Book Bans and the First Amendment: How the Removal of LGBTQ-centric Books Violates the First Amendment’s Prohibition on Viewpoint Discrimination

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By Ian McDonald | Articles Editor

November 29, 2023

Introduction

            There has been an “unprecedented uptick” in book challenges.[1] There are some similarities between this moral panic and those that have preceded it, specifically the focus on protecting children.[2] This time, however, the challenges target LGBTQ-authored or LGBTQ-centric books.[3] While these challenges are justified by smearing the materials as obscene or inappropriate, the claim is often entirely without merit.[4] Instead, the differential treatment against materials with a pro-LGBTQ lean constitutes a viewpoint-based regulation on speech, prohibited by the First Amendment.[5]

            Public school libraries have been one of the primary locations for this battle.[6] The unique nature of public school libraries has left the question of when a book is protected by the First Amendment murky. When analyzing the removal of books from public school libraries, there are at least three parties with implicated legal interests: parents, schools, and students.

  1. Parents

            Parents have an interest in how they raise their kids. The Supreme Court has long recognized that the Fourteenth Amendment’s Due Process Clause protects parents’ right to “establish a home and bring up children.”[7] However, this right is not absolute[8]—particularly with regards to public school curriculum.[9] Most relevant here, a parent’s right to control their child’s upbringing does not “encompass[] a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children.”[10] Parents cannot be forced to send their children to a state-sponsored school.[11] Once enrolled, though, a parents interest in directing their child’s education does not supersede the government’s interest in controlling curriculum.[12]

  1. Schools

            The government, through school boards, has an interest in “inculcating fundamental values necessary to the maintenance of a democratic political system.”[13] As “a principal instrument in awakening the child to cultural values,”[14] the Supreme Court has granted school administrators broad discretion over curriculum and curricular activities.[15] Curricular expressive activity may be restricted so long as the restriction is reasonably related to legitimate pedagogical concerns.[16] In this context, curricular activities are activities: (1) “supervised by faculty members”; (2) “designed to impart particular knowledge or skills to student participants and audiences”; and that (3) “might reasonably [be] perceive[d] to bear the imprimatur of the school.”[17] However, the discretion is limited when analyzing speech rights in a non-curricular context.[18]

  1. Students

            It is well established that students do not “shed their constitutional rights . . . at the schoolhouse gate.”[19] Even so, those rights must be evaluated in the unique context of the school environment.[20] Under Tinker, students are free to exercise their First Amendment rights so long as that exercise does not “materially and substantially interfere” with the “work of the school.”[21] Restrictions on non-curricular student speech are evaluated under this more speech-permissive test.

            In summary: when material is properly considered curricular, the school may restrict students’ First Amendment rights when the restriction is reasonably related to legitimate pedagogical concerns. On the other hand, the First Amendment rights of students in non-curricular environments can be curtailed only if the speech would “materially and substantially interfere” with the “work of the school.”[22]

  1. First Amendment Rights in the Context of Public School Libraries

            If, under the conditions outlined above, students retain First Amendment rights while at school, the question becomes this: does the First Amendment offer any protection for books in a public school library? The Supreme Court has never coherently answered this question.[23] The lone opinion on point features seven opinions (a plurality, two concurrences, and four dissents).[24] There was broad agreement, however, that it would be improper for a school board to remove books from a public school library for discriminatory reasons.[25] Further, the principle that the First Amendment prohibits the removal of books from a public school library for discriminatory purposes tracks with Supreme Court jurisprudence on public forums and government speech. 

            First Amendment rights on government property implicates the public forum doctrine. Broadly speaking, the public forum doctrine describes types of public property and the varying levels of government power to regulate private speech rights on each type.[26] The Supreme Court has never clarified how to categorize a public school library.[27] Regardless, even at its most restrictive, the public forum doctrine does not allow viewpoint-based discrimination.[28]

            Additionally, an “important interplay exists” between the public forum doctrine and the government speech doctrine.[29] Under this doctrine, the “government may engage in viewpoint discrimination in choosing what positions to favor . . . in the exercise of its own speech.”[30] Thus, government speech is immune from challenge under the First Amendment.[31] In the context of schools, curricular material covered by Hazelwood is analogous to government speech.[32] The government retains broad, even discriminatory, discretion.[33] Non-curricular speech, then, is covered by the public forum doctrine—and the accompanying prohibition on viewpoint-based discrimination.[34]

            Accordingly, public school administrators should tread lightly around removing LGBTQ-centric materials from libraries. While school administrators may remove materials under certain conditions, a pro-LGBTQ message is not a permissible reason for removal. Rather, removing pro-LGBTQ material over disagreement with the message is prohibited viewpoint discrimination.

 

[1] Susanna Granieri, An Unprecedented Uptick in Book Bans Brings First Amendment Scrutiny, First Amendment Watch (Sept. 14, 2022), https://firstamendmentwatch.org/an-unprecedented-uptick-in-book-bans-brings-first-amendment-scrutiny. See also Toby Chavez, As LGBTQ book challenges rise, some Louisiana librarians are scared to go to work, PBS (Feb. 27, 2023), https://www.pbs.org/newshour/nation/as-lgbtq-book-challenges-rise-some-louisiana-librarians-are-scared-to-go-to-work.

[2] See, e.g., Jeremy C. Young & Jonathan Friedman, Opinion, Today’s book bans echo a panic against comic books in the 1950s, Washington Post (Oct. 17, 2022), https://www.washingtonpost.com/made-by-history/2022/10/17/book-ban-comic-books-panic/ (comparing today’s book bans to the 1950s panic against comic books).

[3] See, e.g., Scott McFetridge et al., School library book bans are seen as targeting LGBTQ content, AP NEWS (Mar. 20, 2023), https://apnews.com/article/lgbtq-book-bans-91b2d4c086eb082cbecfdda2800ef29a (discussing how school library book bans are targeting LGBTQ content); Sabrina Baêta, Frequently Banned Books Featuring Transgender Stories, PEN (Mar. 30, 2023), https://pen.org/banned-books-transgender-stories (noting that stories featuring transgender individuals and characters make up roughly 9% of banned books, despite their underrepresentation); Chavez, supra note 1 (“The majority of the book challenges across Louisiana last year focused on titles for children and young adults with LGBTQ themes.”).

[4] For example, the children’s book And Tango Makes Three—a heartwarming tale based on a true story about two male penguins hatching and nurturing a chick of their own—has been, and remains, one of the most challenged titles. See Barbara Jones, And Tango Makes Three waddles its way back to the number one slot as America’s most frequently challenged book, American Library Association (Apr. 11, 2011), https://www.ala.org/news/press-releases/2011/04/and-tango-makes-three-waddles-its-way-back-number-one-slot-america’s-most (noting how Tango was the fourth-most frequently challenged book of the 2000’s and the sixth-most challenged book of the 2010’s). See also Brooke Leigh Howard, Florida School District Bans a Book on . . . Penguins, Daily Beast (Feb. 22, 2023), https://www.thedailybeast.com/and-tango-makes-three-florida-school-district-bans-a-book-on-penguins; Donald Padgett, Florida School District Bans Book on Penguin Couple, Advocate (Jan. 10, 2023) https://www.advocate.com/news/2023/1/10/florida-school-district-bans-book-penguin-couple-dont-say-gay.

[5] See Elizabeth M. Glazer, When Obscenity Discriminates, 102 Nw. U.L.Rev. 1379, 1426–27 (arguing that, in light of Lawrence v. Texas, 539 U.S. 558 (2003), “homosexuality [was] transform[ed], for First Amendment purposes, from subject matter to viewpoint.”); See also Rosenberger v. Rectors and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (“When the government targets . . . particular views . . . , the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (internal citations omitted).

[6] Am. Libr. Ass’n, The State of America’s Libraries 2 (2022) (noting that 44% of challenges are to books in school libraries).

[7] Meyer v. Nebraska, 262 U.S. 390, 399 (1923). See also, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (striking down a state law on the basis that it “unreasonably interfere[d] with the liberty of parents . . . to direct the upbringing and education of children under their control”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“[T]he custody, care and nurture of the child reside first in the parents.”).

[8] See, e.g., Runyon v. McCrary, 427 U.S. 160, 177 (1976) (holding that a parent’s right to control their child’s education did not include having your child educated in a private racially segregated school); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 291 (5th Cir. 2001) (discussing other cases that have limited parental oversight); Murphy v. State of Arkansas, 852 F.2d 1039 (8th Cir. 1988) (hold that homeschooled children may be subjected to standardized tests, even over parental objection).

[9] Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699 (10th Cir. 1998) (“Parents simply do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority over that subject.”).

[10] Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525, 533 (1st Cir. 1995). Here, the 1st Circuit rejected this interpretation, holding that “the rights of parents as described by Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools.” Id. at 534. Otherwise, “schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter.” Id.

[11] Wisconsin v. Yoder, 406 U.S. 205, 235–36 (1972).

[12] See, e.g., Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1207 (9th Cir. 2005) (concluding that the parents’ right to control a child’s education “does not extend beyond the threshold of the school door”); Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005) (“[P]arents may have a fundamental right to decide whether to send their child to public school, they do not have a fundamental right to direct how a public school teaches their child.”) (emphasis omitted).

[13] Ambach v. Norwick, 441 U.S. 68, 76–77 (1979).

[14] Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

[15] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988).

[16] Id. at 273.

[17] Id. at 271.

[18] Id.

[19] Tinker v. Des Moines Indep. City Sch. Dist., 393 U.S. 503, 506 (1969). See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (holding that school boards must perform their “important, delicate, and highly discretionary functions . . . within the limits of the Bill of Rights”).

[20] Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986) (citing New Jersey v. T.L.O., 469 U.S. 325, 340–42 (1985)); see also Thomas v. Board of Education, Granville Central Sch. Dist., 607 F.2d 1043, 1057 (CA2 1979) (Newman, J., concurring) (“[T]he First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.”).

[21] Tinker, 393 U.S. at 509

[22] Id.

[23] See generally Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982).

[24] See id. at 855–75 (Brennan, J., plurality); id. at 875–82 (Blackmun, J., concurring); id. at 883–84 (White, J., concurring); id. at 885–93 (Burger, C.J., dissenting); id. at 893–903 (Powell, J., dissenting); id. at 904–20 (Rehnquist, J., dissenting); id. at 921 (O’Connor, J., dissenting). Brennan based his plurality opinion on the students’ right to receive information under the First Amendment. Blackmun concurred in judgment but based his analysis on the First Amendment’s prohibition on viewpoint-based discrimination.

[25] Id. at 870–72 (Brennan, J., plurality) (“[S]chool boards may not remove books . . . simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox . . . .”) (internal citations omitted); id. at 879 (Blackmun, J., concurring) (“[T[he State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.”); id. at 883 (White, J., concurring) (concurring with the judgment on the basis that summary judgment was precluded due to an unresolved material issue of fact. That unresolved material issue of fact, “as [White] underst[oo]d it” was the reason or reasons underlying the book’s removal. By concurring, White’s opinion is best understood as an agreement, however tacit, that school boards exceed their discretion when they remove materials for discriminatory reasons); id. at 907 (Rehnquist, J., dissenting) (“cheerfully conced[ing]” that it would be improper for a school board, motivated by racial animus, to remove all books by Black authors).

[26] See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983). There is a significant amount of confusion over the contours of these categories. See generally, Marc Rohr, First Amendment Fora Revisited: How Many Categories Are There?, 41 Nova L. Rev. 221 (2017) (discussing uncertainty surrounding the public forum doctrine; analyzing the different, often overlapping, ways the Supreme Court and lower courts have defined and applied the public forum categories, and; questioning the usefulness of the doctrine).

[27] In U.S. v. American Library Ass’n, Inc., a plurality of the Court categorized (non-school) public libraries as a non-public forum for the purposes of evaluating an Internet filter. U.S. v. American Library Ass’n, Inc., 539 U.S. 194, 204–07 (2003). However, that case centered on adding material to the library. This distinction is crucial under the public forum doctrine. Once the government opens a nonpublic forum to certain categories of speech, it cannot discriminate within that category based on viewpoint.

[28] See Perry, 460 U.S. at 46; Rosenberger, 515 U.S. at 829. See also Pico, 457 U.S at 881 (Blackmun, J., concurring) (“While the State may act as ‘property owner’ when it prevents certain types of expressive activity from taking place on public lands, . . . few would suggest that the State may base such restrictions on the content of the speaker’s message, or may take its action for the purpose of suppressing access to the ideas involved.”) (citing Police Dept. of Chicago v. Mosley, 408 U.S. at 96) (internal citation omitted).

[29] Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:1:50 (2022).

[30] Id. See also Rust v. Sullivan, 500 U.S. 173, 193 (1991).

[31] See Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009).

[32] See Pico, 457 U.S. at 908–09 (Rehnquist, J., dissenting) (noting the special role of the government when acting as educator); id. at 921 (O’Connor, J., dissenting); Ronna Greff Schneider, 1 Education Law §2.8 Curriculum (2022) (“The school’s curriculum may be viewed as the speech of the school itself.”).

[33] See, e.g., Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 97 (3d Cir. 2009), cert. denied, 130 S. Ct. 1137 (2010) (upholding school’s ability to limit parental speech, when that parent is participating in curricular activities); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 795 (5th Cir. 1989) (“[T]he [F]irst [A]mendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers.”); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332 (6th Cir. 2010), cert. denied, 131 S. Ct. 3068 (2011) (“A teacher’s curricular and pedagogical choices are categorically unprotected, whether under Connick or Garcetti.”). But see Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021) (concluding that a university could not, under the First Amendment, terminate a professor who insisted on misgendering their students in class. The court held that, while the professor had made statements pursuant to their official duties, Garcetti did not apply because of an academic exception to the public employee speech doctrine. Further, the court held that the mandatory use of preferred pronouns in the classroom was a matter of public concern under the Pickering-Connick test. Because of this, and the importance of academic freedom in a state university, the court held that the professor’s speech was protected)

[34] See Brown v. Bd. of Regents of Univ. of Neb., 640 F. Supp. 674 (D. Neb. 1986) (holding that the university’s decision to cancel the viewing of a controversial movie was a non-curricular decision and therefore must be viewpoint neutral)

Environmental Law, Time, and Environmental Disasters

By Alexis McCullough | Articles Editor

November 28, 2023

The law has shaped how humans react and are affected by the environment. Even when the environment is affected by pollution, fires, or other disasters, there is little focus on ecological sustainability and restoration or slow, insidious environmental impacts such as climate change or accumulating plastics on Earth. Instead, the legislature ordered the law around our collective human destiny. Pollution and other environmental disasters can also bring a great risk to nature and to humans, and the cumulative effects are over a long period of time often unknown until too late because of poor cost-benefit and risk analysis.[1] Water and air pollution have been a problem since the earliest days of human civilization––largely because of human activity from farming and metallurgy––and continues even now in the modern era.[2] Humans have a great impact on the Earth’s atmosphere and its water resources, yet the scientific knowledge gained over the last century or so has brought to light just how great our impact really is. 

Rising greenhouse gases drive climate change and alter the atmosphere composition, which can bring dangerous weather and the warming of the Earth.[3] Substances not occurring in nature and human-invented such as per- and polyfluorinated alkyl substances (PFAS), or forever chemicals, can be found in the water and air.[4] Unfortunately, PFAS can also be found in human and animal blood all over the world and cannot safely be broken down.[5] The above environmental problems pose a gap in the law: the law can only go so far in its reach when the scale goes beyond what the human mind can comprehend.

There is a question of risk. How much humans are willing to tolerate if the body was never meant to defend itself against pollution? Quite a lot because humans are adaptable. But tolerance might come from ignorance or the lack of being able to track the changes over years and years. Unravelling the slow violence of environmental harm and harm to human health and starting the path to a sustainable restoration requires restructuring of environmental law. Environmental law needs to adapt so that it can control rapid and far-reaching harms from long-term health effects on humans and the ecosystem, and ensure an obligation to the future to prevent nature from unraveling in response to anthropogenic changes. 

Adapting environmental laws to be more flexible would control situations when harms occur slowly or too quickly.[6] Resonance is likely necessary to allow the law to reach across other timespans––giving the law more flexibility would allow governments to anticipate the new harms and to prepare for the future; flexibility is also needed to adapt from past events.[7] Layering different timespans within the structure of environmental law would provide redress for many different problems that are continuous in nature or accumulate after some period of time.[8] While this kind of structure is not used in environmental statutes listed above, it is used in energy law.[9]

Energy governance already brings infrastructure risks using “statistical and probabilistic calculations, foresight technologies, and construct[ing] . . . scenario models.”[10] By foreseeing future events, energy governance is successful in adapting for disruptive events in the power sector, adjusting as needed based on energy demands and keep the systems functioning.[11] There must be a way to bounce back and to ensure resilience in environmental law just as the energy grid does after a power blackout or if the energy infrastructure breaks down.[12] There are certain scenarios where allowing for more flexibility would assist environmental law.

When an environmental law’s response to risk or harm that is not apparent until later or is rooted far in the past, then a change in the regulatory scheme based on disruptive environmental events in the regulatory scheme is vital to improve responses to disasters. Examples include climate change, accumulated pollution, and reckless harm to the environment such as depleting natural resources. This change in environmental law would assist in reducing the risk and uncertainty of the harms on human health and the environment. The first example would be people who are harmed slowly over a period of years without realizing the effects of the pollutant.[13] The second example would be that the pollution or harm is able to extend beyond the human lifespan or that multiple generations of humans could be affected.[14] This is particularly important in the context of environmental justice where majority poor or minority communities are affected by pollutants. Third, the temporality of pollution exposure reaches across generations and can affect both the longevity and the general health of humans. This concept is particularly worrying in the context of air pollution when it can reduce humanity’s overall lifespan.[15] Unfortunately, with the above scenarios, it is difficult to face human mortality and the environment’s degradation at the same time.

Overall, environmental law needs to change to expand beyond the limitations set in the linear-temporal framework as well as consider the sometimes-deadly temporal amnesia that occurs when society does not remember past harms or accepts the slowly-occurring harms to humans and the environment because it is easier to adapt to slow harms than to perceive the enormity of them. This change should also be in conjunction with allowing for the environment and natural resources to recover as well as ensuring justice for people harmed by long-lived environmental disasters. 

[1] Ecological Disasters, COUNCIL ON FOREIGN RELATIONS, https://www.cfr.org/timeline/ecological-disasters (last visited Nov. 8, 2022).

[2] Joseph Stromberg, Air Pollution Has Been a Problem Since the Days of Ancient Rome, Smithsonian Magazine (Feb. 2013), https://www.smithsonianmag.com/history/air-pollution-has-been-a-problem-since-the-days-of-ancient-rome-3950678/.

[3] Global Climate Change: Vital Signs of the Planet, NASA, https://climate.nasa.gov/ (last visited Nov. 8, 2023).

[4] PFAS Explained, U.S. EPA, https://www.epa.gov/pfas/pfas-explained (last updated Oct. 25, 2023).

[5] Id.

[6] Benjamin J. Richardson, Time and Environmental Law: Telling Nature’s Time 15–18 (2017).

[7] Id. at 7–8.

[8] Id. at 15–18.

[9] Antti Silvast et. al, Energy Governance, Risk and Temporality: The Construction of Energy Time Through Law and Regulation in Law and Time 212–28 (Sian Beynon-Jones & Emily Grabham eds., 2021).

[10] Id. at 213.

[11] Id. at 214.

[12] Id. at 217–18.

[13] Pollution Could Be Harming Every Part of Your Body. Here’s How, WORLD ECONOMIC FORUM (May 23, 2019), https://www.weforum.org/agenda/2019/05/pollution-could-be-harming-every-part-of-your-body-here-s-how/.

[14] Id.; John Voorheis, Air Pollution Diminishes Future Generations’ Economic Opportunities, U.S. Census Bureau (Feb. 22, 2021), https://www.census.gov/library/stories/2021/02/air-pollution-diminishes-future-generations-economic-opportunities.html.

[15] Air Pollution Cuts Life Expectancy By More Than Two Years, Study Says, REUTERS (June 15, 2022), https://www.reuters.com/business/healthcare-pharmaceuticals/air-pollution-cuts-life-expectancy-by-more-than-two-years-study-2022-06-14/.

Confronting Maine’s Indigent Defense Crisis: Lessons to be Learned from the Green Mountain State

By: Natalie May | Vermont Editor

November 27, 2023

Recent reporting reveals that Maine’s indigent defense system is on the brink of catastrophe.[1] During the 2022 fiscal year, Maine reported a record 31,257 indigent defense cases.[2] The annual average number of indigent defense cases in Maine is approximately 26,500.[3] Meanwhile, the number of attorneys willing to take court-appointed cases has dropped by more than 50% statewide over the past three years. In May 2019, there were 410 attorneys on the Commission’s roster.[4] The COVID-19 pandemic compounded preexisting challenges in Maine’s judicial system.[5] In September 2022, there were less than 170 attorneys on the roster.[6] By January 2023, there were just 136 attorneys, 64 attorneys accepting adult criminal cases and 72 attorneys willing to take on child protective cases, in the entire state of Maine.[7]

This situation is a result of how Maine provides counsel to indigent defendants. Maine is the only state in the country that does not have a public defender’s office providing counsel to indigent individuals who have been charged with crimes.[8] Instead, a shrinking roster of private, court-appointed defense attorneys provide (almost) all of Maine’s constitutionally required indigent defense.[9] This method of providing defense is failing Maine’s indigent defendants. Maine need only look west, over the tops of the White Mountains to Vermont, for an example of how a rural state successfully fulfills its constitutional duties.

Vermont provides counsel to indigent defendants through two hybrid programs: public defense and assigned counsel.[10] Of the fourteen offices statewide, seven are staff offices—staffed by public defenders—and seven are contract offices.[11] When conflicts arise with public defense, the court appoints an assigned counsel contractor. When conflicts arise with both public defense and assigned counsel, the court will assign an attorney ad hoc.[12] Caseload relief contractors provide assistance to staff offices statewide.[13] Vermont’s Office of the Defender General also has specialized offices that handle juvenile matters, prisoners’ rights, and appeals to the Vermont Supreme Court.[14]

Every other state has moved away from utilizing private defense attorneys to provide principle indigent defense services for two primary reasons.[15] The first is the challenge associated with forecasting and containing the costs of a private defense system.[16] The second is the difficulty of supervising and training private attorneys to ensure adequate representation is being provided to indigent clients.[17] To address these concerns, and because of Vermont’s successful hybrid model, Maine should adopt Vermont’s method of providing counsel to indigent criminal defendants.

Now is the time for Maine to act, as reporting indicates that the situation continues to evolve on a near daily basis. Leadership is in flux. In January, Maine’s first supervisory public defender resigned after just one month on the job.[18] He was one of the first five public defenders hired by the State of Maine in December 2022.[19] Then, in February, the executive director of the Commission, Justin Andrus, announced his resignation.[20]

The funding landscape is also shifting. In late February, the Commission voted to increase pay for court-appointed attorneys from $80 to $150 per hour.[21] Governor Janet Mills had approved the supplemental budget, which included funding that authorized the Commission’s decision.[22] This announcement may have persuaded some Maine attorneys in returning to court-appointed work.[23] According to the Commission, within a few weeks, the number of rostered attorneys had increased by roughly 40%.[24]

Then, in mid-March, the Maine Advisory Committee to the U.S. Commission on Civil Rights sent a letter to high-ranking Maine officials, urging them to increase funding for the state’s indigent defense system.[25] The Advisory Committee is working on a report, to be published later this year, outlining the civil rights implications of Maine’s “overburdened” indigent defense system.[26] Because the State’s biennium budget is currently being considered by the Legislature, however, the Advisory Committee released preliminary recommendations that align with the Maine Commission on Indigent Legal Services’ budget proposal.[27] Maine’s Judiciary Committee has proposed a more modest budget, but a budget that nonetheless includes $3 million to open the first county-based public defender office and funding to maintain the wage for court-appointed lawyers at $150 per hour.[28] All this news in the last three months.

Maine is on the brink of real change; is finally grappling with the best path forward. Suddenly, “Maine has an opportunity to realize a modern, just and equitable legal system.”[29] But Maine’s work will not be done until there is a lawyer for every Mainer who finds themselves caught up in the criminal legal system. Whether a public defender or a contracted private attorney, in Portland or in Presque Isle, charged with petty theft or with murder. Every day without such a system is a day when Mainers are being denied a constitutional right—the right to counsel.

[1] See, e.g., Kevin Miller, Commissioner Warns Maine’s Indigent Legal System has ‘Gone Over a Cliff,’ Me. Pub. (May 24, 2022), https://www.mainepublic.org/courts-and-crime/2022-05-24/commissioner-warns-maines-indigent-legal-system-has-gone-over-a-cliff (explaining that criminal defendants are being held in jail without counsel because there are not enough attorneys willing to represent indigent defendants).

[2] Samantha Hogan, Availability of Maine Defense Lawyers Reaches All-Time Low, Me. Monitor (July 5, 2022), https://www.themainemonitor.org/availability-of-maine-defense-lawyers-reaches-all-time-low/.

[3] Id.

[4] Miller, supra note 1. Note that this roster does not appear to be publicly available.

[5] See Emily Allen, Backlogs Causing Delays in Thousands of Maine Court Cases, Portland Press Herald (Apr. 3, 2022), https://www.pressherald.com/2022/04/03/backlogs-causing-delays-in-thousands-of-maine-court-cases/ (describing thousands of cases pending in Maine’s judicial system, both criminal and civil).

[6] Kevin Miller, Indigent Legal Defense Commission Asks Lawmakers to Approve $13M for ‘Emergency’ Situation, Me. Pub. (Sept. 28, 2022), https://www.mainepublic.org/politics/2022-09-28/indigent-legal-defense-commission-asks-lawmakers-to-approve-13m-for-emergency-situation.

[7] Samantha Hogan, New Public Defenders Help but Don’t Fully Alleviate Court’s Troubles Finding Enough Defense Lawyers, Me. Monitor (Jan. 15, 2023), https://www.themainemonitor.org/new-public-defenders-help-but-dont-fully-alleviate-courts-troubles-finding-enough-defense-lawyers/.

[8] Sixth Amend. Ctr., The Right to Counsel in Maine: Evaluation of Services Provided by the Maine Commission on Indigent Legal Services 26 (2019) [hereinafter Sixth Amend. Ctr. Report].

[9] Miller, supra note 1; see Kevin Miller, Maine’s Top Judge Makes Plea For More Attorneys to Address ‘Crisis, Me. Pub. (Nov. 10, 2022), https://www.mainepublic.org/courts-and-crime/2022-11-10/maines-top-judge-makes-plea-for-more-attorneys-to-address-crisis (noting that earlier in 2022, the Commission received stated funding to hire its first five public defenders, and that the Commission’s Executive Director hopes they will be hired and begin their rural-focused work by the end of 2022).

[10] About the Office of the Defender General, Off. of the Def. Gen., https://defgen.vermont.gov/about-us (last visited Nov. 8, 2023).

[11] Id. Contract offices are private firms that contract with the Office to provide primary public defense services. Id.

[12] Id.; Ad hoc, Black’s Law Dictionary (11th ed. 2019) (defining “ad hoc” as “[f]ormed for a particular purpose”).

[13] Id.

[14] Id.

[15] Sixth Amend. Ctr. Report, supra note 8, at 26.

[16] Id. (explaining that private systems rely on estimating what caseloads may look like in the future based on current trends and calculating what level of funding those caseloads may require, but because there is no guarantee that current averages will continue, costs can fluctuate wildly).

[17] Id. (describing the lack of supervision or training required in Maine’s current system).

[18] Patty Wight, Maine’s Lead Public Defender Resigns After One Month, Me. Pub. (Jan. 25, 2023), https://www.mainepublic.org/courts-and-crime/2023-01-25/maines-lead-public-defender-resigns-after-one-month.

[19] Id.

[20] Samantha Hogan, Executive Director of Maine’s Public Defense Agency Will Resign, Me. Monitor (Feb. 21, 2023), https://www.themainemonitor.org/executive-director-of-maines-public-defense-agency-will-resign/.

[21] Phil Hirschkorn, Maine Lawyers Who Represent Indigent Defendants to Receive a Pay Raise, WMTW (Feb. 22, 2023), https://www.wmtw.com/article/maine-lawyers-who-represent-indigent-defendants-to-receive-a-pay-raise/43028531#. Note that this funding runs out at the end of this fiscal year, on June 30, 2023, unless Maine lawmakers choose to make the funding permanent. See Samantha Hogan, Advisors to U.S. Commission on Civil Rights Urge Maine Lawmakers to Pay For Indigent Defense, Me. Monitor (Mar. 10, 2023), https://www.pressherald.com/2023/03/10/advisors-to-u-s-commission-on-civil-rights-urge-maine-lawmakers-to-pay-for-indigent-defense/.

[22] Hirschkorn, supra note 21.

[23] See Christopher Williams, Maine Attorneys Coming Back to Court-Appointed Rosters, Sun J. (Mar. 2, 2023) https://www.sunjournal.com/2023/03/01/maine-attorneys-coming-back-to-court-appointed-rosters/ (noting that attorneys began showing interest in returning to the roster once it looked like the Maine Legislature would be increasing the hourly wage for court-appointed attorneys).

[24] Id. 40%  sounds like a lot of attorneys, but recall that in January 2023, there were just 64 attorneys accepting adult criminal cases. Hogan, supra note 7. Doing some mental math, an estimated 90 attorneys now occupy the roster. Four years ago, there were 410 attorneys. Miller, supra note 1.

[25] See Hogan, supra note 21.

[26] Id. For more information about the Advisory Committee’s ongoing work, see Maine, U.S. Comm’n on C.R., https://www.usccr.gov/states/maine (last visited Nov. 8, 2023).

[27] A pause to emphasize what that budget proposal included: An hourly wage of $150 for court-appointed lawyers, and four new public defender offices, two providing trial-level services, one exclusively for appeals, and one dedicated to post-conviction relief. Samantha Hogan, Maine Reaches ‘Point of Failure,’ Seeks $62.1 Million for Indigent Public Defense, News Ctr. Me. (Aug. 23, 2022), https://www.newscentermaine.com/article/news/crime/maine-reaches-point-of-failure-seeks-621m-for-indigent-public-defense-crime-justice/97-60909103-808e-4baf-876b-b4dbd8429d78. Sound familiar? See About the Office of the Defender General, Off. of the Def. Gen., https://defgen.vermont.gov/about-us (last visited Apr. 14, 2023) (“There are . . . two offices that handle matters post adjudication. The Appellate Defender handles appeals to the Supreme Court. The Prisoners’ Rights Office represents persons in the custody of the Commissioner of Corrections.”).

[28] Hogan, supra note 21.

[29] Eric Floyd, Opinion, It’s Time for Maine to Make Its Legal System Just and Equitable, Bangor Daily News (Mar. 7, 2023), https://www.bangordailynews.com/2023/03/07/opinion/opinion-contributor/maine-poor-legal-system/. Eric Floyd is currently incarcerated at Bolduc Correctional Facility in Warren, Maine. He has studied at the University of Maine at Augusta. Id.

Sneak Peek of “68 Crucial Seconds: Rethinking Sexual Assault Language to Increase Effectiveness”

 

By Hannah Koniar | Head Notes Editor

November 22, 2023 

When someone hears the name “Brock Turner” their head will turn. This is because Brock Turner was a Stanford swimmer before he was “sentenced to six months in county jail after being convicted of sexually assaulting an unconscious, intoxicated woman in January 2015.”[1] If you know about Brock Turner, you most likely know the infamous statement from his father, begging the Court to treat his son gently saying, “[h]is life will never be the one that he dreamed about and worked so hard to achieve.”[2] He continued with his letter, referring to any amount of jail time saying, “[t]hat is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”[3] Implications spread after this sentencing, inclusive of a nationwide petition to remove the sentencing judge, Judge Persky; the questioning of systemic racism; and discussion of “the widespread existence of sexual violence on college campuses across the country.”[4] The sentencing results of Brock Turner sparked conversation.

Sexual assault is a prevalent issue with an incredibly low conviction rate and Congress should implement legislation encouraging states to include specific language to enhance sexual assault statutes that lead to a more successful conviction rate and overall better efficacy. Collected data shows, “[e]very 68 seconds, an American is sexually assaulted.”[5] These statistics do not specify gender, sexual orientation, race, religious beliefs, etc. This statistic proves sexual assault does not discriminate. Sexual violence is not a singular person’s issue, it is a pandemic that can, and does, happen anywhere, anytime, to anyone. Statistics show acts of sexual violence have occurred when the survivor was doing various activities.[6] Activities included survivors who were sleeping, engaging in home activities, travelling to various local locations such as school and work, running errands, working, or simply being at school.[7] With these statistics, the legal system ought to be questioned as to how, “only 25 out of every 1,000 perpetrators [of sexual assault] end up in prison.”[8]

There is a way to address this question by evaluating the language of the sexual assault statutes of the top three states in America with the highest rate of sexual assault per 100,000 people, Alaska, Arkansas, and Michigan.[9] After evaluating the language in these statutes, it is possible to propose language which Congress can encourage states to implement in their sexual assault statutes as a means to increase incarceration and holding people responsible for their actions. Congress will encourage states to implement this new language by allocating funds to state sexual assault forensic exam labs. If the state implements the proposed language, their state forensic lab will receive additional funding. This is allowed under the holding of South Dakota v. Dole, where the Court ruled, “Congress has offered relatively mild encouragement to the States to enact high minimum drinking ages than they would otherwise choose. But the enactment of such law remains the prerogative of the States not merely in theory but in fact.”[10]

Here, similar to South Dakota v. Dole, there would simply be encouragement for the states to implement the newly proposed language. The model for the proposed language is the “only-yes-means-yes” model.[11] This model is one based on affirmative consent.[12] Essentially, sex will only be consensual if both parties freely and expressly give consent to the act.[13] Without a yes, there is no consent because the survivor should bear no burden to say “no” to have a viable case. Survivors lose so much of themselves when they are assaulted. The legal system should not further hurt them, rather find a way to help them. Chanel Miller, survivor to Brock Turner, wrote in her victim statement, “[I had to relearn] [t]hat I am not just a drunk victim at a frat party found behind a dumpster, while you are the All American swimmer at a top university, innocent until proven guilty, with so much at stake.”[14] Sexual assault in this world is a pandemic, one capable of being effectively addressed from the top down. Congress can start at the top by implementing the proposed legislation encouraging states to include specific language as a means to enhance their sexual assault statutes and receive additional funding for their forensic labs.

 

[1] Kayla Lombardo, How a Rape Case Involving a Stanford Swimmer Became National News, Sports Illustrated (June 9, 2016), https://www.si.com/more-sports/2016/06/09/brock-turner-stanford-swimming-sexual-assault-rape-case.

[2] Id.

[3] Id.

[4] Id. (“If a first time offender from an unprivileged background was accused of three felonies and displayed no accountability for his actions other than drinking, what would his sentence be? The fact that Brock was an athlete at a private university should not be seen as an entitlement to leniency, but as an opportunity to send a message that sexual assault is against the law regardless of social class.”) (internal quotation marks omitted).

[5] Statistics, Rape, Abuse, & Incest Nat’l Network, https://rainn.org/statistics (last visited Nov. 5, 2023).

[6] Id.

[7] Id.

[8] Id.

[9] Rape Statistics by State 2022, World Population Rev., https://worldpopulationreview.com/state-rankings/rape-statistics-by-state (last visited Nov. 5, 2023).

[10] South Dakota v. Dole, 483 U.S. 203, 211–12, 1987.

[11] Tatjana Hörnle, The New German Law on Sexual Assault and Sexual Harassment, 18 German L.J. 1309, 1319–20 (2017).

[12] Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative

Consent Standard in Rape Law, 58 Vanderbilt L. Rev. 1321, 1345 (2019).

[13] Id.

[14] Emily Doe (Chanel Miller), Victim Impact Statement, The American Yawp Reader (2015) https://www.americanyawp.com/reader/30-the-recent-past/emily-doe-victim-impact-statement-2015/.

Ciudadanos Sin Derechos: The Plight of Puerto Rican Prisoners

Puerto Rico Rican flag on flagpole textile cloth fabric waving on the top sunrise mist fog

 

 

 

 

 

 

 

 

 

 

 

 

By Maylee Carbajal | Symposium Editor

November 21, 2023

Thirst, hunger, and no help. This was and continues to be the reality for Puerto Rican prisoners. Milton Pinilla Quintero endured the harsh reality as a Puerto Rican inmate. Milton was an inmate at Metropolitan Detention Center (MDC) in Guaynabo, Puerto Rico when Hurricane Maria struck.[1] Hurricane Maria left Puerto Rico in shambles, the inmates in MDC especially felt the effect of the natural disaster.[2] The abuse and lack of governmental involvement can be directly linked to Puerto Rico’s territory status.

When Hurricane Maria struck Puerto Rico, the already appalling conditions within the prison became deplorable.[3] Puerto Rico was pleading for “mainland” assistance while inmates like Milton were fighting to stay alive.[4] Milton lived with feces due to improper plumbing, which the officers were aware of.[5] Milton’s numerous requests for plumbing solutions were ignored.[6] Because Milton’s pleas for basic human living conditions were ignored, he had feces and urine throughout the floor of his cell when the toilet overflowed.[7] His requests for water and cleaning supplies were dismissed.[8]

Because Milton’s persistent requests for basic human necessities were disregarded, legal action was taken. In 2018, Milton, alongside his attorneys, filed and submitted an informative motion addressing the unceasing human rights violations.[9] Milton’s is only one story, there are hundreds of thousands of inmates in Puerto Rico with similar stories.

Puerto Ricans have their unfortunate destiny handed by the United States and Puerto Rican prisoners endure the effect of ongoing colonization. Puerto Rico was independent for hundreds of years prior to the Spaniards colonizing and claiming authority over the land.[10] Following the Spanish conquest came bloodshed and tears from the Spanish-American War that awarded the United States dominance over Puerto Rico through a treaty agreement.[11] Puerto Rico was and remains a territory of the United States.[12]

Puerto Rico is considered an “unincorporated territory of the United States.”[13] An unincorporated territory, as defined by United States government, is “[a] United States insular area in which the United States Congress has determined only selected parts of the United States Constitution apply.”[14] Most recently, the Supreme Court of the United States further supported Congress’ ability to limit the applicable aspects of the Constitution for territories by excluding Puerto Ricans from the Supplemental Security Income (SSI), a federal relief program.[15] A territory does not have “the rights, responsibilities, or powers of a state or nation.”[16] Thus, Puerto Rico, a territory, does not have its own sovereignty. Rather, it is a mere possession.[17]

Under the United States’ partial leadership, Puerto Ricans gained U.S. citizenship. In return for the “lavish favor” of granting them citizenship, Puerto Rican men became eligible to conscript into World War I.[18] About 18,000 new citizens of the United States were drafted.[19] The history of the relationship between Puerto Rico and the United States illustrates how the United States profits at the direct expense of Puerto Rico and Puerto Ricans. Consequently, there is a major imbalance of benefits between territories and the “mainland” that persists to this day. The negative consequences and externalities are borne exclusively by one side: Puerto Rico. Such negative effects exist in a multitude of ways: (1) Puerto Ricans—who are United States citizens––cannot cast a vote for the presidency; (2) indigenous and Puerto Rican land is being taken over for manufacturing and tourism, forcing citizens to flee to the “mainland” for agricultural employment opportunities; (3) the island received little federal assistance when Hurricane Maria, which was followed by Hurricane Fiona, devastated the island; and (4) Puerto Rican American citizens being deprived of their basic human necessities.[20]

The United States adopted the Constitution in 1787.[21] Article IV of the U.S. Constitution applies to commonwealths and territories.[22] Puerto Rico is categorized as a “commonwealth”[23] or “territory,” and thus, Art. IV of the United States Constitution applies.[24] Due to Puerto Rico’s territory status, the United States government’s permission was required to establish its own Constitution. [25] United States granted permission and thus, the Puerto Rican Constitution was established in 1952.[26] Although Puerto Rico has its own Constitution, sovereignty and self-governance does not exist within the territory.

Puerto Rico has been a part of the United States for decades but has not reaped the same benefits the 50 states do. The island’s status as a territory is the root cause of the island’s state of turmoil. With each natural disaster the Puerto Rican people suffer, and with their calls for aid being routinely ignored, the island is further abandoned and reduced to an outlier. Puerto Rico’s status as a territory has a direct correlation to the abuse and neglectful conditions inmates incarcerated on the island face. This is especially perceptible when Puerto Rican prison conditions are compared to the inmates housed in the 50 states. Ultimately, the United States must decide whether to grant the island sovereignty or statehood. Importantly, the United States must decide imminently because otherwise, inhumane conditions will continue to sweep and plague Puerto Rican prisons.

[1] See Informative Motion on Violations of Human Rights at MDC-Guaynabo During the Aftermath of Hurricane Maria and Subsequent Transfer of Inmates to the Federal Correctional Institution at Yazoo City, Mississippi, Exhibit 1 at 1, United States v. Pinilla Quintero, 2 (D.P.R. 2018) No. 16-463 [hereinafter Pinilla Aff.].

[2] See generally id.

[3] See generally id.

[4] See generally id; Mainland, Merriam-Webster, https://www.merriam-webster.com/dictionary/mainland (last visited Nov. 20, 2023). The term “mainland” is used here to further emphasize the disparate treatment and lack of acknowledgement for Puerto Rico because it is a territory not connected to the 50 states through physical means.

[5] Pinilla Aff., supra note 1, at ¶ 2.

[6] Id.

[7] See id. at 4.

[8] Id.

[9] Informative Motion on Violations of Human Rights at MDC-Guaynabo During the Aftermath of Hurricane Maria and Subsequent Transfer of Inmates to the Federal Correctional Institution at Yazoo City, Mississippi, United States v. Pinilla Quintero, 2 (D.P.R. 2018) No. 16-463 [hereinafter Informative Mot.].

[10] History.com Editors, Puerto Rico, History, https://www.history.com/topics/us-states/puerto-rico-history (Aug. 1, 2023).

[11] Treaty of Peace between the United States of America and the Kingdom of Spain art. 2, Dec. 10, 1898, 30 Stat. 1754, T.S. No. 343.

[12] See generally id.

[13] Ani Kington, U.S. Territories and Commonwealths, InterExchange, (Aug. 13, 2012) https://www.interexchange.org/articles/career-training-usa/2012/08/13/u-s-territories-and-commonwealths/.

[14] Office of Insular Affairs, Definitions of Insular Area Political Org., U.S. Department of the Interior, https://www.doi.gov/oia/islands/politicatypes#:~:text=unincorporated%20territory,the%20United%20States%20Constitution%20apply (Last visited Nov. 20, 2023).

[15] United States v. Vaello Madero, 596 U.S. 159, 161 (2022).

[16] What Does It Mean to Be a Territory of the United States?, Puerto Rico Rep. (Apr. 17, 2018), https://www.puertoricoreport.com/educators-mean-territory-united-states/#.Y3977ezMLvW.

[17] Id. For Puerto Rico, this means having limited benefits and rights while providing the most profit for the United States.

[18] History.com Editors, supra note 10.

[19] Id.

[20] See generally Fundamental Right, Cornell L. Sch., https://www.law.cornell.edu/wex/fundamental_right (last visited Nov. 20, 2023) see also Nick Brown, How Dependence on Corporate Tax Creaks Corroded Puerto Rico’s Economy, Reuters Investigates, (Dec. 2016), https://www.reuters.com/investigates/special-report/usa-puertorico-economy/; see Damaris Suárez, Inmates Claim Conditions in Prisons are Deplorable After Hurricane Fiona, no Water and Energy, Centro de Periodismo Investigativo (Sept. 24, 2022), https://periodismoinvestigativo.com/2022/09/after-hurricane-fiona-inmates-claim-conditions-in-prisons-are-deplorable-with-no-water-and-energy/ (describing the lack of action taken by the United States when Hurricane Fiona struck Puerto Rico); see also supra notes 1­3, 5­8. Thus, fundamental rights, like voting for president, do not apply to Puerto Ricans.

[21] U.S. Const. art. VII.

[22] U.S. Const. art. IV, § 3, cl. 2.

[23] Territories exist in two forms: a general territory and a commonwealth territory; Puerto Rico is a commonwealth territory. Territories and commonwealth are two similar but distinct terms. See generally Ani Kington, supra note 13; Commonwealths have a “slightly more developed relationship to the U.S. than a ‘territory’ does.” Id. Both the terms “commonwealth” and “territory” are used interchangeably to describe Puerto Rico’s status. Territories of both forms––despite being part of the United States––are not represented in Congress in the same manner states are and “do not have the same rights as states.” Id. The federal government has mounted “significant opposition” against granting territories or commonwealths statehood. Id.

[24] BRIA 17 4 c Puerto Rico: Commonwealth, Statehood, or Independence?, Const. Rts. Found.,

https://www.crf-usa.org/bill-of-rights-in-action/bria-17-4-c-puerto-rico-commonwealth-statehood-or-independence (last visited Nov. 20, 2023).

[25] History.com Editors, supra note 10.

[26] P.R. Const. art. IX, § 10; see H.R.J. Res. 430, 81st Cong. (1952) (enacted).

Raising the Bar: The Case to Modernize Vermont Bar Admission

“Exam” by albertogp123 is licensed under CC BY 2.0. https://www.flickr.com/photos/57280691@N02/5843577306

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By: Phoebe Howe | Senior Notes Editor

November 20, 2023

For third-year law students, the bar exam culminates years of law school and ten weeks of intensive study. Yet the mechanical exam is incompatible with a profession where lawyers rely on strong interpersonal and communication skills. And no evidence proves that the exam ensures minimum competence or protects the public. Instead, test takers face a redundant, dehumanizing exercise that is rooted in elitism and turns on one’s wealth. In response to the bar exam’s deficiencies, Vermont should reform its Rules of Admission to adopt one or more “diploma-plus” pathways to bar admission.

Bar admission practices arose from elitist origins. Starting in the early 20th century, the American Bar Association engaged in a systematic effort to maintain an elite cadre of lawyers through tools such as the bar exam and law school accreditation standards.[1] This desire for “professionalism” was indisputably mixed up with racist motivations.[2] Leaders within the legal community held nativist views, were made aware of the discriminatory impacts of their actions, and continued to alienate poor, immigrant, and non-white law students anyways.

While blatant discrimination is less rampant than 50[3] or 100[4] years ago, the bar exam perpetuates systemic racism today. In 2021, 85% of white law school graduates passed the bar exam on their first try, whereas only 61% of Black graduates did.[5] Two broad theories offer insight into how systemic racism creates the bar passage gap between white and minority test takers. The first theory is that as long as the racial wealth gap persists, the bar exam will continue to privilege white test takers over test takers of color. The second theory is that implicit bias in law school and the pressure of the bar exam may evoke “stereotype threat” that hinders students of color from performing at their full potential.[6]

The bar exam perpetuates systemic classism. The ten-week period between law school graduation and the July bar exam is expensive, and graduates who attempt to work and study simultaneously do markedly worse on the exam.[7] In addition to living-related costs, graduates must budget for prep courses (starting at $2,000)[8] and bar application costs (which can be $1,000 or more).[9] Moreover, states generally hold bar exams in population centers,[10] meaning rural test takers must also pay for travel, lodging, meals, and childcare. Given the staggering costs associated with the bar exam, it is no surprise that graduates with more financial resources do better on the test.[11] Bar passage has become a proxy for wealth.

In addition to perpetuating systemic racism and classism, the bar admission process exacerbates access to justice issues. The legal community designed bar admission requirements, including the bar exam, to keep the bar small and maintain high prices.[12] Although bar admission operates with the goal of consumer protection,[13] excessive requirements may harm consumers by limiting competition[14] and increasing the cost of services.[15] Vermont is not immune from this problem. The state strives to provide free or low-cost advice and representation on critical matters,[16] but thousands of Vermonters go unrepresented in serious civil proceedings.[17] And due to lawyer shortages in rural areas,[18] some Vermont criminal defendants receive low-quality or delayed representation.[19]

Furthermore, the bar exam does not ensure attorney competency. The National Conference of Bar Examiners’ organizational vision includes fostering a “competent” legal profession.[20] Yet, the multiple-choice and essay portions of the exam test memorization skills more than legal knowledge and analysis. Memorization is not part of competent legal practice.[21] Competent lawyers double-check their assumptions, do additional research, and talk to colleagues. Legal practice revolves around handling ambiguity and making judgment calls. Multiple-choice questions and formulaic essays cannot reflect this reality.

A final reason for Vermont bar admission reform is that Vermont and its legal workforce face troubling demographic challenges. First, Vermont’s lawyers are aging. Vermont has the third-highest median age in the country,[22] and half of Vermont’s lawyers are over 55.[23] Many retiring lawyers cannot find young graduates to take over their businesses.[24] Second, Vermont is one of the least racially diverse states in the country.[25] Assuming that lawyers of color are as underrepresented in Vermont as they are nationally,[26] there may be as few as 11 Black lawyers, 15 Hispanic or Latinx lawyers, and three Native American lawyers out of Vermont’s 2,198 total lawyers.[27]

Other states have forged the path toward bar admission reform. Wisconsin allows bar admission by diploma privilege: if a student successfully graduates from one of the state’s law schools, there is no bar exam requirement.[28] New Hampshire’s Daniel Webster Scholar Honors Program adds experiential learning to a standard law school curriculum and eliminates the traditional bar exam.[29] Oregon is about to implement experiential and supervised practice programs.[30]

Vermont should build on other states’ work and adopt one or more “diploma-plus” bar admission pathways:

  • A diploma-plus-GPA pathway would build on the strength and simplicity of Wisconsin’s diploma privilege. The Board of Bar Examiners should work with Vermont Law and Graduate School to set a GPA requirement that guarantees minimum competence. Instead of pure diploma privilege, the GPA requirement is necessary because Vermont Law and Graduate School administrators are not confident that the school’s 2.3 GPA requirement for graduation adequately screens for minimum competence.[31] The GPA calculation should include only required courses, most of which are curved, to avoid concerns about grade inflation.[32]
  • An experiential program based on New Hampshire’s Daniel Webster Scholar Honors Program[33] would allow students to complete bar admission requirements via practical classes. The program would amount to a rigorous “two-year bar exam” with frequent assessments[34] and a final presentation to the Board of Bar Examiners.[35] Vermont stakeholders have expressed interest in an experiential program because lawyers find it difficult to train new hires and want practice-ready graduates.[36] Vermont Law and Graduate School faculty and administration[37] and Vermont’s Joint Commission on the Future of Legal Services[38] agree that Vermont should consider experiential learning as an alternative licensure path.
  • A supervised-practice pathway would allow bar applicants to establish competence by completing a certain period of paid, supervised work. Other professions, such as the medical field, rely heavily on the apprenticeship model, as did the legal profession before the standardization of law schools.[39] Applicants would complete a certain number of hours and compile a portfolio of work product to present to the Board of Bar Examiners.[40]

As rising awareness of the bar exam’s elitist origin and gatekeeping effect spurs the national bar admission reform movement, many states seek to implement permanent reform measures. By reforming bar admission with diploma-plus pathways, Vermont can simultaneously eliminate discriminatory bar admission practices and serve the public with a competent attorney workforce that more accurately reflects the diversity of our communities.

 

 

[1] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s 96–97 (1983).

[2] Id. at 92; Although the European immigrants of the early 1900s would be considered white today, at the time “whiteness” was narrowly construed to include only people of Anglo-Saxon heritage and Protestant religious beliefs. Thus, racism is an appropriate term to describe anti-immigrant efforts. Xenophobia: Closing the Door, The Pluralism Project, Harv. Univ., https://pluralism.org/xenophobia-closing-the-door (last visited Mar. 13, 2023).

[3] For example, South Carolina abolished reciprocity in 1972 right after a Black lawyer from Oklahoma applied for reciprocal admission. Richardson v. McFadden, 540 F.2d 744, 746–47 (4th Cir. 1976).

[4] Adjoa Artis Aiyetoro, Truth Matters: A Call for the American Bar Association to Acknowledge Its Past and Make Reparations to African Descendants, 18 Geo. Mason U. Civ. Rts. L.J. 51, 72 (2007).

[5] ABA, Summary Bar Pass Data: Race, Ethnicity, and Gender (2022), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/2022/2022-bpq-national-summary-data-race-ethnicity-gender-fin.pdf.

[6] Deborah Jones Merritt, Carol L. Chomsky, Claudia Angelos, & Joan W. Howarth, Racial Disparities in Bar Exam Results—Causes and Remedies, Bloomberg L. (July 20, 2021), https://news.bloomberglaw.com/us-law-week/racial-disparities-in-bar-exam-results-causes-and-remedies. Results from a 2021 AccessLex study of over 5,000 bar exam takers supports this conclusion. Email from Deborah Jones Merritt, Professor, Ohio State University Moritz College of Law, to author (Jan. 2, 2023, 08:10 EST) (on file with author) (interpreting statistical analysis in AccessLex Inst., Analyzing First-Time Bar Exam Passage on The UBE in New York State 81 (2021), https://www.accesslex.org/NYBOLE).

[7] Logan Cornett & Zachariah DeMeola, The Bar Exam Does More Harm Than Good, Inst. for the Advancement of the Am. Legal Sys. (Aug. 2, 2021), https://iaals.du.edu/blog/bar-exam-does-more-harm-good; AccessLex Inst., supra note 6, at 15.

[8] E.g., Vermont Bar Review Course, Kaplan, https://www.kaptest.com/bar-exam/courses/vermont-bar-review (last visited Nov. 5, 2023).

[9] Nat’l Conf. of Bar Exam’rs & ABA Section of Legal Educ. & Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 34–35 (2021).

[10] For example, Vermont often holds its exam in Burlington. Admission to the Vermont Bar, Vermont Judiciary, https://www.vermontjudiciary.org/attorneys/admission-vermont-bar (last visited Nov. 5, 2023).

[11] AccessLex Inst., supra note 6, at 38.

[12] See George B. Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools, 53 J. Legal Educ. 103, 147 (2003) (discussing effect of law school accreditation on access to and affordability of legal services).

[13] Interview with Beth McCormack, Dean, Vt. L. Sch., in South Royalton, Vt. (Sept. 19, 2022).

[14] Deborah Jones Merritt & Logan Cornett, Building a Better Bar 5 (2022).

[15] Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 Ariz. St. L.J. 429, 441 (2001).

[16] Vt. Access to Just. Coal., Renewing Vermont’s Commitment to Access to Justice 1 (2020), https://legislature.vermont.gov/ (search for “Renewing Vermont’s Commitment to Access to Justice” report).

[17] In one year, the need included about 1,500 tenants facing eviction, 4,000 customers facing credit-card collections, and 1,300 spouses seeking a divorce. Id. at 2.

[18] Justin Trombly, Northeast Kingdom Defenders Worry Hiring Problems Harm Clients’ Rights, VTDigger (Sept. 8, 2019), https://vtdigger.org/2019/09/08/northeast-kingdom-defenders-worry-hiring-problems-harm-clients-rights/.

[19] See, e.g., id. (describing how client’s plans to expand nonprofit organization were delayed when lawyer allegedly failed to address misdemeanor charge); Justin Trombly, NEK Judge Throws Out Drug Conviction, Rules Public Defenders Failed, VTDigger (July 26, 2021), https://vtdigger.org/2021/07/26/nek-judge-throws-out-drug-conviction-rules-public-defenders-failed/ (describing how court vacated client’s drug conviction for ineffective assistance of counsel).

[20] About NCBE, NCBE, https://www.ncbex.org/about/ (last visited Nov. 5, 2023).

[21] Merritt & Cornett, supra note 14, at 72.

[22] Median Age in 2021, StatsAmerica, https://www.statsamerica.org/sip/rank_list.aspx?rank_label=pop46&ct=S09 (last visited Nov. 5, 2023).

[23] Vt. Bar Ass’n, 2020 VBA Members by Age (2020) (on file with author).

[24] Vt. Joint Comm’n on the Future of Legal Servs., Final Reports & Recommendations of the First Year Study Committees 45 (2015) (on file with author); see, e.g., M.D. Drysdale, Where Have All the Lawyers Gone?, Herald of Randolph (Aug. 13, 2015), https://www.ourherald.com/articles/where-have-all-the-lawyers-gone/.

[25] Wilson Ring, Census: Minority Population Growing in VT, 2nd Whitest State, AP (Aug. 12, 2021), https://apnews.com/article/race-and-ethnicity-census-2020-vermont-721d8201122a857b4565b4a37bd77d24.

[26] Nationally, Black (4.5% of lawyers and 13.4% of population), Hispanic or Latinx (5.8% of lawyers and 18.5% of population), and Native American lawyers (0.5% of lawyers and 1.3% of population) remain underrepresented. The share of Asian American lawyers is about the same as the general population (5.5% of lawyers and 5.9% of population), and white lawyers are dramatically overrepresented (81% of lawyers but only 60% of population. ABA Survey Finds 1.3M Lawyers in the U.S., ABA (Jun. 20, 2022), https://www.americanbar.org/news/abanews/aba-news-archives/2022/06/aba-lawyers-survey/.

[27] Calculations on file with author.

[28] Wis. Sup. Ct. R. Ch. 40.

[29] N.H. Sup. Ct. R. 42.

[30] Licensure Pathway Development Committee, Or. State Bar, https://lpdc.osbar.org (last visited Nov. 5, 2023).

[31] Interview with Beth McCormack, supra note 13; Vt. L. & Graduate Sch., Student Handbook 38 (2022).

[32] Vt. L. & Graduate Sch, supra note 31, at 35.

[33] Daniel Webster Scholar Honors Program, Univ. of N.H. Franklin Pierce Sch. of L., https://law.unh.edu/academics/daniel-webster-scholar-honors-program (last visited Nov. 5, 2023).

[34] John Burwell Garvey & Anne F. Zinkin, Making Law Students Client-Ready: A New Model in Legal Education, 1 Duke Forum for L. & Soc. Change 101, 122 (2009).

[35] Alli Gerkman & Elena Harman, Ahead of the Curve—Turning Law Students into Lawyers 10 (2015), https://iaals.du.edu/sites/default/files/documents/publications/ahead_of_the_curve_turning_law_students_into_lawyers.pdf.

[36] Vt. Joint Comm’n on the Future of Legal Servs., supra note 24, at 32.

[37] Interview with Jessica Durkis-Stokes, Professor, Vt. L. Sch., in South Royalton, Vt. (Sept. 1, 2022); Interview with Beth McCormack, supra note 13.

[38] Vt. Joint Comm’n on the Future of Legal Servs., supra note 24, at 32.

[39] Stevens, supra note 1, at 3, 24.

[40] Oregon plans to require a portfolio of non-privileged work product. Memorandum from the Alternatives to the Bar Exam Task Force to the Oregon State Board of Bar Examiners 23 (June 18, 2021), https://taskforces.osbar.org/files/Bar-Exam-Alternatives-TFReport.pdf.

The Civil Implications of Animal Welfare Statutes

 

 

 

 

 

By: Grayson Harbury | Senior Articles Editor

November 17, 2023

In the fall of 2022 the Oregon Court of Appeals affirmed the dismissal of a per se negligence claim based on a violation of a state animal welfare statute.[1] Notably, the named plaintiff for the civil claim was the horse who had been neglected, Justice.[2] The lower court dismissed the claim, holding that animals do not have standing to sue because they are not legal entities.[3] The appellate court affirmed, holding that there was no procedural method that would allow for third-party standing on behalf of an animal, and also that animals are not legal persons and therefore lack standing to sue.[4] The court interpreted Oregon’s criminal animal neglect statute as qualifying the rights of animal owners, rather than creating substantive rights in animals.[5] In contrast, the plaintiff asserted that the animal welfare statute created a right in the animal to receive a minimum standard of care, civilly remediable through a per se negligence action. The court instead viewed animal welfare statutes as a manifestation of animal owners’ duty to the state.[6] Ultimately, the court regarded the question of legal personhood for animals as a public policy choice best left to legislative determination.[7] However, the precedent cited by the court in holding against a theory of animal guardianship is not as straightforward as the opinion suggests.

To begin, the court held that legal guardianship is not available for animals because animals’ interests are not discernable.[8] However, by enacting animal welfare statutes, legislatures implicitly recognize humans’ ability to recognize animal preferences. Indeed, the Oregon Court of Appeals acknowledged that “animals are sentient beings . . . and should be cared for in ways that minimize pain, stress, fear, and suffering.”[9] Mindful of that, the court then explained that guardianship ad litem or analogous procedural devices would be inappropriate for animals because those seeking to represent animals might have ulterior motives.[10] The court relied heavily upon a case in which PETA pursued a copyright claim on behalf of a monkey to underscore the potential for abuse of animal guardianship procedures.[11] In that case, however, the Ninth Circuit held that PETA had not made a factual showing of a significant relationship with the monkey sufficient for “next friend” third-party standing.[12] Thus, even in the context of a monkey’s copyright claims, the plaintiff’s case did not fail for lack of ability to discern the animal’s interests, or even for a lack of ability to discern who would most faithfully pursue those interests: the claim failed because PETA did not allege adequate facts.[13]

In fact, the court in Naruto determined that the monkey had established Article III standing sufficient to survive a 12(b)(6) motion to dismiss.[14] In addition to the factual inadequacy, PETA could not establish third-party standing as a “next friend” because “next friend” standing is statutorily created and thus Congress would have clearly indicated an intent to create a cause of action for animals to invoke copyright protection.[15] Nevertheless, the Ninth Circuit then explained the court’s duty under Federal Rule of Civil Procedure 17 to ensure adequate representation of incompetent parties, including the appointment of guardians ad litem if necessary.[16] Thus, if Justice adequately pled a case of negligence per se, Naruto would actually stand for the proposition that the Oregon Court of Appeals was under a duty to ensure his adequate representation under analogous state procedural rules.[17] Furthermore, in the context of animal neglect or abuse, the fact-finding process to determine the person best suited to pursue the animal’s interests would have a presumptive candidate: the new owner.

Recognizing third-party standing for animals would undoubtedly be a contentious step in the development of the common law.[18] Nonetheless, the Naruto opinion, which declined to extend next-friend standing to animals on statutory interpretation grounds,[19] implies the possibility of case-specific, fact-reliant common-law third-party standing for animal plaintiffs rather than a blanket skepticism of people’s ability to pursue animals’ interests in good faith. A negligence per se claim for animal neglect presents a case in which that fact-finding would be simplest, from the standpoint of discerning both the animal’s interest, and the legal person best suited to advance that interest. A common-law expansion of animal standing would also make the most sense in the tort-law context, given the judge-driven development of the field.[20]

On a different note, the Oregon Court of Appeals’ focus on conditional animal ownership suggests the possibility of framing animals’ civil claims similarly to honorary trusts, a common-law creation that allowed pet owners to bequeath part of their estates to beneficiary pets, despite the pets’ inability to enforce the trust.[21] If the state grants animal ownership in trust, with the duty of the owner to provide a minimum level of care, third-party representation of the animal by a successor trustee (owner) could actually be a fiduciary duty.[22]

[1] Mosiman ex rel. Just. v. Vercher, 321 Or. App. 439 (2022), review denied, 524 P.3d 964 (2023).

[2] Id.

[3] Id.

[4] Id. at 444–46.

[5] Id. at 454.

[6] Id. at 453–54.

[7] Id. at 456.

[8] Id. at 446.

[9] Id. at 454 (citing Or. Rev. Stat. Ann. § 167.305 (West)).

[10] Id. at 447–48.

[11] Id. at 446–48 (citing Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018)).

[12] Id. at 446 (quoting Naruto, 888 F.3d at 421).

[13] Id. (quoting Naruto, 888 F.3d at 421).

[14] Naruto, 888 F.3d at 425.

[15] Id. at 425–26 (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004)); see Fed. R. Civ. P. 17.

[16] Naruto, 888 F.3d at 422–23.

[17] See Or. R. Civ. P. 27(a).

[18] See Vercher, 321 Or. App. at 457–58.

[19] Naruto, 888 F.3d at 425–26 (citing Cetacean Cmty., 386 F.3d at 1179).

[20] See generally Caroline Forell, Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What’s the Difference?, 77 Or. L. Rev. 497 (1998) (discussing Oregon tort-law development as influenced by statutes and how “a court should consider providing a statutory duty action, such as negligence per se, to further the purposes of the statute” when the statute is “focused” on specific types of harms and victims).

[21] See generally Emily Gardner, An Ode to Roxy Russell: A Look at Hawaii’s New Pet Trust Law, Haw. B.J., Apr. 2007, at 30 (discussing the evolution of honorary trusts in the context of Hawaiian legislation covering the subject).

[22] Eric A. Manterfield, Shelter from the Gathering Storm: Protection for Trustees (and Estate Planners!) Facing Fiduciary Challenges (2015) (“Many states provide that a successor trustee becomes liable for a breach of trust by a predecessor trustee if the successor trustee fails to make a reasonable effort to compel a redress of a breach of trust committed by the predecessor trustee.”).

Improving the Negligence Standard for Corporate Farm Employers May Give Migrant Farmworkers Relief from Sexual Harassment

 

 

 

 

 

 

 

 

 

 

By Veronica Gassert | Head Notes Editor

November 16, 2023

Migrant farmworkers populate remote areas when they work for corporate farms in the United States.[1] The isolated nature of farmwork is conducive to the occurrence of sexual harassment.[2] So is the physical nature of farmwork because it involves putting one’s body in vulnerable positions that perpetrators of sexual harassment may take advantage of.[3] These elements, combined with the unique challenges that immigrants face, blend to create a precarious situation for farmworkers.[4] Just one woman’s story can illustrate the pains of many who experience sexual harassment when working for a corporate farm in America.[5]

Olivia Tamayo was a farmworker for Harris Farms in the 1990s and early 2000s.[6] Her supervisor raped her multiple times, threatening her into silence at gunpoint.[7] Ms. Tamayo’s bravery brought her to court, where she was awarded nearly $1 million in damages at the outset.[8] While on the surface, this seems like a win for the migrant-farmworker community, the benefits of compensation cannot outweigh the moments of her life lost to fear, instability, and suffering. To varying degrees, the majority of women migrant farmworkers can relate to Ms. Tamayo’s narrative—nearly 80 percent of female migrant farmworkers experience sexual harassment on the job.[9]

Despite the extreme nature of Ms. Tamayo’s personal experience with sexual harassment, there is a silver lining to the outcome of her case. Ms. Tamayo’s request for relief articulated a remedy that looks very similar to the requirements under Title IX,[10] which governs the prohibition on sexual harassment in educational settings. Title IX is probably best known for requiring the designation of at least one Title IX Coordinator on campuses of federally funded educational institutions.[11] This means that if a school receives federal funds, they must use those funds to maintain compliance with Title IX.[12] The underlying policies here are to prevent federal funds from being used for discriminatory purposes and to ensure access to effective measures that will protect students from sexual harassment.[13]

Farm labor is increasingly unregulated, and the informal setting places farmworkers in a very vulnerable circumstance not only with regard to experiencing sexual harassment, but also with regard to their livelihood.[14] However, Ms. Tamayo’s request illustrates what could be an effective means of preventing sexual harassment in the workplace, especially on corporate farms that receive direct government subsidies.[15] Corporate farms, like all employers, must follow requirements provided by Title VII of the Civil Rights Act, which prohibits sexual harassment as a form of discrimination on the basis of sex.[16] Although employers can be held vicariously liable for the misconduct of supervisors,[17] as was the case in Ms. Tamayo’s lawsuit, it is difficult to pursue litigation in most instances of sexual harassment because of the high barriers to reporting.[18]

There are several ways to deepen the negligence standard that corporate farm employers must abide by in sexual harassment cases. First, the definition of sexual harassment should be clarified and aligned with other statutes, such as Title IX and the Violence Against Women Act.[19] Second, the requirement that victims must take reasonable steps to abate the danger of sexual harassment should be eliminated.[20] Third, as part of employers’ requirement to prevent sexual harassment under Title VII, corporate farms should designate a Title VII Coordinator, identify and implement supportive measures, and develop a grievance procedure that preserves the due process rights of the involved parties.[21] The amended final rule of Title IX, promulgated in 2020, ensures fairness due to both victims and the accused and also requires institutions to think proactively about the measures that can be taken to promote a safe environment.[22] The role of the Title IX Coordinator creates the presence of a neutral party who can work to shift the workplace culture by ensuring a safe environment is maintained for all.[23]

By adopting these requirements, Title VII could be developed into a much more effective rule. As Ms. Tamayo’s case demonstrated, farmworkers need greater accessibility to a reliable source of help, and this is exactly what these improvements would accomplish. Such changes would work to prevent sexual harassment from occurring in the first place, both reducing liability for corporate farms and, most importantly, eliminating the normalized injustices done to farmworkers on a regular basis.

[1] Julie Solis-Alvarado, From Fields of Opportunity to Fields de Calzones: Workplace Sexual Violence in America’s Agricultural Industry, 25 Drake J. Agric. L. 293, 303 (2020).

[2] Id. at 295.

[3] Sara Kominers, Working in Fear: Sexual Violence Against Women Farmworkers in the United States  17–18 (2015).

[4] Id. at 27–29.

[5] See generally EEOC v. Harris Farms, Inc., No. CIVF02-6199 AWI LJO, 2005 WL 3039204 (E.D. Cal. Sept. 30, 2005) (detailing the incidences of sexual harassment Ms. Tamayo faced while working at Harris Farms).

[6] Appellant’s Opening Brief at 15–16, EEOC v. Harris Farms, Inc., 274 F. App’x 511 (9th Cir. 2008) (Nos. 05-16945, 06-16317).

[7] Id.

[8] EEOC, 2005 WL 3039204, at *1.

[9] Solis-Alvarado, supra note 1, at 299.

[10] EEOC, 2005 WL 3039204, at *1.

[11] 34 C.F.R. § 106.8(a).

[12] Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979).

[13] Id.

[14] Daniel Rothenberg, With These Hands: The Hidden World of Migrant Farmworkers Today 117 (1998).

[15] See 7 U.S.C. § 612c-4 (authorizing $200 million in annual spending for the purchase of specialty crops, including fruits and vegetables).

[16] 29 C.F.R. § 1604.11(a).

[17] Ida L. Castro, Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999) https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.

[18] Hum. Rts. Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment 67 (2012).

[19] 20 U.S.C. § 1681(a); 34 U.S.C. §§ 12291(a).

[20] Castro, supra note 17.

[21] 29 C.F.R. § 1604.11(f).

[22] See generally 34 C.F.R. § 106 (detailing how educational institutions receiving federal financial aid can comply with requirements regarding unlawful sex discrimination).

[23] See 34 C.F.R. § 106.44(a) (detailing the steps the Title IX Coordinator must take when he or she receives notice of sexual harassment).

Detaching Agency Deference: Improving New Jersey’s Environmental Justice Law as a Guide for Effective Legislation

By Elizabeth Frye | Managing Editor

November 15, 2023

 

 

Environmental justice aims for a fair treatment of environmental protection and “equal access to the decision-making process[es]” for everyone—regardless of race, culture, or income.[1] Low-income and racial- and ethnic-minority communities have been, and are, significantly and unfairly impacted by environmental and public health stressors without meaningful input in government decision making.[2] The federal and state governments have continued to acknowledge environmental justice issues. Yet, there is still a lack of legislation that will significantly contribute to an efficient solution—one that not only repairs decades of damage but establishes a system to preven

t further despair. To avoid continued inequality, environmental justice legislation must recognize the implications of agency deference—those that contributed to these disparities in the first place.[3] Future environmental justice legislation should follow New Jersey’s Environmental Justice Law (the Law) with two key differences: defining compelling public interest and directing a stricter standard of review, minimizing deference to agency misinterpretation.

The Law directs the New Jersey Department of Environmental Protection (the Department) to deny a facility’s permit application if there is a finding of disproportionate impact on a designated overburdened community after assessing both the facility’s statement and community input.[4] However, if the facility can demonstrate the proposal has a “compelling public interest” the Department can attach conditions to the permit to reduce the adverse impact.[5] This compelling public interest exception is not defined in the statute and the legislature did not provide guidance on the conditions or limitations the agency may impose.[6] The statute directs the Department to issue rules in accordance with the Law as they see fit for its implementation.[7]

The Law is revolutionary because it was the first to require agency action.[8] The Law appears to surpass the typical balancing test and is not merely the legislature’s or agency’s best intention to protect the environment or hope that a choice will be made in favor of reducing adverse impacts.[9] Nevertheless, upon closer examination of each of its individual parts, the Law is another outcome-determinative balancing test—which public health interest is more compelling?

Each facility and permit applicable under the Law could very well serve a compelling public interest in s

ome capacity, even without considering economic factors such as whether the facility will provide employment opportunities to the community.[10] The exception is provided to account for some emissions that may be necessary despite the disproportionate impact because there is some other impact which supersedes potential adverse health stressors. Without a definition, the term is vague and open to various, and equally legal, interpretations. Although the Department provides more guidance in the proposed rules for the definition of compelling public interest,[11] the exception will require the Department to balance the interests of public health for each permit review and when the agency approves or rejects a permit under this exception, judicial review will be limited.

Reviewability will be limited because the standard for reviewing agency decisions is one based on reasonableness; the standard is whether an agency acted arbitrarily and capriciously.[12] So, once permits are either approved or denied, the reviewability of these decisions will be minimal because a reviewing court is unlikely to find that the agency acted arbitrarily and capriciously.[13] Therefore, by including an undefined exception, the Law aligns with most environmental protection and environmental justice statutes.[14] A classic example starts with The National Environmental Policy Act (NEPA).[15]

NEPA requires all federal agencies to consider adverse environmental impacts and to prepare an environmental impact statement for “all major federal actions that significantly affect[] the quality of the human environment.”[16] Agencies must use a balancing test: weighing the costs and adverse environmental impacts with the benefits including alternative solutions to proposed projects.[17] But, NEPA does not require the environment to win or require agencies to consider or balance adverse social impacts.[18] But when courts are reviewing actions under NEPA, the standard of review is slightly heightened.

In Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, the court recognized some agency decisions, such as those made under NEPA, qualify for more than a rational basis review.[19] The court reasoned that environmental protection deserves more than a reasonableness standard because NEPA sets a high standard for agencies.[20] The court concluded that since the substantive duties of NEPA required careful and informed decision making, the standards are far from flexible.[21] It was the court’s judicial duty to make the purpose of NEPA a reality.[22] New Jersey courts have yet to apply this reasoned review.

Similar to NEPA, the Law requires the Department to balance competing public interests.[23] While the exception will prove necessary in certain circumstances, and should not be removed, the undefined exception leaves too much leeway for agency decision making that could drastically sway with political changes in the executive branch. The undefined exception provides the Department an opportunity to interpret the exception as overly broad or overly narrow. If the former is adopted, the Law, and the reason it was enacted in the first place, would be swallowed. Without clear intent from New Jersey’s Legislature, courts will award that interpretation great deference.[24]

To ensure the purpose of the Law is properly implemented, the legislature should amend the Law to define “compelling public interest” and direct courts to a harder look standard of review, similar to the heightened standard applied to decisions under NEPA.[25] If not, New Jersey courts should ensure the decisions are made in the best interests of the communities affected aligned with the Law’s overarching purpose.[26] In the battle of environmental justice and agency deference, it’s time environmental justice wins.


[1] Environmental Justice, EPA, https://www.epa.gov/environmentaljustice (last updated Sep. 6, 2023); Learn About Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Aug. 16, 2023).

[2] Meaningful involvement means “people have an opportunity to participate in decisions about activities that may affect their environment and/or health.” Learn About Environmental Justice, supra note 1.

[3] See generally Nerissa-Anne D. Robinson, Deferring Environmental Justice in Mississippi: Agency Deference Legacy Impacts Southern Black Communities, 6 S. Region Black L. Students Ass’n L.J. 100 (2012) (arguing the standard of reasonableness for agency decisions is inadequate for social justice issues); See Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Tp. of Franklin, 233 N.J. 546, 558 (2018) (“A zoning board’s land use decisions . . . enjoy a presumption of validity. They must be allowed wide latitude in the exercise of delegated discretion.” (internal quotation marks omitted)).

[4] N.J. Stat. Ann. §§ 13:1D-157–61 (West 2020).

[5] N.J. Stat. Ann. §§ 13:1D-160(3)(c).

[6] N.J. Stat. Ann. §§ 13:1D-158, 160(3)(c).

[7] N.J. Stat. Ann. § 13:1D-161; see 54 N.J. Reg. 971(a) (June 6, 2022) (proposed rules). The rule has since been finalized, N.J. Admin. Code § 7:1C, but the language of the compelling public interest exception remains unaltered post public comment. Id. § 7:1C-5.3.

[8] See generally Thomas Prol, Fulfilling the Promise of the Civil Rights Movement with Environmental Justice, 336 N.J. Law. 14 (2022) (labeling New Jersey “as a [n]ational leader in environmental justice.”); Julius M. Redd, Hilary Jacobs, & Stacy Sublett Halliday, New Jersey Passes Landmark Environmental Justice Legislation, Nat. L. Rev. (Sept. 1, 2020), https://www.natlawreview.com/article/new-jersey-passes-landmark-environmental-justice-legislation (recognizing New Jersey’s “first-of-its-kind environmental justice legislation”).

[9] Most environmental justice efforts in the United States have followed the pattern of early environmental protection laws, whereas the government acknowledges the issue and instructs agencies to consider it in decision making. These laws establish a mechanism with the hope that the best decision will be made, but the standards are set to a minimum. See generally John A. Mueller & Taylor Lilley, Forty Years of Environmental Justice: Where is the Justice?, 25 Rich. Pub. Int. L. Rev. 75 (2022) (arguing after years of government recognition of environmental justice, it is time for change).

[10] The law lists eight specific industries that must comply with the legislation: major sources of air pollution; resource recovery facilities or incinerators; sludge processing facilities, combustors, or incinerators; sewage treatment plants with a capacity of more than 50 million gallons per day; transfer stations or other solid waste facilities, or recycling facilities intending to receive at least 100 tons of recyclable material per day; scrap metal facilities; landfills, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; and medical waste incinerators. N.J. Stat. Ann. § 13:1D-158.

[11] According to the Department, for a public interest to be compelling, “the primary p

urpose of the facility must be to serve an essential environmental, health or safety need of the host overburdened community for which there is no reasonable alternative to sitting within the overburdened community.” 54 N.J. Reg. 971(a) (June 6, 2022).

[12] See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)

[13] See Waste Mgmt. of NJ, Inc. v. Union Cnty Utils. Auth., 399 N.J. Super. 508, 526 (N.J. Super. App. Div. 2008); Kramer, 45 N.J. at 296–97 (N.J. 1965) (“Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.”); In re Graeta Recycling Co., No. A-2470-04T2, 2007 WL 609161 (N.J. Super. App. Div. 2006) (holding that the Department did not act unreasonably because environmental justice was properly considered).

[14] See, e.g., N.Y. Env’t Conserv. Law, §§ 8-105, 8-0113, 70-0107 (requiring New York’s Department of Environmental Conservation to consider potential disproportionate impacts); Environmental Justice Act, R.I. S2087 (2022) (requiring consideration of dipropionate impacts on overburdened communities for permit applications); see also State and Federal Environmental Justice Efforts, Nat’l Conf. of State Legis. (last updated May 26, 2023), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-advance-environmental-justice.aspx.

[15] National Environmental Policy Act, 42 U.S.C. § 4321 (1969).

[16] 42 U.S.C. § 4321.

[17] Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1111, 1123 (D.C. Cir. 1971).

[18] Id. at 1111.

[19] Id. at 1114.

[20] Id. (“Congress did not intend the Act to be such a paper tiger.”).

[21] Id. at 1115.

[22] Id. at 1111 (“But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role.”).

[23] 42 U.S.C. § 4321 (1969).

[24] See In re Graeta Recycling Co., No. A-2470-04T2, 2007 WL 609161 (N.J. Super. App. Div. 2006).

[25] See generally Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1111 (D.C. Cir. 1971).

[26] N.J. Stat. Ann. §§ 13:1D-157.

 

If a Rising Tide Lifts All Boats, What Remains Below?

By Noah Corbett | Managing Editor

November 14, 2023

Rodanthe, North Carolina, already lost its fourth house to the ocean this year.[1] It begs the question of what to do when the sea literally washes your house away? Even if your house is still on land, nobody wants to waste their money on a risky investment house that will float away in a few years’ time. Plus, regardless of whether homeowners have insurance, they are still on the hook for cleanup efforts which are often costly and stretch for miles.[2] As such, North Carolina, like much of the world, is on the verge of a coastal crisis.

I am not alone in saying this; the United Nations’ Intergovernmental Panel on Climate Change, the National Oceanographic and Atmospheric Association, and North Carolina’s Coastal Resource Commission agree that low-lying coastal areas are in danger of being swallowed by the ocean’s waves.[3] They disagree on how quickly or how high the level of the sea will rise, but broadly speaking, it is inevitable and will harm North Carolina in particular.[4]

So where does that leave North Carolina?

Well, I am glad you asked. It requires looking at the wild      year of 2012: Warlord Joseph Kony was in every headline, Kim Jong-Un had recently      become the leader of North Korea’s military, and Barack Obama won reelection. But in North Carolina, shielded from the limelight,      the State legislature passed House Bill      819 which amended North Carolina’s Coastal Area Management Act of 1974. The amendment clearly states the legislature’s intent not to mandate a sea-level rise policy or definition and outright bars any action on that front for the next five years.[5] Lastly, it abandons North Carolina’s local governments to figure out how best to proceed: whether to discuss, plan, or enact policy around sea-     level rise and climate change or hope for the best and ignore the problem.[6]

As      ridiculous as it is to abandon local governments to establish solutions for a global issue without a fraction of the resources or available help that the state itself could bring to bear, the responses were predictably inconsistent.[7] Regardless of that inconsistency, within eleven years, even Dare County, one of the wealthiest coastal communities, which previously spent $100 million on beach restoration, cannot afford its continued existence.[8] That does not even account for the fact that poor counties, like Tyrrell County, feel the impacts faster and are already struggling to account for floodwaters, raise houses above the waterline, or move people to higher ground.[9]

How to move forward?

At the very least, North Carolina needs to start the conversation and look frankly at the realities in front of them. But in an actionable sense, North Carolina’s Legislature must change its stance on climate change and climate readiness. Further, they need to make available funds at the state level, in conjunction with local communities, or by working with federal programs, like the Federal Emergency Management Agency’s Pre-Disaster Mitigation Grant Program. If no more natural solutions are available, or those that would temporarily stall the damage—like putting houses on raised stilts, which is already a common practice on North Carolina’s coast—it might be worth considering relocation.

Relocation, however, comes with its own pitfalls. For one, there is nowhere else to go when the entire community covers every square inch of a sand bar just above the ocean line. Furthermore, it unfairly punishes impoverished communities if the expectation is that they abandon their property. That is not to say that abandonment is the only option; eminent domain exists, as do voluntary buyout programs. However, that comes at a substantial cost that North Carolina likely could not bear alone. Nevertheless, all socioeconomic statuses will feel the pain, and thousands of homes and businesses will be underwater assets dragged out and drowned at sea.[10]

[1] Peter O’Dowd, In Rodanthe, North Carolina, More Homes      Are at Risk After Another Home Collapses into the Ocean, npr, at 00:25 (Mar. 31, 2023), https://www.wbur.org/hereandnow/2023/03/31/homes-collapse-ocean-sea-levels.

[2] See Mike Andrews, Debris Stretch 21 Miles After House Collapse in Outer Banks, Officials say, WNCT9 (Mar. 15, 2023), https://www.wnct.com/weather/debris-stretches-21-miles-after-house-collapse-in-outer-banks-officials-say/ (explaining debris stretched for 21 miles); Richard Fausset, Beach Houses on the Outer Banks are Being Swallowed by the Sea, N. Y. Times (May 14, 2022), https://www.nytimes.com/2022/05/14/us/outer-banks-beach-houses-collapse.html (explaining that cleanup cost one homeowner $57,000).

[3] See Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability 1963 (Working Grp. II ed.) (2022) (explaining that a one-meter rise in sea level will happen within the next 75 years and resulting in 42% of the Albemarle-Pamlico peninsula underwater); William V. Sweet et al., Global and Regional Sea Level Rise Scenarios for the United States vii (2017) (explaining that NOAA expects sea level rise higher in North Carolina and on the east coast relative to the IPCC’s stated numbers); N.C. Coastal Res. Comm’n Sci. Panel, North Carolina Sea Level Rise Assessment Report 9–10 (2016) (demonstrating the expected impacts of sea level rise at a granular level across North Carolina’s coastline).

[4] See N.C. Coastal Res. Comm’n Sci. Panel supra at 22 (explaining North Carolina will be impacted and that there will be an increased number of flooding events as sea level rises).

[5] Coastal A     rea Management Act of 1974, N.C. Gen. Stat. §113A-107.1 (2022); 2012 N.C. Sess. Laws 202.

[6] Id.

[7] See Caitlin Thompson, North Carolina’s Notorious Climate Change Law—The Rich      Are OK, the Poor Aren’t, .coda (June 29, 2021), https://www.codastory.com/waronscience/climate-change-north-carolina/ (“In the low-lying neighborhood of Goat Neck in Tyrrell County, about 45      minutes from Nags Head, the response to sea level rise has been very different.”).

[8] Keenan Willard, Outer Banks Set for Massive Beach Nourishment Project, WRAL News (Jun. 18, 2021), https://www.wral.com/nearly-100-million-set-to-go-toward-most-expensive-outer-banks-repair-effort-in-dare-county-history/19732917/; see also Peter O’Dowd supra note 1, at 03:08 (“Rodanthe needs [beach renourishment]. Our issue is we don’t have enough money to do another project in Rodanthe.”).

[9] See Caitlin Thompson, supra note 7 (“Many homeowners in Goat Neck don’t have the resources to elevate their houses.”); see also Willard, supra note 8     . (“Tyrell County doesn’t have the money to take on big infrastructure projects that would make neighborhoods like Goat Neck more resilient to climate change.”).

[10] Quick Facts, Beaufort County, North Carolina, Carteret County, North Carolina, Dare County, North Carolina, Hyde County, North Carolina, Tyrrell, County, North Carolina, Washington County, North Carolina, U.S. Census, https://www.census.gov/quickfacts/fact/table/darecountynorthcarolina,carteretcountynorthcarolina,tyrrellcountynorthcarolina,hydecountynorthcarolina,beaufortcountynorthcarolina,washingtoncountynorthcarolina/INC110221 (last visited,      Nov. 6, 2023) (excluding Currituck, Pender, or other vulnerable counties, potentially ~121,000 housing units across six counties are vulnerable to sea level rise).

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