of academic thought but a common thread throughout is that even racially neutral laws can have negatively disparate impacts on racial minorities.[7] In essence, being color blind can still lead to results that leave minorities systematically worse off than whites.[8]

It’s important to note here that I am not a CRT scholar, nor have I ever made an overt decision to try and teach this concept to my students.  Even so, I have at least a basic understanding of it such that I at least know it when I see it. 

To that end, in reading the majority opinion of this case, I saw what is unmistakably a reference to CRT.[9]  While I genuinely doubt this was an intentional reference, their intentions do not affect this determination.  Specifically, in siding with the state of Arizona to uphold these new voting laws, the opinion mentioned that, because of their lower levels of “employment, wealth, and education,’’ neutral and color-blind policies will impede minority voting rates.[10]  In other words, the Supreme Court is concluding that the institutional realities of voting lead to disparate outcomes and a neutral (color blind) policy will “predictably” lead us to this result.  This is, as discussed above, the exact sort of observation that almost any CRT scholar will contend as central to their field of study.

Teaching students this majority opinion is therefore inexorably tied to teaching them a core concept of CRT, regardless of my intention to do so or not. My options are to either not teach the case or to expose my students to a core tenet of this controversial philosophy.  So now I sit contemplating the terrifying reality that banning CRT would functionally prevent me, a law professor, from teaching a Supreme Court decision to my students.  There is perhaps no better illustration of absurdity than this, yet it is the reality I and countless other law professors face.

Were this a mere hypothetical hindrance, I’d almost find it amusingly ironic.  Instead, it’s a very real prohibition that has been enthusiastically embraced by the Republican Party. These bans will stifle educators who face the loss of their livelihood should they even accidentally discuss a theory even most law professors like myself are only vaguely familiar with. 

The result among educators will be a general fear and therefore aversion to ever discussing race in the classroom.  That is what lies at the root of my despondency.  In reading this case and seeing these bans spread, I’ve come to the realization that educators everywhere, even where these bans are not in effect, will be pruning their curriculum to stave off attack.

[1] Reid Wilson, Supreme Court ruling shocks voting rights activists, academics, The Hill (July 1, 2021), https://thehill.com/regulation/court-battles/561190-supreme-court-ruling-shocks-voting-rights-activists-academics.

[2] Brnovich v. Democratic Nat’l Comm., No 19-1257, 594 U.S. ___ at 1 (July 1, 2021).

[3] Id.

[4] Id. at 26.

[5] Id. at 30.

[6] Jack Dutton, Critical Race Theory Is Banned in These States, Newsweek (June 11, 2021), https://www.newsweek.com/critical-race-theory-banned-these-states-1599712.

[7] See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1060–67 (1991) (“[W]e are not currently a colorblind society . . . race has a deep social significance that continues to disadvantage blacks and other Americans of color. While the legal strategy of colorblindness achieved great victories in the past, it has now become an impediment in the struggle to end racial inequality.”).

[8] See generally Critical Race Theory: The Key Writings That Formed the Movement passim (Kimberlé Crenshaw et al., eds. The New Press 2010); accord Gary Peller, I’ve Been a Critical Race Theorist for 30 Years. Our Opponents Are Just Proving Our Point For Us., POLITICO (June 30, 2021), https://www.politico.com/news/magazine/2021/06/30/critical-race-theory-lightning-rod-opinion-497046.

[9] See Brnovich, No 19-1257, 594 U.S. at 18 (“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.”).

[10] Id.


About the Author

Nicholas Creel is an Assistant Professor of Business Law and Ethics at Georgia College and State University with a Ph.D. in Political Science from Texas Tech University, a JD from the University of Dayton School of Law, and an LL.M. from St. Mary’s University School of Law.

 

The Disclosure Debates: Panel Videos

OPENING REMARKS

President and Dean Marc Mihaly Professor of Law Janet Milne

ENVIRONMENTAL LAWS & DISCLOSURE REQUIREMENTS Sponsored by the Environmental Law Society

Moderator: Pat Parenteau

Shakeb Afsah An International Perspective on Environmental Disclosure

Mark Cohen Can Information Disclosure Policies Help Reduce Greenhouse Gas Emissions?

Katrina Kuh Environmental Disclosure: Individuals as Audience and Subject

Matthew McFeeley Environmental Disclosure: Lessons from the Fracking Context

Shailesh Sahay Benefits of Disclosure Versus Protection of Innovation Across Diverse Business Areas

FINANCIAL DISCLOSURES AS REGULATION Sponsored by the Business Law Society

Moderator: Jennifer Taub

Susan L. Donegan Financial Services Regulation: Balancing Confidentiality with a Need to Know

Joan MacLeod Heminway Investor and Market Protection in the Crowdfunding Era: Disclosing to and for the “Crowd”

Sanford Lewis Securities Law as An Environmental and Human Rights Accountability Framework

Ciara Torres-Spelliscy The SEC and Dark Political Money

KEYNOTE ADDRESS Sponsored by the Women’s Law Group

Katherine McFate Disclosure: An Effective Tool or Fruitless Charade in the Struggle to Improve Corporate Behavior?

INFORMATION DISCLOSURE THROUGH FOOD & PRODUCT LABELING Sponsored by the Food & Agricultural Law Society and the Center for Agriculture & Food Systems

Moderator: Laurie Beyranevand

Christine DeLorme Whole Truths and Half Truths: Disclosure and the FTC Act

Brian Dunkiel Are Consumers the New Environmental Regulator?

George Kimbrell The Constitutionality of State Genetically Engineered Food Labeling

Walter Olson Five Train Wrecks of Information Disclosure Policy

David Zuckerman

A DEBATE ON CAMPAIGN FINANCE DISCLOSURE Sponsored by the Federalist Society

Moderator: Ross Sneyd

Debaters:

Tara Malloy and Bradley Smith

9th Annual Norman Williams Distinguished Lecture in Land Use Planning and the Law with Robert L. Liberty

Robert L. Liberty’s talk, titled “Rising to the Land Use Challenge: How Planners and Regulators Can Help Sustain Our Civilization,” will address global climate change as only one of the multiplying signs that global civilization is threatened by humans’ destruction of the natural systems that support us. “In this country many land use planners have the training, skills and knowledge to challenge the prevailing orthodoxy, to restate the necessity of the regulation of the use of land and to play a leadership role in preparing our nation and our world for the changes that we must make to sustain our civilization,” he says. The lecture will be published in Volume 38 of the Vermont Law Review.

ABOUT THE WILLIAMS LECTURE

Norman Williams came to Vermont Law School in 1975, after a long and distinguished career in public service and teaching, particularly in the area of land use planning. Professor Williams played a key role in founding Vermont Law School’s Environmental Law Center.

Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.

Learn more about the submissions process >