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Oliphant v. Suquamish; Rape and Native American Women

By Kenzie Davidson, New York University Class of 2024

December 29, 2023

In 1978, the United States Supreme Court ruled on a landmark case in Indian Law: Oliphant v. Suquamish Indian Tribe. Using a “curious doctrine” known as “implicit divesture” [5], the Supreme Court ruled that tribal courts had lost various components of sovereignty and ultimately “divested tribal courts of criminal jurisdiction over non-Indians" [5]. Therefore, the 1978 Oliphant decision marked the illegality of native tribes to exercise criminal jurisdiction over non-Indians when it came to criminal offenses committed within reservation territory [13]. The fact that tribal governments lost their ability to prosecute crimes enacted by non-Natives on their land undermined their sovereignty and threatened their safety in significant ways. The Oliphant v. Suquamish case is representative of a major piece of a much larger puzzle regarding tribal law as well as, more specifically, violence against Native women today.

Sarah Deer, author of “The Beginning and End of Rape: Confronting Sexual Violence in Native America,” is particularly interested and well-educated about tribal law and its relation to sexual violence, such as rape, against Native women today. Sarah Deer is a citizen of the Mvskoke (or Creek) Nation of Oklahoma [12]. As a tribal citizen who was not raised on reservation land, Deer has a profound connection to the issues facing native communities and a unique perspective to enact change. Deer has made a career as a legal scholar focused on criminal justice issues impacting tribal communities in the United States [11]. Deer has spent over 25 years working with Native survivors of violent crime, often rape, as well as with professionals working within the criminal justice system [11]. Additionally, she has worked with many Native-based organizations run by women [5], has served as Chief Justice for the Prairie Island Community Court of Appeals [11], co-authored four textbooks on tribal law [11], has been published in Gender and Law journals such as Harvard’s, Yale’s, and Columbia’s [11], has testified before Congress on four different occasions regarding violence against Native women [11], was appointed by Attorney General Eric Holder to chair a federal advisory committee about sexual violence in native communities [11], and has had her criminal justice reform efforts acknowledged with awards from the American Bar Association and the Department of Justice [11].

Sarah Deer focuses on the intersection of federal Indian law and victims’ rights, using “indigenous principles as her framework to benefit the communities she seeks to help” [11]. Initially, the discovered her interest in Indian law as she came to understand that “achieving social justice for oppressed people was a question much larger than a single rape trial” [5]. Deer explains that “[she] began to see linkages between [her] interest in justice for victims of crime and my interest in enhancing tribal self-determination" [5]. Deer’s profound interest, knowledge, and expertise is highly apparent in her book as she tells a comprehensive story of the issue of rape against Native women by discussing tribal systems, colonial interference, and the impact of the American legislative system on tribal sovereignty.

Prior to colonialism in North America, both the prevalence of sexual violence and tribal responses to rape looked very different compared to today. Native women's activists who documented the traditional responses of tribal communities to rape state that “according to the oral traditions within our tribal communities, it is understood that prior to mass Euro-American invasion and influence, violence was virtually nonexistent in traditional Indian families and communities” [5]. While tribal communities were not entirely “rape-free,” the frequency of violent crime was low “in part because of the immediate and severe consequences for disrupting balance in society” [5].

Without American legal imposition, sovereign tribal nations historically were able to exercise full jurisdiction over crimes against women. “Tribal systems provided a powerful system of social checks and balances that held offenders accountable for their behavior”–a system that has been undermined by colonialism and American legislation for over a century [5]. Some of the earliest known Mvskoke tribal laws to be written down were documented in 1825. The 35th law addressed gendered violence:

“And be it farther enacted if any person or persons should undertake to force a woman and did it by force, it shall be left to woman what punishment she should be satisfied with to whip or pay what she say it be law” [5]

The law clearly recognizes the value of the opinion and experience of women. What she say it be law reflects powerful sentiments regarding gender and victim-centered legal processes that have never been present in the American legal system. In the American legal system, “victims of violent crime have historically had no voice in the criminal justice processes” [5]. Indigenous women were “honored” and “essential to maintaining tribal cultures” [15]. One Cheyenne proverb states that “a tribal nation is ‘not conquered until the hearts of its women are on the ground’” [15]. This is the very reason it is so critical that we focus on the issue of rape against Native women today as it is a practice that breaks down tribal societies via harm to their women in substantial and lifelong ways.

Today, rape against Native women is an extremely prevalent issue. To grasp the gravity of the situation, the frequency of rape within Native communities is often called an epidemic. However, Deer argues that considering the history of colonialism in North America, calling the issue an epidemic is the wrong word to use. She explains that “using the word epidemic deflects responsibility because it fails to acknowledge the agency of perpetrators and those who allow the problem to continue” [5]. The word ignores the crisis’s roots in history and law. Ultimately, Deer claims that “rape in the lives of Native women is not an epidemic of recent, mysterious origin. Instead, rape is a fundamental result of colonialism, a history of violence reaching back centuries. An epidemic is a contagious disease; rape is a crime against humanity” [5].

The crisis of rape against Native women today can be traced back to the foundation of the United States as both a legal and political structure [5]. Deer explains that “the crisis of rape in tribal communities is inextricably linked to the way in which the United States developed and sustained a legal system that has usurped the sovereign authority of tribal nations” [5]. From the onset of European colonization, violence against Native women was a primary tool used for conquest and genocide [4]. “Amesty International and other organizations assert that this strategy normalized and now fuels today’s high rate of violence against and sexual abuse of Native American women, as well as the impunity enjoyed by their attackers” [15]. Deer argues that “the colonial legal system has failed Native women by supplanting women-centered societies with patriarchal, oppressive structures that condone and thrive on violence as a way to control and oppress members of marginalized communities” and that “because rape played such a significant role in past attempts to destroy indigenous nations, it is critical that tribal nations develop and strengthen their responses to rape as part of broader political work toward achieving sovereignty” [5]. She highlights that across the world, indigenous people share one experience in common: “intrusion on their lands and culture by an exterior, hostile outsider” [5]. From what Deer has seen in her decades of work, she compares the dynamic of intrusion on indigenous lands to rape victims experiencing invasion of their bodies and souls.

The issues of tribal jurisdiction and rape against Native women both have to do with sovereignty. Sarah Deer conceives of sovereignty as a “description of self-determination" [5]. She claims that “it is impossible to have a truly self-determining nation when its members have been denied self-determination over their own bodies” [5]. Deer, while working with many Native survivors of rape, has witnessed firsthand just how devastating this crisis is today. She explains how she “listened to women as they realized they represented the fifth generation of women in their family to be victims of sexual assault,” she “talked with tribal police officers who explained how rapists walked free on a regular basis, even taunting their victims and tribal officials because of legal loopholes”, that Native women talk to their daughters about “what to do when they are sexually assaulted, not if they are sexually assaulted, but when,” and reflects on how she has heard the words “I don’t know any woman in my community who has not been raped” come from Native women more than once [5]. Rape in Native communities is so prevalent that it has become normalized. “Native women who experience rape need and deserve a tribal-centric response to their experiences…a response that centers a contemporary Native woman in her unique place and time, empowering her to access the collective strength and insight that have helped her people survive” [5]. Ultimately, rape has an impact on the entire Native community. “Women play significant roles in tribal communities, culturally, spiritually, and politically, and have been referred to as the ‘backbone’ of tribal sovereignty. Sovereignty thus suffers when the women suffer” [5].

This discussion is in no way intended to further the tropes of native communities being traumatized and broken, but rather to focus on their resilience and strength to survive in the face of so much devastation. The case of rape alone is more than any group of people should ever have to endure. The data is irrefutable and states that violent crime is experienced by Native women at much higher rates than almost all other groups of people within the United States, and most experts from tribal communities have claimed that “the federal statistics represent at best a very low estimate. Actual rates of sexual assault against Native American women are actually much higher” [5]. The statistic called “an assault on our national conscience” by President Barack Obama in 2010 states that 1 in 3 Native women will be raped in her lifetime [5]. Additionally, “at least 86% of perpetrators of these crimes are non-Native men” [10]. The fact that the majority of perpetrators are non-Native is critically important in this discussion and regarding legislative reform. “As a baseline, the vast majority of rapes in the United States are intraracial, meaning that victims are usually attacked by persons of their own race...the only exception to this general rule is AI/AN women, who report that the majority of assailants are non-Native” which is an anomaly in the U.S. [5]. The fact that the vast majority of crime within the United States is intraracial and the majority of violent crime experienced by Native communities is interracial is incredibly important to consider when addressing legislation that has been imposed against tribal communities and has impeded their ability to protect themselves through their own legal systems.

Over time, federal Indian law has imposed legal and practical barriers that have impacted tribal governments’ abilities to exercise criminal jurisdiction and respond effectively to rape. Overall, “federal Indian Law is the quintessential example of an oppressive American legal structure” [5]. Because of American legal imposition regarding the ability of tribes to prosecute crimes against their citizens and a long history of anti-Indian and anti-woman policies in the United States, “there is a sense that a ‘rapeability’ factor” [5] is present regarding tribal territories. “Predators may target Native women and girls precisely because they are perceived as marginalized and outside the protection of the American legal system” [5]. Deer argues that “whether the rate is 20 percent non-Native or 80 percent non-Native, tribal nations should have full authority to respond to crimes committed by all persons” [5]. Tribal governments and courts have struggled to respond to the issue of sexual violence against Native women because of how their legal systems and tribal sovereignty have been undermined and abused by American legislation which has significantly transformed tribal jurisdictional control.

Forced assimilation by the American legal system against tribal governments has dominated colonial-tribal relations throughout history. Prior to colonial influence, the Mvskoke tribe as well as most others “relied for millennia on sacred oral traditions and ceremonies both to establish and enforce legal standards” [5]. The hallowed oral tradition stemmed from the belief that “reducing laws to writing weakened their power by limiting accessibility to few and losing the value of rhythm and intonation” [5]. This sacred system was thoroughly misunderstood by European witnesses. “Seeing no judges, courtrooms, or attorneys, settlers assumed that Native people were without law. This assumption made it morally palatable to impose foreign laws upon Native people” [5]. For instance, at the same time that Mvskoke law included “what she say it be law” in its language, American law stated that married women had no legal right to deny sex to their husbands. After fifty years on constant pressure to assimilate to the legal and political structures of America, the Mvskoke rape law was revised to make no mention to gender or the victim at all. The importance of smaller changes such as this should not be understated, but there are several much more significant changes to tribal law with even more significant implications.

Over the past 150 years, there have been four major pieces of American legislation that have largely impacted tribal sovereignty and their ability to protect themselves under the law. The first major transition came with the Major Crimes Act passed by Congress in 1885. The MCA unilaterally imposed a federal prosecutorial framework over tribal nations, giving the federal government criminal authority over the vast majority of reservations [1]. By forcing the federal criminal justice system onto tribal communities, Native rape survivors were highly impacted because they were mandated to navigate an unfamiliar and hostile system in order to report rape to law enforcement [1]. “Since the efforts of the government were designed to extinguish the very existence of tribal nations, it is more likely that Congress intended to infiltrate and control the indigenous populations through increased legal authority” [5]. However, the MCA of 1885 is complex in that it “never explicitly divested tribal nations of authority over the enumerated crimes” [5]. This means that the tribes technically retained authority over all crimes, even those mentioned in the MCA, though they became subject to various limitations.

The second legislative transition occurred when Congress passed Public Law 280 (PL 280) in 1953. This law marked the transfer of federal jurisdiction over criminal matters, as established in the MCA, over to a number of state governments [3]. The law was intended to force Native people to assimilate to the mainstream U.S. population; as Sarah Deer explains, “PL 280 was part of a larger mid-twentieth-century effort to ultimately ‘terminate’ recognition of tribal nations” [5]. This law complicated American legal imposition further because neither the states nor the tribes consented to the arrangement implemented by PL 280. Additionally, “states were not provided with any additional resources with which to enforce crimes in Indian country...PL 280 has led to widespread criminal justice dysfunction in those states” [5].

After the MCA and PL 280 came the Indian Civil Rights Act of 1968. The Indian Civil Rights Act, or ICRA, had several major impacts. First, the ICRA forces tribal governments to “enforce legal norms as enshrined in the language of the Bill of Rights,” an ideological framework not historically shared by Native people [5]. This act built on the intentions of PL 280 in that when federal lawmakers realized that tribal governments were not at the mercy of the U.S. constitution, they wanted to enforce further assimilation and hegemony [6]. Additionally, ICRA places a cap on the sentencing authority of tribes. For example, when the Act was initially implemented, “incarceration was limited to six months and fines were limited to five hundred dollars” [5]. Compared to American law standards, this means that tribes were limited to sentencing only misdemeanor crimes. The implications of the ICRA are highly relevant when it comes to the issue of rape; under American law, nearly all sex crimes are felonies. While the MCA did not divest tribal felony jurisdiction initially, the sentencing cap that the IRCA placed ensured that tribal governments could not appropriately exercise authority over crimes such as rape.

Each of these legislative changes led up to the landmark case Oliphant v. Suquamish in 1978. A White settler by the name of Mark David Oliphant assaulted a tribal officer on the Port Madison Indian Reservation, a sovereign property of the Suquamish people. Oliphant was then placed under arrest by the Suquamish Indian Provisional Court [8]. Oliphant later submitted a writ of habeus corpus, alleging that he could not be arrested by the Court because the Court did not have criminal jurisdiction over non-Indians [8]. This case was ultimately taken to the Supreme Court. In a 6-2 decision favoring Oliphant, tribal governments were stripped of power to prosecute and punish non-Indians for crimes committed in Indian country [9]. One reason provided by the court regarding their holding was that “Congress’ actions during the 19th century reflected that body’s belief that Indian tribes do not have inherent criminal jurisdiction over non-Indians" [14]. The “actions” of Congress considered by the Supreme Court include the MCA, PL 280, and the ICRA. The official case ruling, in an effort to reduce the argument against tribal jurisdiction over non-Indians, said that “few Indian tribes maintained any semblance of a formal court system” and that “there was little reason to be concerned with assertions of tribal court jurisdiction over non-Indians because of the absence of formal tribal judicial systems” [14]. This came from settlers disrespecting and not viewing tribal systems as legitimate. They believed their “formal” judicial system was the only proper system, even though their proper system is the one failing to prosecute criminals harming native people today. By stripping tribes of their jurisdictional power, this case targeted the interracial nature of violent crimes against Native women and took the power to obtain justice out of tribal hands, perpetuating the significant issue of rape against Native women. “From a survivor’s perspective, the Oliphant decision means that non-Native men who rape Native women on tribal lands completely escape tribal criminal sanctions” [5]. Further, data analyzed after the Oliphant decision demonstrated that the implications of the case ruling have created serious gaps in law enforcement on reservations with non-Indian populations. “Because most reservations have ceased all criminal enforcement against non-Indians and no other agency has assumed responsibility for these crimes, unregulated non-Indian crime has increased” [13]. It is said that Oliphant created a crisis situation in tribal communities as “violent people are attracted to Indian country as they perceive it as a location in which crimes can be committed with impunity” [5]. Deer explains that “Pedophiles and sexual predators also commit crimes within Indian country because of the vulnerability of the citizens and the jurisdictional gaps” [5]. Federal officials of all kinds have not been upholding their duties to protect Native people, especially Native women; however, there are also numerous accounts of federal officials who have committed heinous sex crimes against Native women and girls themselves. Oliphant threatened the safety of Native women, and the federal officials that women are forced to turn to for protection have also proven to be a danger.

In terms of social and legislative reform to these overlooked issues, there have been some small improvements since Oliphant v. Suquamish. Due in large part to the efforts of Native women, the Tribal Law and Order Act (TLOA) of 2010 and revisions to the Violence Against Women Act (VAWA) have been implemented, representing significant shifts in federal policy. The TLOA slightly raised the sentencing cap imposed by the ICRA. “Tribal courts, if certain requirements are met, can now punish a rapist by sentencing him to jail for a maximum of three to nine years and fining him up to $15,000” [5]. The 2013 amendments to VAWA have become known as part of the quest for an Oliphant fix. The amendments have been labeled a “partial Oliphant fix” because they “restored tribal jurisdiction over non-Indians who commit acts of domestic violence on tribal lands,” a decision that significantly alters the Oliphant ruling [5]. However, it is only a partial fix because the jurisdictional reform implemented by VAWA “is explicitly limited...to violence committed by spouses, former spouses, or dating partners” [5].

Though things have been improved, “it is evident that the federal and state systems will not serve as the ultimate foundation for liberating tribal nations from the legacy of rape” [5]. There are many things to consider in order to begin to restore the sovereignty of tribal nations as well as remedy the relationship between the U.S. federal system and tribal courts. Sarah Deer wholeheartedly believes that “people who are violently assaulted should be the central focus of our justice system” [5]. She argues that the current tribal system has been deeply damaged by the failure to include tribal perspectives, and that in considering their voices, substantial reform can occur. One way legislation can help to benefit survivors of sexual violence is to end the practice of placing legal distinctions between different “types” of rape. Some legal scholars have advocated for a distinction between violent rape and nonconsensual sex. While this argument does have merit, the baseline determination of rape is that it is nonconsensual sex. Whether or not the act was additionally violent does not change the fact that any rape has profound lasting psychological and spiritual effects. If the justice system were to adopt the distinction between the two “types” of rape in law, that would put a burden of proof on survivors to demonstrate harm or violence done to them. Women, especially Native women, struggle to feel remotely safe enough to report the assault after it occurs, and the notion that she would be forced to come forward quickly in order to prove substantial injuries so that her rapist would be put to justice appropriately is harmful to all women. Also, data gathering in Native communities needs to improve as they are a largely overlooked demographic and are notoriously difficult to obtain data from. More information needs to be collected because “advocates and survivors are a critical part of this painful conversation…survivors are the experts in how the laws have or have not protected them” [5]. Deer argues that “maximizing sovereign authority by establishing a variety of legal remedies for rape will ideally provide victims of rape with a much wider array of options for achieving justice” [5].

When it comes to reform, Sarah Deer highlights the interesting fact that in many ways, “tribal governments have the capacity to draft and implement the most progressive and comprehensive laws in the world, in part because they are not necessarily limited by the precedent and the incremental reform that is usually required at the state and federal level” [5]. In her time working at the Tribal Law and Policy Institute, Sarah Deer worked to develop plans for tribes seeking to reform their legislation regarding gendered violence [5]. Using insight from tribal communities to consider what laws they truly needed, Deer and others created workbooks applicable to every tribal government. She explains that “even survivors who choose not to engage with the criminal justice system can benefit from a clear directive in tribal law that defines their experience as a crime. It can be validating for a woman to know that the harm she has experienced is considered to be criminal behavior” [5]. Additionally, she argues that “while we are reforming federal law we also have to reform tribal law so that we can put the control back into the hands of the tribal governments in a very practical way. If jurisdiction is restored to tribal governments, tribes must be able to effectively prosecute those crimes, or very little changes for the lives of the victims” [5].

Additionally, it is important to discuss legal punishments to such violence. Deer makes an effort to seek a balance between historical tribal punishments that didn’t include incarceration and American incarceration systems that disproportionally imprison people of color as well as represent the abusive power dynamic that tribal communities have endured since the beginning of colonialism. Sarah Deer acknowledges that incarceration is a controversial argument in terms of punishing offenders, but she advocates for more punitive measures to punish offenders than those traditionally used by tribal communities: “If people are not truly held accountable through some kind of punitive system, it sends a strong message to future generations that the penalty for behaving in sexually abusive ways is counseling and ceremony. Survivors will be reluctant to come forward if the system does not seem to be sending a strong message that sexual abuse will be treated as a serious violation of the law” [5]. Since the U.S. prison system is a very sensitive topic in relation to tribal communities, Deer suggests that “if incarceration is not a long-term solution, it may still be worth considering as a short-term solution for particularly dangerous offenders” [5]. In the meantime, it is important to consider that U.S. jails may not be the appropriate places to serve their time in the future. “Ideally, tribal jails could be reformed in such a way that they provide safety for communities, as well as accountability and rehabilitation for offenders” [5]. Deer explains that since “tribal governments have only entered into the prison-industrial complex in the past few decades...there may still be time to rethink how containment can provide both safety and accountability” [5].

Overall, it is critically important that more people understand the issues that are plaguing Native communities today and where exactly they come from. In this case, the American judicial system has played an overwhelming role in undermining the safety and sovereignty of Native nations. In order to achieve justice, survivors of sexual violence frequently have to navigate a maze of tribal, state and federal law. The US federal government has created a complex interrelation between these three jurisdictions that undermines equality before the law and often allows perpetrators to evade justice” [7]. Today, federal and state governments should be mandated to cooperate with Indigenous nations, specifically with women, in order to implement plans and systems that can help to stop the violence enacted against their communities at such a high rate [7]. Then, it is of the utmost importance that prosecutors vigorously prosecute offenders and that systems are supplied with sufficient resources to ensure that women get justice with appropriate attention and without undue delay. Tribal law and U.S. law are both complex frameworks that only become more complicated as they become involved with each other. The imposition of the American legal system over native governments led to a profound and severe issue of rape against Native women that continues today, but we have the means to restore sovereignty and safety to these communities if we continue in the right direction.

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[1] “679. the Major Crimes Act-18 U.S.C. § 1153.” Justice Manual | 679. The Major Crimes Act-18 U.S.C. § 1153 | United States Department of Justice, 22 Jan. 2020, www.justice.gov/archives/jm/criminal-resource-manual-679-major-crimes-act-18-usc-1153.

[2] “687. Tribal Court Jurisdiction.” Justice Manual | 687. Tribal Court Jurisdiction | United States Department of Justice, 22 Jan. 2020, www.justice.gov/archives/jm/criminal-resource-manual-687-tribal-court-jurisdiction.

[3] “American Indians and Alaska Natives - Public Law 280 Tribes.” The Administration for Children and Families, www.acf.hhs.gov/ana/fact-sheet/american-indians-and-alaska-natives-public-law-280-tribes#:~:text=In%201953%2C%20Congress%20enacted%20Public,be%20handled%20by%20state%20courts. Accessed 20 Dec. 2023.

[4] “The Colonial Roots of Violence Against Native American Women.” Columbia University Mailman School of Public Health, 16 Mar. 2023, www.publichealth.columbia.edu/news/colonial-roots-violence-against-native-american-women.

[5] Deer, Sarah. The Beginning and End of Rape: Confronting Sexual Violence in Native America. University of Minnesota Press, 2015.

[6] “Indian Civil Rights Act of 1968 - California Courts.” Indian Civil Rights Act of 1968, California Courts, courts.ca.gov/documents/Indian-Civil-Rights-Act-of-1968.pdf. Accessed 20 Dec. 2023.

[7] “Maze of Injustice - Amnesty International.” Maze of Injustice, Amnesty International , 2007, www.amnesty.org/fr/wp-content/uploads/2021/05/AMR510352007ENGLISH.pdf.

[8] “Missing & Murdered Indigenous Women.” OLIPHANT V. SUQUAMISH TRIBE (1978), American University, edspace.american.edu/mmiwlawsandlegacies/jubilee/. Accessed 20 Dec. 2023.

[9] “Oliphant v. Suquamish Indian Tribe.” Oyez, www.oyez.org/cases/1977/76-5729. Accessed 20 Dec. 2023.

[10] “Rape of Native Women.” Rape of Native Women Comments, Amnesty USA, 6 Oct. 2020, bidenhumanrightspriorities.amnestyusa.org/rape-of-native-women/#:~:text=Native%20women%20are%202.5%20times,crimes%20are%20non%2DNative%20men.

[11] Sarah Deer, www.sarahdeer.com/. Accessed 20 Dec. 2023.

[12] “Sarah Deer.” Kansas University School of Law, law.ku.edu/people/sarah-deer#:~:text=Biography%20%E2%80%94,at%20the%20University%20of%20Kansas. Accessed 20 Dec. 2023.

[13] Skibine, A T, and M B Oliviero. “Law Enforcement on Indian Reservations after Oliphant v Suquamish Indian Tribe - an Identification of the Problems and Recommendations for Remedies.” U.S. Department of Justice; Office of Justice Programs, 1980, www.ojp.gov/ncjrs/virtual-library/abstracts/law-enforcement-indian-reservations-after-oliphant-v-suquamish.

[14] “U.S. Reports: Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).” The Library of Congress, 1977, www.loc.gov/item/usrep435191/.

[15] Whyatt, Robin. “Violence against Native Women Has Colonial Roots.” The Progressive Magazine, 2 Mar. 2023, progressive.org/magazine/violence-against-native-women-has-colonial-roots-whyatt/#:~:text=In%20addition%20to%20sexual%20abuse,sustain%20the%20tribes%20through%20childbearing.

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newyorkprelawland-blog · 5 months

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No-Fault Divorce in a Complicated Legal and Political Situation

By Kensington Jones, New York University Class of 2025

December 2, 2023

A recent hot-topic brought forth by republican commentators recently has been the topic of no-fault divorce. Several states are considering pushing an agenda to challenge and overturn this popular form of divorce. Thus, a very common way that many individuals have used to end a marriage may be at risk in some states due to the increasingly controversial nature of the issue.

First, it is important to establish the meaning of no-fault divorce. No-fault divorce allows for an individual to end a marriage without proof that they faced some sort of mistreatment from their spouse. This makes no-fault divorce a simpler path to filing for a divorce as a fault divorce on the other hand does require proof of wrongdoing [1][2]. No-fault divorce’s more simplistic nature is what makes it so popular today. Before many states had no-fault divorce, it was not uncommon for couples to make up fictitious reasons to establish grounds for a divorce [3]. This, of course, led to many complications. Thus, the implementation of no-fault divorce made not only the legal process of getting a divorce simpler, but it also made the legal process more straightforward as well. By 2010, every US state had legalized its own form of no-fault divorce with some states even going as far as to not even recognize fault divorces [3][2].

However, despite the advantages of no-fault divorce, we still see a considerable group emerging and growing in number who are against it. Conservative commentators, members of conservative parties, and religious groups are increasingly making pushes against no-fault divorce for various different reasons [3]. One argument against no-fault divorce lies in its constitutionality. There have been arguments made that no-fault divorce violates the Fourteenth Amendment as it deprives individuals of due process. While this stance presents a constitutional argument against no-fault divorce, religious arguments have been made as well. Some religious groups have pushed against no-fault divorce due to their belief that it does not align with the morals profused in the bible [3]. Additionally, many argue that no-fault divorce has resulted in many harmful impacts to society such as a general increase in the rates of divorce and an increased rate of instances of domestic violence [2]. On a side note, while this argument is quite common with non-supporters, others in support of no-fault divorce have made the opposite claim concerning domestic violence. An often quoted source to support their claim about a decrease in domestic violence with no-fault divorce is a study done by the National Bureau of Economic Research. Their study shows that domestic violence rates decreased among men and women upon the introduction of no-fault divorce.

[4]

Returning back to the topic at hand, however, these arguments have contributed to the controversy surrounding no-fault divorce and has thus sparked conversations about overturning it in states such as Louisiana, Nebraska, and Texas [5]. Whether no-fault divorce will be overturned in these states is still unclear. If this law across these states were to be overturned, the legal aspects regarding approaches to divorce and marriage are bound to change.

One of the ways in which marriage may change is with the addition of covenant marriage. Indeed, covenant marriage is being supported by many of the opposers of no-fault divorce. Covenant marriage is a form of marriage that limits options for divorce as this form of marriage can only be broken for a limited number of reasons such as domestic abuse, for example. As of right now, covenant marriages are only recognized in Louisiana, Arizona, and Arkansas and remain very unpopular [3]. For instance, only 1 percent of marriages were covenant between the year 2000 and 2010 [6]. Despite this form of marriage’s unpopularity, a critical reason why there is a push for it from non-fault divorce opposers is due to their concern of divorce rates. According to Census data, no-fault divorces were initially connected with a higher rate of divorces in the US. However, what may be of some comfort to non-supporters is that this data also reflects the higher rate of divorce from no-fault divorces dropping over time.

[7]

Thus, while divorce rates would most likely fall with the introduction of covenant marriages in more states due to its restrictive nature, it is important to note that no-fault divorces seem to no longer cause an increase.

The status of no-fault divorce is at risk or being involved in a complicated situation. While it remains the most popular option for divorce for its legal simplicity, controversy around it may be starting to grow. Whether or not this controversy will truly be addressed in either the legal and political fields is still unclear, but it is something to keep an eye out for in the future.

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[1]https://www.cnn.com/2023/11/27/us/no-fault-divorce-explained-history-wellness-cec/index.html

[2]https://www.law.cornell.edu/wex/no-fault_divorce

[3]https://www.cnn.com/2023/11/27/us/no-fault-divorce-explained-history-wellness-cec/index.html

[4]https://users.nber.org/~jwolfers/papers/bargaining_in_the_shadow_of_the_law.pdf

[5]https://www.cnn.com/2023/05/18/opinions/crowder-right-wing-rhetoric-about-divorce-ignores-history-shanley/index.html

[6]https://theweek.com/feature/briefing/1015726/are-republicans-coming-for-no-fault-divorce

[7]https://ifstudies.org/blog/the-us-divorce-rate-has-hit-a-50-year-low

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newyorkprelawland-blog · 5 months

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The Comstock Act of 1873; Obscenity Regulation and the Abortion Debate

By Kenzie Davidson, New York University Class of 2024

November 21, 2023

The term “obscenity” (or “obscene”) comes from the Latin word obscenus. The root of the word means “dirt” or “filth;” baked into the word itself is this idea of dirtiness. The Latin origin of obscene refers to something filthy, disgusting, boding ill, polluted, and hateful [4]. Since the earliest utilization of the term, there has been a moralistic charge built into it. Later, in 1737, “El Diccionario de Autoridades – Tomo V” defined obscene to mean impure, dirty, clumsy, and ugly. The meaning and evolution of the term is tied to tautological reasoning and logic; repetitious and circular use of this word acts as a self-justifying process that alters and reaffirms societal concepts of obscenity.

The moralistic charge built into “obscenity” supports the fact that people throughout history have sought to control access to things deemed to be obscene. This relates to what is called “the politics of visibility.” Certain laws are made to control what is visible and make other things invisible. One 150-year-old piece of legislation, recently brought back to life, is this exact kind of law. Obscenity informs the distinction between what should and shouldn’t be visible and is a significant factor in the abortion conversation happening today. However, the story of how it came to be so relevant starts in the 1870s.

In the 1870s, the U.S. experienced an influx of erotic materials and literature which led to a “moral panic” [1]. Anthony Comstock was a devout Christian and a Civil War Veteran who was the leader of the New York Society for the Suppression of Vice, “an organization that policed the morals of the public” [1] and was “obsessed with combating what he saw as a culture of sexual impurity” [6]. He believed that the societal corruption he witnessed was furthered simply by the existence of birth control, abortion, pornography, and even nudity in art [3]. Driven by his personal moral compass and supported by his relative prestige, Anthony Comstock advocated for legal change and argued that “’our youth are in danger’” [8]. Ultimately, he succeeded in convincing Congress to pass the Comstock Act of 1873 in order to ban the spread of obscene materials [1]. In 1873, obscenity faced a turning point in its evolution where one man, Anthony Comstock, got to decide what was and was not “obscene.” It was up to his discretion, but “even in the hyper-conservative Victorian era, many thought his views were extreme” and people mocked his “overzealous censorship” [3]. If the Comstock Act was somewhat antiquated and extreme even within its less progressive historical context, it is worth thinking critically about its value in informing major legal decisions today.

Image: [2]

The Comstock Act uses vague language and fails to define “obscene” or “immoral” which contributes to the staggering scope of what the Act could legally control. The Act asserts that anyone who distributes or possesses and “obscene” material “or other article of an immoral nature” shall be imprisoned [2]. The most critical prohibitions are found buried in the legal text; included in the long list of “immoral” materials that Anthony Comstock wanted to eradicate were “any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion” [2]. Further, the law states that “no...article or thing designed or intended for the prevention of conception or procuring abortion” should be created, received, distributed, or possessed in any way [2]. The vague language and variety of banned materials made the Act extraordinarily broad. “Targeted acts could include ‘writing a letter to somebody asking them for a date if they weren’t married’” and “even married couples using birth control could technically be given prison time” [8]. Even materials and texts used for sex education could be included under this ban [8]. Overall, the Comstock Act lent itself to a significant amount of interpretation. Margaret Sanger was an activist and the founder of Planned Parenthood. In 1914, she started an educational women’s health newsletter. However, she intended to mail her materials and was indicted for violating the Comstock Act [8]. Sanger later claimed that “‘the post office was, primarily, a mechanical institution, not an ethical one, whose business was efficiency, not religion or morality’” [8]. Other arguments opposing the Act stated that “people were still having sex despite societal expectations and that restricting access to birth control was damaging to women. The law prevented women from learning about their health and options” [1]. On the other hand, “supporters of the law argued that access to information and tools connected to birth control encouraged young people to have sex before marriage and condoned extramarital sex” [1]. These particular arguments are still made today regarding what schools across the country teach youth about sexual health.

While the Comstock Act sparked great debate when it was initially passed, its effect lost traction progressively over time. For most of the past one hundred years, the Comstock Act was rarely enforced. Also acting to diminish its power were numerous federal court decisions that sought to remedy the antiquated provisions [6]. Further, the early 1900s brought significant change that conflicted with the Comstock Act: “Women gained the right to vote in 1920, the Great Depression created an economic need for family planning, and large companies that made contraceptives began to gain more political influence” [6]. By the mid-1900s, the Act’s relevance had faded and it was essentially meaningless. Finally, in 1965, the landmark Griswold v. Connecticut case put an end to the Comstock Act when the Supreme Court ruled that a person’s right to privacy includes their right to unrestricted access to birth control. Since it was Griswold v. Connecticut that put an end to the Comstock Act and Roe v. Wade that established an expansion to that precedent involving abortion agency, it becomes apparent why the recent reversal by way of the Dobbs v. Jackson Women’s Health Organization case has revived Comstock’s legacy.

The Dobbs v. Jackson Women’s Health Organization (2022) case overturned Roe v. Wade, taking away the constitutional right to abortion and leaving abortion regulation up to the discretion of individual states. This step back in terms of abortion agency has revived the Comstock Act’s policing of “obscene” and “immoral” material. “As the New York Times reported in May, ‘Comstock is back, once more being wielded as a weapon by social conservatives. Their arguments use the language of the act to target the mailing of abortion pills, and they are pushing judges and the Biden administration to reopen seemingly long-settled questions’” [8]. Anti-abortion activists are using the Comstock Act in an effort to criminalize mailing abortion medication [6].

What anti-abortion advocates are specifically seeking to block based on the logic of the Comstock Act is the ability to mail mifepristone. Mifepristone is a drug that blocks progesterone which is the hormone needed for a pregnancy to continue [7]. It is commonly used within the first 10 weeks of pregnancy to perform abortions and is used in more than half of all abortions carried out in the U.S. [5]. Extreme regulation of mifepristone is already underway in the wake of Dobbs v. Jackson, guided by the ghost of the Comstock Act.

Currently there is a high-profile lawsuit that intends to stop access to abortion pills and drugs like mifepristone [6]. Not long ago, in April of 2023, the anti-abortion pill lawsuit received a preliminary ruling by District Judge Matthew Kacsmaryk. Judge Kacsmaryk agreed with the plaintiffs and agreed that the Comstock Act prohibits mailing abortion pills [6]. The case was heard at an appellate court later on, and while parts of Judge Kacsmaryk’s ruling were stricken, the court held that “the Comstock Act would be violated ‘merely by knowingly making use of the mail for a prohibited abortion item’” [6]. Back in December of 2022 the Justice Department stated that “abortion-causing drugs could be sent by mail if the sender did not intend for the recipient to use them unlawfully,” a precedent that has been contradicted by the appellate court’s ruling [6].

Considering that the Comstock Act was created based on personal opinions regarding morality and that it used such ill-defined and expansive language, its new application today is controversial and will likely have severe impacts on our political and legal climate. The sweeping nature of the Act lends itself to massive implications. Firstly, preventing access to mifepristone wouldn’t just impact abortions, but also women having miscarriages who need safe medical treatment [8]. This demonstrates how dangerous such an expansive ban would be towards all people who can get pregnant, even those who aren’t seeking abortions. While current movements are primarily focusing on blocking the distribution of mifepristone, Comstock Act provisions allow for the prohibition of much more. Drexel University law professor David Cohen explains that “the Comstock Act does not only refer to drugs...but also to anything used for an abortion...like surgical gloves and medical instruments” [6]. Professor Cohen highlights the fact that all of the basic supplies that doctors use are delivered by mail, FedEx, UPS and other similar services, and he warns that “if you can’t mail anything that’s used to induce an abortion, it would end abortion nationwide” [6]. Using Comstock’s ideas of obscenity and immorality to attack access to so many health care supplies would have extreme implications, even for states who have maintained more lenient abortion control laws since the Dobbs v. Jackson ruling.

The massive abortion debate we’ve been experiencing during recent years is influenced by legislature created over a century ago. That antiquated legislature–widely considered to be conservative, even in the late 1800s–came from personal ideas regarding the meaning of obscenity following thousands of years of tautological development. Anthony Comstock lobbied enough to have his personal opinions about morality and obscenity passed into American law. Since he was so concerned with controlling the materials available to citizens, his Act centered around what is known as the politics of visibility. By deeming certain things obscene, Comstock intended to make them “invisible.”

Comstock’s process raises many complex questions. Why do people consider certain things obscene? What is the real danger of obscenity? Is there a way to define the obscene without moral biases? Does morality have a place in lawmaking, and if so, in what way? Not a single one of these questions is easily answered. As the U.S. continues to see how the law responds to new arguments drawn from the Comstock Act, it is possible that people will come to some of their own conclusions to these questions. Following various cases as this issue progresses will tell us if the potential danger of resurrecting the Comstock Act is threatening enough to put it to rest again, or if its implications will be something people experience firsthand.

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[1] Boomer, Lee. “Comstock Act.” Women & the American Story, 4 Apr. 2023, wams.nyhistory.org/industry-and-empire/fighting-for-equality/comstock-act/.

[2] “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875.” American Memory, memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=017%2Fllsl017.db&recNum=0639. Accessed 19 Nov. 2023.

[3] Kendall. “What Are the Comstock Laws?” Planned Parenthood, Planned Parenthood, 12 May 2023, www.plannedparenthood.org/blog/what-are-the-comstock-laws.

[4] Latin Dictionary Headword Search Results, Perseus, www.perseus.tufts.edu/hopper/resolveform?redirect=true&lang=Latin. Accessed 19 Nov. 2023.

[5] Perrone, Matthew. “What Does the Comstock Act, a Law from the 1870s, Have to Do with Abortion Pills?” PBS, Public Broadcasting Service, 8 Apr. 2023, www.pbs.org/newshour/politics/what-does-comstock-act-a-law-from-the-1870s-have-to-do-with-abortion-pills#:~:text=Dormant%20for%20a%20half%2Dcentury,than%20half%20of%20U.S.%20abortions.

[6] Ploeg, Luke Vander, and Pam Belluck. “What to Know About the Comstock Act.” The New York Times, The New York Times, 16 May 2023, https://www.nytimes.com/2023/05/16/us/comstock-act-1978-abortion-pill.html.

[7] “Questions and Answers on Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation.” U.S. Food and Drug Administration, FDA, 1 Sept. 2023, www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation#:~:text=Mifepristone%20is%20a%20drug%20that,of%20the%20last%20menstrual%20period.

[8] Wexler, Ellen. “The 150-Year-Old Comstock Act Could Transform the Abortion Debate.” Smithsonian Magazine, Smithsonian Institution, 15 June 2023, www.smithsonianmag.com/history/comstock-act-transform-abortion-debate-180982363/.

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newyorkprelawland-blog · 6 months

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House vs. NCAA Could Mean 1.4 billion Payout for D1 Athletes

By Elina Natarajan, Cornell University Class of 2026

November 13, 2023

Going back to the year 2020, Grant House who swam for Arizona State filed a lawsuit against the NCAA. Arizona State is one of the fastest swim programs in the country, and Grant House was one of their fastest swimmers, therefore, he could have made some real money off of NIL deals had he been given the opportunity. That is the basis of the original lawsuit that Grant House filed against the NCCA. He claimed that he was stripped of the revenue that he could have created had the rules been different for all of his years of eligibility. After the original form of this lawsuit was filed the NCAA changed its rules to allow athletes to create revenue from their name image and likeness [5]. This rule means that athletes can use their name image and likeness to create revenue [5] This was a monumental shift in the NCAA rules, and it allowed for thousands of athletes to be able to capitalize on the skills that they possess. However, this did not make the House v NCAA case go away, but rather it shifted form [1].

The lawsuit then brought in other famous Division One athletes as plaintiffs, including Sedona Prince who was previously a women's basketball player for Oregon, and now plays for TCU, and former Illinois football player Tymir Oliver [1][2]. The three athletes argued that they were entitled to back pay for the years that the NCAA rules disallowed them to profit from their NIL. The precedent for this case that they are using is the Sherman’s Anti-Trust Act from 1890 [2]. This was the first federal act that outlawed monopolistic business practices [4]. The athletes claim that since the NCAA is a monopoly, the restrictions they place on athletes to create their own revenue or have a percentage of the revenue they create is a violation of this precedent. Since adding these two other plaintiffs to the case, in the past week, there has been serious development that greatly sides with the athletes in this lawsuit.

This past Friday, the three athletes stood in the California court in front of Judge Claudia Wilken and asked to be granted certification to be a class action lawsuit [2]. The NCAA greatly protested the wishes to become a class action as that makes the settlement or potential payout in court substantially larger. The argument that the NCAA presented to Judge Wilken is that “There are substantial differences in the athlete's NIL worth”[2]. However, Judge Wilkens was not very interested in that part of the testimony. Rather was very in tune with the proposal of the athlete's attorneys. They requested that they be granted a class action certification if they divided the division one athlete population into three groups[1]. The first group was men's basketball and men's football. The second group is women's basketball. Thirdly would be a group that represents the rest of the Division One athletes. The reasoning behind the division of the groups is how they feel they are losing money due to the restrictions that the NCAA is putting on their ability to create revenue. They feel that they are losing money in three ways. First is restrictions on NILs and the money that they lost prior to the new rules. Secondly, they feel they were losing money by not having rights to video game deals. Thirdly what the court sees as the most important area is how the athletes have no rights to revenues from broadcasting. The way that these areas of loss are connected to the three categories of athletes, is how these athletes experience financial loss. The attorneys of the plaintiffs argue that men's basketball and football lose revenue in all three categories, women's basketball loses revenue in NIL deals and broadcasting, and all other athletes lose income from restrictions on NIL deals[1].

There was evidence that was presented by both sides to Judge Wilkens. The most riveting piece of evidence that was submitted in this hearing was that the entirety of the current student-athletes ’ NILs does not even equal 10% of what the conferences collect as revenue for broadcasting [3]. The athletes were appalled at this statistic that was reported, as they are the ones who are being broadcasted and they have absolutely no right to the revenue that is created. The NCAA tried to get the report with that statistic struck from the record, however, Judge Wilkens denied that request and claimed that it was a crucial piece of information. This led to Judge Wilkens granting the plaintiffs the class action certification that they were requesting [3[. This means that the three plaintiffs now represent all Division One athletes currently, and even athletes who are no longer competing. This is approximately 15,000 athletes that now have a stake in this court case. If the NCAA loses, they are looking at a 1.4-billion-dollar payout [3].

Many people look at a case like this and see that the NCAA is a large monopoly power and is unlikely to lose a case of this kind, as there have been many before. However, some things make this case different which gives these plaintiffs a chance at forcing the NCAA into either a settlement or into court where they have a strong chance of winning. The first and most important is that Judge Wilkens is the judge for this case, and she has previously indicated and demonstrated that she is not a fan of the practices of the NCAA. While Judges are to remain impartial, there is no denying that a judge's history of how they rule is not imperative in deciding whether to settle or fight something out in court. Judge Wilkens has previously sided against the NCAA both times she heard a case with the NCAA as the defendant. The first was with O’Bannon v NCAA and the second was with Alston v. NCAA [2]. This history of siding against the NCAA and the fact that she shut down the NCAA request to strike the report from the record is good news for the plaintiffs. Currently, this court case is scheduled to go to trial in January 2025, however, all news indicates that there is a great chance that the NCAA settles before that time.

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“Bringing down the House: House v. NCAA Could Potentially Mean Big Changes for Collegiate Nil Rules.” JD Supra, www.jdsupra.com/legalnews/bringing-down-the-house-house-v-ncaa-2466293/. Accessed 10 Nov. 2023.

How House v. NCAA Could Change the Landscape of College Sports, www.si.com/college/gonzaga/basketball/how-house-v-ncaa-could-change-the-landscape-of-college-sports. Accessed 11 Nov. 2023.

“Athletes granted class action certification in antitrust case vs the NCAA” https://www.espn.com/college-sports/story/_/id/38813620/athletes-granted-class-certification-antitrust-case-vs-ncaa +. Accessed 10 Nov. 2023.

“Sherman Anti-Trust Act (1890).” National Archives and Records Administration, National Archives and Records Administration, www.archives.gov/milestone-documents/sherman-anti-trust-act. Accessed 10 Nov. 2023.

“What Is Nil? NCAA Rule Explained.” NCSA College Recruiting, 2 Oct. 2023, www.ncsasports.org/name-image-likeness.

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newyorkprelawland-blog · 6 months

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New Louisiana Law Illustrates a Changing Relationship Between Religion and Government

By Kensington Jones, New York University Class of 2025

November 4, 2023

To say that the US and religion have an interesting relationship would be an understatement. As evident by previous legal decisions, the relationship between the US and religion is a constantly evolving one and has changed quite significantly over the past decades. This evolution may be due to a change in societal values. However, due to these changes, a new law in Louisiana that requires instruction on the phrase “In God We Trust” has come under scrutiny and debate. Is such a phrase allowed to be taught in school? If this law is admissible, can other forms of religious symbols or expressions also now be taught in schools? These are just a few of the questions many may start to find themselves asking due to the US’s ever changing relationship with religion. It is possible that evolving societal values have influenced judicial decisions on cases related to the presence of religion in public spaces— leading to the status of laws such as Louisiana's to come into question.

The phrase “In God We Trust” has a complicated history. There have been famous figures throughout history who have opposed the phrase’s printing on currency, such as President Theodore Roosevelt. Yet, despite some pressures against the phrase, “In God We Trust” became the national motto decades later during the Cold War. Legal challenges to the motto failed in court due to the reasoning that displaying the phrase is simply a cultural practice [1]. Thus comes the new Louisiana law today. The Louisiana law, House Bill 8, requires the “display of the national motto, ‘In God We Trust’, in every public elementary, secondary, and postsecondary education classroom [2].” Following the logic of previous court cases, one would assume that this law would be acceptable because, as stated previously, the courts would likely view this as a cultural practice. However, critics of the law argue that this extends beyond merely being a cultural practice. Many have criticized it as a form of religious coercion. Because school is mandatory and teachers are required to give instruction on the motto, opponents of the law reason that students are a “captive audience.” However, there is no requirement of students to participate in any type of religious exercise concerning the motto [1]. If lessons on this motto are genuinely non-religious, overturning this law might prove challenging, considering the courts will most likely view displaying the motto as simply a “cultural practice.”

Something worth noting is that this new law’s constitutionality most likely would have immediately been called into question by the courts and not just citizens just a few decades ago. However, because there has been somewhat of an evolution in response from the court in regards to the establishment clause, the new Louisiana law may be put into effect without problem. The establishment clause is as follows:

[3]The establishment clause from the First Amendment

Essentially, the establishment clause draws a line between government and religion. Thus, according to the establishment clause, there should be a clear separation between religion and public schools. While some court cases have certainly made this separation stronger, some have also somewhat blurred the line between government and religion. For example, court cases such as Engel v. Vitale, Lemon v. Kurtzman, and Stone v. Graham have all strengthened the establishment clause in regard to schools [5]. However, the most recent 2022 Kennedy v. Bremerton School District case seemed to have weakened it [4]. Rulings on previous and influential court cases may very well be an indication of how successful a challenge to the Louisiana law may be. If the most recent court case involving school and religion serves as any indication, the law may be safe.

However, this issue may not be as straightforward as one would presume. It is important to note the many societal pressures and attitudes toward the relationship between religion and school may influence judicial decisions and, subsequently, influence the Louisiana law. A case in Texas accurately depicts this phenomenon. In 2021, Texas passed Senate Bill 797, which essentially mirrors the new Louisiana law, mandating public schools to display any sign donated containing the phrase “In God We Trust [6].” However, a noteworthy development related to this law emerged last year, sparking considerable controversy. In 2022, a parent in Texas donated signs with part of the phrase being rainbow-colored and signs with the motto written in Arabic.

[7]Depictions of the donated sign

Both versions of the sign were rejected despite containing the phrase. This controversial issue reflects how cultural views heavily impact what is admissible in the public’s eye. While religious messaging may have become more tolerable in Texas, it could be the case that LGBTQIA+ messaging still remains controversial. The argument can thus be made that these cultural views may also be impacting judicial decisions and serves as explanation as to why we see a weakening of the separation between government and religion.

While it is also important to note the political ideologies and personal biases of the people making these decisions, it is also vital to ask the question: to what extent have societal changes and thus new cultural views impacted the separation of government and religion? The way in which the establishment clause is now interpreted most likely spells out the safety for both Texas’s Senate Bill 787 and Lousiana’s House Bill 8.

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[1]https://theconversation.com/louisianas-in-god-we-trust-law-tests-limits-of-religion-in-public-schools-210095

[2]https://legis.la.gov/legis/BillInfo.aspx?i=243813

[3]https://www.archives.gov/founding-docs/bill-of-rights-transcript

[4]https://www.oyez.org/cases/2021/21-418

[5]https://www.oyez.org/cases/1980/80-321

[6]https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00797F.pdf

[7]https://twitter.com/stevanzetti/status/1564310057780740098

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newyorkprelawland-blog · 6 months

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Unlocking Second Chances: Addressing the Challenges of Ex-Offender Re-Entry

By Amy Zhang, New York University Class of 2024

November 2, 2023

Re-entry itself is a process, but the issue that’s associated with it, especially in the United States, has to do with mass incarceration, which I’ll talk about later. But as we all know, after an offender is released from prison, their criminal record stays with them. This criminal record is a problem because it prevents all kinds of people from certain fundamentals such as jobs, housing, and educational opportunities.

Nevertheless, the general thought that individuals with criminal histories tend to work less efficiently than those who spent years in the workforce is reasonable. However, it acknowledged that nowadays people change jobs constantly: one could become a brilliant businessman with a former career as an English teacher in high school -- the famous story of Ma Yun, one of the most successful entrepreneurs in China -- in truth, this kind of drastic shift in career has proven to be quite common in the current society. People can enter a career without knowing anything about it and they can survive in the industry. A similar concept applies to incarcerated individuals who thrill for a job opportunity as well. Thus, we have to admit the common ground that one’s capacity to work is not limited just because he or she has spent several years in prison. In this case, as they can still work and learn to master a skill, what reasons do we have to prevent them from relishing the equal opportunity of employment?

In fact, when you put it into a deeper thought, does a completely innocent person really exist? Have you ever stolen something in childhood? Have you lied before? Have you ever simulated your parents’ signature to sign the school academic performance report? I would not dare to say that I’m 100% innocent. We all have done something bad. What varies is the degree of the severity of the things we committed.

While talking about violations or misdemeanors, frankly speaking, it is more of a matter of getting caught or not. At the first hand, it is essential to know about the flaws in the U.S. criminal justice system. For small cases such as theft, there is probably not going to be an investigation since the cost of all that labor is considered unworthwhile. Instead of insisting on your innocence and finally pulling justice to your side, which is the classic plot that TV shows like to play around, what will be more likely to happen in reality is that you, exhausted already by the waiting time, accept the prosecutor’s deal and plead guilty. In this way, you might only need to sit in jail for ten days, much shorter in comparison to the time you would have spent in jail if you were innocent, and the only expense is a convicted record of theft. It is definitely frustrating that the system is never perfect, but as soon as we understand this is what will happen in the real world, we should change our bias toward those with a convicted record. In small cases, sometimes a record means nothing more than bad luck and does not necessarily prove that the person is dangerous. One word or one vague testimony can ruin another person’s life and it happens. One way to prevent these horrible things from happening is to offer those with records equal opportunity in the process of finding a job.

Then, when the behavior gets worse enough to reach the level of crime, we have stepped one stair further reaching the stage of felony such as manslaughter. Those are people who have spent even twenty-ish years in jail and have committed really severe crimes. Should they be given opportunities as well? Too often we talked about how virtuous it is while willing to offer someone a second chance. Those people, though might have done something wrong before or might never have done the crime they were convicted of, deserve a second chance because after being released and going back to society they are part of our community. Their punishment has been done in the prison and now they are coming out of jail like a clean slate. Why can’t they get a chance to restart their life given the condition that part of their life span has been wasted in prison?

As a general knowledge, voting is an accessible right to all citizens of the United States, regardless of their color, race, or gender. The Florida mayor passed a bill that allowed felons to vote, so long as they paid a type of fee to the court.[1] Of course, many argue that this goes against the 24th Amendment, which prohibits Congress and the states from enforcing poll taxes. Though this doesn’t necessarily tie in with re-entry, it gives felons more opportunities while imprisoned, paving a wider path for them when released.

As earlier mentioned, housing becomes another issue for the formerly incarcerated, as the screening system of the United States greatly looks down upon past felons. One bill, revealed on July 10, is being worked on to lift some restrictions on federal housing for ex-offenders.[2] Under current law, ex-offenders can be rejected if they are convinced of a crime, no matter how minor. What the new bill proposes is a ban on denying an ex-offender housing based on one past incident related to crime, and instead having a full evaluation by the authorities. It would also remove a policy that allows an entire household to be evicted as a result of the criminal record held by one resident/guest.

Ex-convicts’ Rights

The formerly incarcerated may be returned to their freedom, but it may take years to fully reclaim their life. A handful of issues that former offenders face is that “they are not allowed to vote, have little access to education, face scant job opportunities, and are ineligible for public benefits, public housing and student loans”, as explained by The Leadership Conference on Civil & Human Rights organization (The Leadership Conference on Civil & Human Rights[3]). Is this considered freedom? Is it fair? Said issues and factors also contribute to high percentages of re-arrest, and re-incarceration. If they can’t start a life, what’s preventing them from repeatedly breaking the law to try and cheat their way into one?

Former offenders, no matter what crimes they’ve committed, remain human, and should still be given the opportunity to fully live and experience life, having already faced their sentences in jail. Said opportunity, amongst job/educational benefits, additionally includes not being discriminated against in the workplace.

In the United States, only 12% of companies hire former offenders, which increases the rate of unemployment as approximately 70 million Americans have a criminal record.[4] If the formerly incarcerated eventually do find a job, they typically receive 11% less money than someone without a criminal record. The monetary discrimination against formerly incarcerated people, relating to their lost earnings, ranges from 10-40%.5 The aforementioned statistics alone have been calculated without the discrimination of race or gender, which, when added to the factors, would drastically tip the scale towards a more detrimental financial end.

To reiterate, the formerly incarcerated are still human, and though they have made mistakes, they should be treated equally amongst others. They should be allowed to enter society, not just with a chance at work, but a chance to rebuild themselves with self-respect.

Effect on Economics

Though there are many negative effects of having unemployed people in society, it mostly affects the economic state of the country. We are perpetuating ourselves in not being productive. Formerly convicted people, who have been freed, usually do not get an opportunity to work; this causes these people to be unemployed. They are considered a “burden” to society because they depend on the government.

People who work lose income. The government loses production. At this rate, this would bring poverty, therefore, affecting the population. This leads to higher payments from both the federal and state governments. This is all for alimentary assistance and Medicaid. This leads to them collecting a different amount of income tax. Therefore, they are forced to borrow money. By judging 100% of the population of ex-convicts by stigma, we take away the opportunity to have people with talents that can be positive for society. People that can be influential in a positive way, and actually help the economic state of the country. By contracting these people into workplaces, not only do the unemployment rates go down, and homelessness goes down.

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[1] https://www.cbsnews.com/news/amendment-4-florida-felony-voting-rights-60-minutes-2020-09-27/

[2]https://www.hud.gov/sites/dfiles/FHEO/documents/Implementation%20of%20OGC%20Guidance%20on%20Application%20of%20FHA%20Standards%20to%20the%20Use%20of%20Criminal%20Records%20-%20June%2010%202022.pdf

[3] https://civilrights.org/

[4] https://www.livingwage-sf.org/mass-incarceration/discrimination-against-formerly-incarcerated-people/

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newyorkprelawland-blog · 6 months

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The Intersection of Governance and Social Media; Murthy v. Missouri

By Kenzie Davidson, New York University Class of 2024

October 30, 2023

Last Friday, October 20, 2023, the Supreme Court lifted the restrictions previously imposed by lower courts in order to limit the communication methods that the Biden administration has used to “encourage” social media companies to control the material their platforms allow in an effort to reduce misinformation following extreme political polarization regarding the validity of U.S. elections and Covid 19 [2]. Last week, justices agreed to hear the administration’s appeal for this case which will “set the stage for a major test of the role of the First Amendment in the internet era” [4] and drastically impact the way our legal system views the boundaries between censorship and constitutionally protected speech regarding misinformation.

The Murthy v. Missouri case is one of many when it comes to recent legal processes pitting free speech against content moderation on the internet and various social media platforms. In recent years, national and global events have spurred significant media coverage and battles between political parties over what to believe. Liberals have largely felt that social media platforms have been amplifying misinformation about vaccines, public health impacts of Covid 19, and election fraud while conservatives have also spoken up, accusing additional platforms of censoring their own views. This political climate has prompted significant questions regarding the intersection between speech, law, government intervention, and social media.

Earlier, in July 2023, U.S. District Judge Terry Doughty of Louisiana issued a preliminary injunction against the Biden administration [2]. Doughty was appointed by former President Donald Trump and he claimed that his lawsuit is targeting what could be “the most massive attack against free speech in United States’ history’” [4]. The judge felt that the plaintiffs were likely to succeed with their claim which was that “the government helped suppress ‘disfavored conservative speech’ by suppressing views on mask-wearing, lockdowns, and vaccines intended as public health measures during the pandemic or that questioned the validity of the 2020 election” [2].

The injunction, as proposed by Judge Doughty, barred numerous government officials from communicating with social media platforms regarding content moderation. On September 8, 2023, the Fifth U.S. Circuit Court of Appeals in New Orleans narrowed the previous order. The Court of Appeals felt that Doughty’s terms were sweeping and could limit legal speech so a revised injunction was drafted. However, it affirmed that “the White House, Office of the Surgeon General, FBI, and CDC has ‘coerced or significantly encouraged’ the platforms, transforming decisions by those companies into ‘state action’ in violation of the First Amendment” [2].

While the lower courts did find the communication methods between the White House and tech companies regarding controlling the information presented to the public to be overstepping the bounds of free speech protection as defined in the first Amendment, the ruling on October 20th states that the Supreme Court will stay the injunction as of now and hear arguments from both sides of the case in the Spring of 2024. The Court also ruled that the communication practices between the White House and tech companies need not be prohibited until the case it heard and decided next year [2]. This was a significant success for the Biden administration as they sought to block the injunction due to concerns that it would interfere with how thousands of officials in the White House, FBI, and health sectors address security and public health concerns with the nation [2]. The Court agreeing to hear the administration’s appeal is very important since it tees up a major ruling regarding how far the government is allowed to encourage platforms to delete alleged misinformation [4].

During the previous hearing, Solicitor General Elizabeth B. Prelogar was asking the Supreme Court to act against the injunction, claiming that “a central dimension of presidential power is the use of the office’s bully pulpit to seek to persuade Americans – and American companies – to act in ways that the president believed would advance the public interest” [4]. The Justice Department added that Biden’s closes aides were “entitled to use the presidential bully pulpit to convince companies to act in ways to advance the public interest, and that there is a ‘fundamental distinction between persuasion and coercion’” [4]. The opposition also views the distinction between persuasion and coercion as highly important, but disagrees with the interpretation of the Solicitor General and Justice Department; Attorneys General of Missouri and Louisiana responded by claiming that the Biden administration had crossed a constitutional line (the First Amendment’s free speech protection) and that “’the bully pulpit is not a pulpit to bully’” [4].

In the case that was decided last week, the government was engaging a writ of certiorari and seeking a stay of the injunction. A writ of certiorari is the primary means to petition the Supreme Court for review; in this case, the government was requesting that the Supreme Court order a lower court to send up this case’s record for additional review, establishing that the lower courts’ holdings would not be final. The majority ruled in favor of the government, but there were three Justices who did not agree with the holding.

Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch publicly dissented from the decision of the majority. The dissent was written by Justice Alito. Simply put, the dissenting justices claimed that “government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing” [1]. The dissent focuses greatly on the standards for granting a writ of certiorari as well as the ruling of the lower courts. Firstly, “the Court of Appeals found that ‘the district court was correct in its assessment – ‘unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens’” [1]. The dissent also stated that when applying the test used to determine if a stay is granted or not, the government’s application should be denied. To support this standard, Justice Alito cited Hollingsworth v. Perry (2010) (per curiam) which stated that a stay can only be granted if the applicant shows “’a likelihood that irreparable harm will result from the denial of a stay’” [1] and from Winter v. Natural Resources Defense Council, Inc., (2008) which stated that “a stay is an ‘extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief’” [1]. Justices Alito, Thomas, and Gorsuch did not feel that the government’s attempts to show irreparable harm were unsatisfactory and only hypothetical in this case. They were also concerned that the ruling permitted further violations against the free speech protection from our Constitution: “Despite the Government’s conspicuous failure to establish a threat of irreparable harm, the majority stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified” [1].

The First Amendment of the U.S. Constitution protects free speech and expression; it is highly important in terms of this case because it is the basis for deciding what people can post or advertise on media platforms and well as how, when, where, and about what the government officials choose to communicate with tech companies. A significant piece of the speech debate involves the distinction between persuasion and coercion. To persuade is “to move by argument, entreaty, or expostulation to a belief, position, or course of action; to plead with” [6]. Expostulation is “to reason earnestly with a person for purposes of dissuasion or remonstrance” [6]. However, to coerce is “to compel to an act or choice; to achieve by force or threat; to restrain or dominate by force” [6]. There appears to be a simple difference between the two terms, but it is not always as clear as it needs to be in the eyes of the law.

One past case sheds light on the persuasion versus coercion issue. It is not a government speech case, however, but rather an employer speech case. In the 1969 case NLRB v. Gissel Packing Co., the Court reaffirmed that the First Amendment grants employers the right to speak to their employees about the possible costs of unionization, the First Amendment does not grant employers the right to threaten employees with reprisals for unionizing, and that when attempting to draw a line between those two possibilities, it is necessary to consider the employer’s power to fire employees [5]. The holding in this case creates a distinction between persuasion and coercion in the first two takeaways but highlights a third and very important factor; the Court considers employers’ and unions’ power over employees in deciding whether a statement is unduly coercive. The consideration of “power over employees” could be crucial in Murthy v. Missouri. If persuasion is okay but coercion isn’t, and if either side isn’t able to convince the Court that one form of communication was taken over the other, this case sets the precedent that the power dynamic between the communicator and the receiver needs to be taken into account. If coercion is not easily proven, it could be argued that the fact that the White House is suggesting that large social media platforms behave a certain way, a suggestion coming from a position of significant power, tech companies may feel forced to comply even if the original communication itself wasn’t blatantly coercive.

While this ongoing case will not be heard again by the Supreme Court until next Spring, with a ruling expected by the end of June, it is not the only case presenting questions about the intersection of free speech and technology that is on the docket. Recently, the Court also agreed to hear a case that questions whether the Constitution allows Florida and Texas to prevent large scale social media companies from removing posts based on views they express [4]. Both sides will present arguments in this case within the next month. The ruling in this case may play a significant role in the result of the case against the Biden administration because the Court will have previously ruled on one or more cases regarding social media practices and First Amendment violations.

The development of Murthy v. Missouri, the case that will go forth to the Supreme Court next year, and the various cases on the docket regarding First Amendment rights and social media platforms exhibit a trend. Media plays a massive role in our lives today, and our freedom of speech is a right that is so central to this nation’s identity. The intersection between governance and social media is extremely complex and it is very likely that we will see more cases like this in the future.

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[1] Alito. “Vivek H. Murthy, Surgeon General, Et Al. v. Missouri, Et Al. .” Supreme Court of the United States, 20 Oct. 2023, www.supremecourt.gov/opinions/23pdf/23a243_7l48.pdf.

[2] Chung, Andrew. “US Supreme Court Blocks Order Curbing Biden Administration Social Media ...” Reuters, 20 Oct. 2023, www.reuters.com/legal/us-supreme-court-blocks-order-curbing-biden-administration-social-media-contacts-2023-10-20/.

[3] Kern, Rebecca, et al. “Dozens of States Sue Meta over Addictive Features Harming Kids.” POLITICO, 24 Oct. 2023, www.politico.com/news/2023/10/24/states-sue-meta-addictive-features-kids-00123217.

[4] Liptak, Adam. “Supreme Court Lifts Limits for Now on Biden Officials’ Contacts with Tech Platforms.” The New York Times, The New York Times, 20 Oct. 2023, www.nytimes.com/2023/10/20/us/supreme-court-social-media-biden.html#:~:text=The%20Supreme%20Court%20on%20Friday,had%20severely%20limited%20such%20interactions.

[5] “National Labor Relations Board v. Gissel Packing Co., Inc., Et Al. - Supreme Court 1969.” Google Scholar, scholar.google.com/scholar_case?case=11692165051185764542. Accessed 27 Oct. 2023.

[6] “America’s Most Trusted Dictionary.” Merriam-Webster, Merriam-Webster, www.merriam-webster.com/. Accessed 27 Oct. 2023.

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Cancel Culture. Is it Infringing on Cornell Employee's First Amendment Rights?

By Elina Natarajan, Cornell University Class of 2026

October 30, 2023

The First Amendment of the United States Constitution protects individuals' rights to freedom of speech. However, there is a large sum of controversy regarding if people can be punished for the words that they say in their professions. This falls under the concept of “cancel culture” which is starting to become mainstream in American culture. The country is very divided on this, according to Pew Research Center they published an article about this very topic that sums up the separate sides accurately. The title of the article is “Americans and ‘Cancel Culture’: Where Some See Calls for Accountability, Others See Censorship, Punishment.” Public discourse has always been a crucial part of American culture, as the foundation of our nation was built upon the principle of freedom. Now more than ever it is easier for people to be held accountable for the words that they say, and for people to gather other people to “cancel” someone. The current debate is whether this “cancel culture” infringes on people’s freedom of speech as people are being fired because of their speech

In the past week at Cornell University, there has been an incident of this nature. The Israel and Palestine conflict has left Cornell students frustrated with the way that the university has handled this matter. President Pollok sent an initial email to the student body, where she failed to condemn Hamas for their terrorist attacks against Israel. The result of this was protests and hate emails directed at the president for her lack of response. This resulted in a follow-up email to the students apologizing for her actions. This is a prime example of what a student body can do when they band together for a common goal. However, things started to take a drastic turn when this desire to cancel someone was directed towards a Cornell professor who was expressing his freedom of speech.

Professor Rickford who taught a course on post-Civil African American history attended an off-campus rally where he spoke about the Israel-Palestine conflict. At this rally, Professor Rickford, “described the Hamas terrorist attacks as ‘exhilarating’.” [5] Students who were present at this rally were greatly upset by this quote from a distinguished Ivy League professor, and they decided to talk to the Internet about it [1]. A petition to get Professor Rickford fired was published on change.org and it received over 11,000 petitions [1]. The most intriguing part of this was how political figures aligned themselves with the mission to dismiss Professor Rickford. US Senator Kirsten Gillibrand (D-NY) and US Representative Claudia Tenney (R-NY) are both calling for the termination of the Cornell professor [5]. This has attracted national attention, bringing protesters to Ithaca, NY where individuals have been blocking off crosswalks and driving LED billboards sharing their desire for his dismissal through campus [1].

Professor Rickford is not going silently as he believes that his quote was greatly taken out of context. In his apology statement that he put out he stated, “I apologize for the horrible choice of words that I used in a portion of the speech that was intended to stress grassroots African American, Jewish, and Palestinian traditions of resistance to oppression.” [5]. Despite this Professor Rickford has been placed on a leave of absence until the completion of the semester and is awaiting further administrative procedures. This dismissal of this professor has sparked great controversy amongst Cornell’s campus and has created mass protests in support of reinstating Professor Rickford [4]. This entire controversy has introduced an interesting concept surrounding cancel culture and freedom of speech. Professor Rickford was attending an off-campus rally, and he was speaking his own opinion in ways that are protected by the First Amendment as there was no hate speech, and he was not actively encouraging violence [5]. Therefore, many believe that there is no justification for his dismissal as he was acting as a free citizen and not as a professor at Cornell. Freedom of speech is not a right that one relinquishes when accepting a position at an educational institution [2] [3]. Many universities across the country passionately believe that faculty have the right to freedom of speech, and do not believe that it is their position to restrict it. According to the policy of the University of Maryland, “faculty, as private citizens, enjoy the same First Amendment rights to speak as any private citizen.”

Many are saying that Cornell is violating the First Amendment rights that are granted to Professor Rickford in the Constitution. Additionally, the state is required to enforce the constitution and is prohibited from restricting rights granted to citizens under the constitution. This law means that public universities are prohibited from doing this as well, and Cornell is considered a public university as it is partly funded by New York state taxes [2]. Therefore, the debate is shifting to whether Cornell University is violating the constitutional rights of New York citizens. Furthermore, there is a need for a great legal conversation surrounding cancel culture and its relation to how people are being punished for their speech, which is protected by the constitution. Is there a place for restricting speech in educational institutions? This is a currently fierce debate that is now being held across the country as this is now a national controversy.

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[1] “11,899 People Signed and Won This Petition.” Change.Org, www.change.org/p/demand-cornell-university-to-terminate-associate-professor-russell-for-hate-speech?source_location=search. Accessed 27 Oct. 2023.

[2] “Academic Freedom and Free Speech.” Academic Freedom and Free Speech | The Office of Faculty Affairs, faculty.umd.edu/main/leadership-development/academic-freedom-and-free-speech#:~:text=Like%20all%20members%20of%20a,and%20forms%20of%20symbolic%20expression. Accessed 27 Oct. 2023.

[3] Know Your Rights: Free Speech Rights of Public School Teachers in California: ACLU of Northern Ca, www.aclunc.org/our-work/know-your-rights/know-your-rights-free-speech-rights-public-school-teachers-california#:~:text=As%20a%20public%20school%20teacher,a%20matter%20of%20public%20concern. Accessed 27 Oct. 2023.

[4] Reschini, Rodge. “Breaking: Rickford Takes Leave of Absence.” The Cornell Review, 21 Oct. 2023, www.thecornellreview.org/rickford-called-hamas-attacks-exhilarating-takes-leave/.

[5]Steinbuch, Yaron. “Cornell Professor Who Found Hamas Attack ‘exhilarating’ and ‘Energizing’ Now on Leave of Absence.” New York Post, New York Post, 25 Oct. 2023, nypost.com/2023/10/25/news/cornell-prof-who-found-hamas-attack-exhilarating-now-on-leave-of-absence/.

[6]Vogels, Emily A. “Americans and ‘Cancel Culture’: Where Some See Calls for Accountability, Others See Censorship, Punishment.” Pew Research Center: Internet, Science & Tech, Pew Research Center, 19 May 2021, www.pewresearch.org/internet/2021/05/19/americans-and-cancel-culture-where-some-see-calls-for-accountability-others-see-censorship-punishment/.

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Understanding the Current Migrant Crisis in New York City

By Jana Khanna, New York University Class of 2024

October 21, 2024

New York City, a historical melting pot of cultures and nationalities, has long been a destination for immigrants seeking a better life in the United States. While the city has welcomed tens of thousands of new arrivals annually, the year 2022 brought a notable surge in the number of migrants and asylum seekers making their way to the Big Apple. This surge, primarily comprising individuals from Latin America and the Caribbean, has strained the city's resources and prompted officials to declare a state of emergency. This article explores the scale of the current migrant crisis in New York City and delves into the regional factors driving this migration

Since spring 2022, over 118,000 migrants and asylum seekers have arrived in New York City after crossing the U.S.-Mexico border. While this influx is not unprecedented in historical terms, it has placed immense fiscal pressure on the city, costing over $1 billion thus far. The cost of housing these newcomers could exceed $4.3 billion by July 2024, though it represents less than 5 percent of New York City's budget for fiscal year 2022.

Moreover, legal services for asylum seekers are stretched thin, with a minimum six-month wait for a work permit. Many new arrivals struggle to find lawyers to aid in the asylum application process, or are already undergoing the process but unable to work legally.

In an announcement from Mayor Eric Adams office, it was revealed that shelter stays for migrant families with children will be limited to a 60-day duration. Migrant families currently residing in shelters will soon receive notices informing them of the new policy, with the expectation that they seek alternative housing solutions within the stipulated time frame. Alongside this time limit, the city will implement "intensified casework services" to assist families in their quest to secure new housing, as outlined in a recent news release.

Mayor Adams, who anticipates an expenditure of approximately $12 billion over the next three years to manage the surge of migrants, has already taken steps to mitigate overcrowding in the city's shelters. Last month, he restricted adult migrants to a 30-day stay in city-run facilities to address the pressing issue. Moreover, Adams is actively pursuing the suspension of a unique legal agreement that mandates New York City to provide emergency housing to homeless individuals, a provision distinct from those in other major U.S. cities. Mayor Adams recently embarked on a four-day trip through Latin America, commencing in Mexico, where he aimed to dissuade prospective migrants from seeking refuge in New York. During this visit, he emphasized that the city's shelter system has reached its capacity and its resources are stretched to the limit.

Several push factors from Latin America contribute to the surge of migrants heading north. Venezuela's economic implosion under President Nicolás Maduro has driven over seven million people to flee the country, while Haiti's ongoing troubles, including gang warfare, have led almost two million Haitians to seek refuge elsewhere. Cuba's deteriorating economy has prompted the outflow of one million migrants and refugees.

In addition to these crises, various factors such as inequality, hunger in parts of Mexico and Central America, surging criminal violence, and climate change-related disasters have contributed to the migration wave. The growth of businesses, both legal and illegal, that facilitate the movement of migrants across borders and increased awareness of U.S. labor shortages and wages on social media further drive migration.

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Council on Foreign Relations. (n.d.). Venezuela: The rise and fall of a petrostate. Council on Foreign Relations. https://www.cfr.org/backgrounder/venezuela-crisis

DonnellyWeissman Center for International Busines, F. (2020). New York’s Population and Migration Trends in the 2010s. Weissman Center for International Business. https://zicklin.baruch.cuny.edu/wp-content/uploads/sites/10/2020/09/Paper-Series-Fall-2020-9-8-20.pdf

Izaguirre, A. (2023, October 16). New York City to limit migrant families with children to 60-day shelter stays. PBS. https://www.pbs.org/newshour/politics/new-york-city-to-limit-migrant-families-with-children-to-60-day-shelter-stays

Sirtori-Cortina, D., & Saraiva, A. (2023, July 13). New York needs workers. asylum seekers are waiting on the sidelines.Bloomberg.com. https://www.bloomberg.com/news/articles/2023-07-13/new-york-needs-workers-asylum-seekers-are-waiting-on-the-sidelines

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New Launch of Overheating iPhones; Could Apple be Liable?

By Kenzie Davidson, New York University Class of 2024

October 16, 2023

September 22 of this year marked the highly anticipated release of Apple’s new iPhone 15, Pro, and Plus models. The tech giant’s products flew off the shelves as people sought to get their hands on the latest iPhone. Following the release, less than a week passed before a surge of reports made their way into the media claiming that the new phones were having serious overheating issues. Claims that the brand-new phones were becoming uncomfortably hot far too often became the primary topic of conversation, leaving behind the excitement over Apple’s new launch.

Apple was quick to respond to customers’ claims, issuing a report on September 30 and stating that the company was working to develop a software report to address the flawed products. A new high-end feature of the iPhone 15s is their redesigned titanium structure and aluminum frame. In Apple’s response to overheating claims, the company stated that these new materials were intended to make the phones easier to repair and that they are unrelated to the overheating issues of the new models [1]. Further, Apple has assured the public that there are no safety concerns regarding the iPhone 15s at present, and that customers are secure in using their phones while awaiting the update. There is still no clear timeline for when the software fix will be issued [2].

The abnormal overheating issues in the new phones, Apple claimed, was the result of a combination of iOS 17 issues, application bugs, and product acclimation sensitivity [1] :

Apple’s role as a leading international tech empire ensures that this isn’t the first time it has faced high-profile legal challenges. Since the creation of the company, Apple has managed many accusations, influxes of reports, and lawsuits; these obstacles, however, haven’t proven themselves to detrimentally impact Apple’s success long-term [1]. In 2010 the iPhone 4 was launched, initiating reports of a design flaw that led to calls being dropped [3]. Shortly after, in 2012, Apple CEO Tim Cook regrettably addressed problems with Apple Maps functionality in the new iPhone 5s [4]. Again, in 2014, what became known as “Bendgate” occurred as a result of criticism surrounding iPhone 6 models failing to maintain their structure under pressure [5].

Further, the surge of overheating iPhones since September has not been the only issue threatening legal challenges for Apple so far in 2023. Early in May of this year, Apple was confronted with a $2 billion lawsuit in the U.K. for “throttling” iPhones with software updates in an effort to hide defective batteries [6]. Justin Gutmann brought forth this lawsuit on behalf of U.K. iPhone users, claiming that “Apple concealed issues with batteries in certain phone models and ‘surreptitiously’ installed a power management tool which limited performance” [6]. Apple denied allegations of misleading its customers and called Gutmann’s lawsuit “’baseless’” [6], though the lawsuit is still underway.

Another lawsuit emerged against Apple just days after the iPhone 15 release. Presented in case No. 22-04172, Affinity Credit Union et al v Apple Inc, U.S. District Court, Northern District of California, Apple was ordered on September 27, 2023 to face a private antitrust lawsuit regarding allegations that Apple is inhibiting its users’ access to a variety of mobile wallets and allegedly coercing them into using the Apple Pay mobile wallet for all transactions rather than Android-based devices which provide agency in terms of choosing between different mobile wallets [7]. Apple is seeking a dismissal.

This history of the company demonstrates just some of the various ways in which Apple has been found liable or is facing liability. The aftermath of the iPhone 15 release has raised suspicion about Apple’s liability for the overheating iPhones or potentially the harm caused by malfunctioning devices. Apple’s distribution of the overheating devices, some devices even heating to the point of physical discomfort, introduces the possibility that the company could be liable for producing and selling products that are allegedly causing physical harm to customers.

At present, there have been no reports of severe bodily harm caused by the overheating phones. Apple was also responsive to the issue and presented a course of action to remedy the situation. When considering Apple’s legal history, the company’s management of this current issue, and the lack of extreme damage caused by the iPhone 15 models so far, there is reason to believe that Apple will not be found liable. However, Kif Leswing posited in an article for CNBC that because the phone defect has repeatedly been reported to cause discomfort and prevent extended use, this may provide grounds for lawsuits to be filed [1]. Adding substance to the possibility of lawsuits regarding the overheating iPhone 15s is a case from 2018 which similarly raises questions of Apple product safety.

On August 2, 2018, a man from South Carolina named Ronnie Portee filed a suit against Apple due to severe injuries he sustained after his iPhone 6 exploded two years prior [8]. In the original incident report made in 2016, Mr. Portee explained that he had been using his phone as usual before he plugged it into the charger that had been originally provided by Apple with his purchase of the phone. He then placed his phone in his pocket. Dickman Law Office cites the original court documents which state that after a short amount of time Mr. Portee claimed that he “experienced ‘extreme heat and felt ‘the crackling of the clothes on his body burning’” [8]. The battery of the phone had exploded which lit Mr. Portee’s clothing on fire. He was rushed to the hospital and it was reported that “his burns were so severe that he had to be airlifted to the nearest burn center and underwent several surgeries” [8]. One of the attorneys representing Mr. Portee, George T. Sink Jr., claimed that Apple was aware that the phone had a risk of exploding at the time it was put on the market and that “’the phone did not include a sufficient warning to inform users that the phone battery was overheating or of the extreme risk faced by its users’” [8]. Ronnie Portee is seeking $75,000 in the ongoing lawsuit.

If Sink Jr.’s claim that Apple had prior knowledge of the safety risks present in iPhone 6 models gets affirmed, this substantially strengthens Mr. Portee’s lawsuit and adds context for the current overheating iPhone predicament. The lawsuit Mr. Portee filed hinges on the existence, or lack thereof, of suitable and functional safety features in Apple devices in order to prevent overheating batteries. If Apple knew that the iPhone 6 models could threaten user safety, and if it were discovered that there was prior knowledge of the iPhone 15 overheating issues, this could certainly lead to increased liability for Apple because of its lack of transparency and efficacy regarding product safety measures. The 2018 case is important to consider because the repetition of safety issues in a product line can have serious consequences for both the company and its customers. If Apple doesn’t resolve this issue in a timely manner or if the damages caused by overheating phones get more serious the possibility of Apple being held liable will increase.

The success of Apple’s software update will play a major role in the likelihood of a lawsuit being filed against it. If the phones don’t cause more damage and it is apparent that the danger associated with the use of the iPhone does not ultimately outweigh its utility, Apple would face decreased chances of being found liable.

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[1] Kif Leswing. “Apple Will Issue a Software Update to Address iPhone 15 Overheating Complaints.” CNBC, CNBC, 30 Sept. 2023, www.cnbc.com/2023/09/30/apple-will-issue-a-software-update-to-address-iphone-15-overheating-complaints.html.

[2] Liedtke, Michael. “Apple Says It Will Fix Software Problems Blamed for Making iPhone 15 Models Too Hot to Handle.” AP News, AP News, 30 Sept. 2023, apnews.com/article/iphone-15-overheating-apple-software-bug-088fcf5250ee7e839930aea56dfed3fa).

[3] Helft, Miguel. “On New Iphone, a Mystery of Dropped Calls.” The New York Times, The New York Times, 24 June 2010, www.nytimes.com/2010/06/25/technology/25apple.html.

[4] Guglielmo, Connie. “Apple’s Apology over Maps Earns Praise, Criticism and ‘what Would Steve Jobs Do’ Second Guessing.” Forbes, Forbes Magazine, 28 Sept. 2012, www.forbes.com/sites/connieguglielmo/2012/09/28/apples-apology-over-maps-earns-praise-criticism-and-what-would-steve-jobs-do-second-guessing/?sh=50acd4637a81.

[5] Kelly, Gordon. “Apple Confirms It Knew about iPhone ‘Bendgate.’” Forbes, Forbes Magazine, 27 Sept. 2018, www.forbes.com/sites/gordonkelly/2018/05/24/apple-iphone-problem-iphone-6-iphone-6-plus-bend-touchscreen/?sh=3c6b697f115c%29.

[6] Tobin, Sam. “Apple Fights $2 Billion London Lawsuit for ‘throttling’ Millions of iPhones.” Reuters, Thomson Reuters, 2 May 2023, www.reuters.com/technology/apple-fights-2-bln-london-lawsuit-throttling-millions-iphones-2023-05-02/.

[7] Stempel, Jonathan. “Apple Is Ordered to Face Apple Pay Antitrust Lawsuit.” Reuters, Thomson Reuters, 27 Sept. 2023, www.reuters.com/legal/apple-is-ordered-face-apple-pay-antitrust-lawsuit-2023-09-27/#:~:text=European%20Union%20antitrust%20regulators%20accused,%2C%20No.%2022%2D04174.

[8] Admin. “Man Sues Apple for Exploding iPhone.” Dickman Law Office P.S.C., 27 Aug. 2018, www.dickmanlawoffice.com/personal-injury/man-sues-apple-exploding-iphone/.

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Legal Response to Florida’s Legislation on Transgender Rights: An Early Sign of What is to Come?

By Kensington Jones, New York University Class of 2025

October 16, 2023

Transgender rights seem to be becoming more and more controversial in recent years with new legislation emerging in certain states regarding the topic. Florida, in particular, has seen an increase in legislation regarding transgender rights which has resulted in a large response from local communities. For example, this past Saturday, October 7th, 2023, activists gathered in Orlando, Florida to protest against recent legislation in Florida that they feel negatively impacts transgender youth [1]. In addition to this political response, there has also been a legal response. Transgender rights activists are now challenging Florida’s new legislation on transgender rights on the legal stage through lawsuits, and similar legal challenges may be awaiting Florida if similar legislation follows in the future.

Before the protest, several activists initiated a lawsuit arguing that recent legislation passed regarding transgender rights was unconstitutional [2]. The law they specifically targeted was House Bill 1521, also known as Fla. Stat. §553.865. However, Florida has pushed other legislation that may have added to the tensions concerning the march and the lawsuit. For instance, Florida’s Senate Bill 254 which went into effect in May this year, effectively blocks minors from receiving treatments for sex reassignment such as hormone replacement therapy (HRT) and any sex reassignment-related surgeries [3]. Not much longer after, Florida passed House Bill 1069, infamously known as the “Don’t Say Gay” bill, which prevents instruction on gender identity and sexuality in schools from pre-kindergarten to 8th grade [4]. Another bill passed alongside House Bill 1521 and House Bill 1069 was Senate Bill 1438, which punishes businesses for admitting underage individuals into adult live performances or drag shows [8]. Additionally, the activists themselves address a few examples of bills in their lawsuit they believe negatively impact transgender individuals. These examples include House Bill 0007 and House Bill 1557, which restrict what teachers can instruct on— one of the bills specifically banning instruction on transgender history [2]. Thus while this most recent protest and lawsuit centered primarily on a single bill, there has been a history of similar bills around the area of transgender rights that helped fuel this movement.

Regarding House Bill 1521, also referred to as the “bathroom ban,” it bans transgender individuals from using the bathroom and changing facilities that align with their gender identity. Furthermore, if someone were to enter a public bathroom that does not align with their sex assigned at birth and refuse to leave when asked to do so, they could face legal repercussions, as such actions under this law are considered public trespassing [5]. However, activists at Saturday’s rally had several qualms about this. Their main argument against the legislation was that it violated a fundamental right of theirs: their right to freedom of speech [2].

A central complaint of these activists is that this legislation prevents them from expressing their gender identity, which they argue is a government violation of their right to freedom of speech. They point to the First and Fourth Amendments to support their claim that this law is unconstitutional.

[2]Challenge to the Constitutionality of Florida Statute § 553.865 (2023)

The activists also filed a motion for a temporary restraining order as they believed that the legislation directly interfered with their right to protest.

[2]Challenge to the Constitutionality of Florida Statute § 553.865 (2023)

While the temporary restraining order was denied the day before the march, it is important to note what the pushback for this legislation may mean for the future [6].

Marches conducted by LGBTQIA+ activists in response to legislation are not new to Florida. In April this year, hundreds of activists came together to protest some of the legislation mentioned previously such as House Bill 1069, House Bill 1521, and Senate Bill 1438 [7]. If large-scale political protests are becoming more common in response to this issue, who is to say that legal responses will not start becoming more common as well? It may be possible that in the future legal pushback to Florida legislation on this topic may be more commonplace.

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[1]https://www.wesh.com/article/orlando-march-to-protect-trans-youth/45475439#

[2]https://ccrjustice.org/sites/default/files/attach/2023/09/1_9-29-23_Complaint_w.pdf

[3]https://www.flsenate.gov/Session/Bill/2023/254

[4]https://www.flsenate.gov/Session/Bill/2023/1069

[5]https://www.flsenate.gov/Session/Bill/2023/1521/ByVersion

[6]https://webservices.courthousenews.com/sites/Data/AppellateOpinionUploads/2023-06-10--15-12-56-Middle1887[10].pdf

[7]https://thehill.com/homenews/state-watch/3971062-hundreds-of-drag-queens-march-on-florida-capital-to-protest-anti-lgbtq-legislation/

[8]https://www.flsenate.gov/Session/Bill/2023/1438

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newyorkprelawland-blog · 7 months

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Navigating Self-Defense Laws: Balancing Personal Safety and Legal Responsibility"

By Amy Zhang, New York University Class of 2024

October 1, 2023

The tragic incident happened on May 1st involving Daniel J. Penny, a U.S. Marine veteran, and Jordan Neely, a homeless man, on the New York City subway, has brought the topic of self-defense laws to the forefront of public discourse. The case underscores the complex and sometimes controversial nature of self-defense laws in the United States. While individuals have the right to protect themselves and others in threatening situations, the legal boundaries of self-defense can be challenging to define. This article examines the concept of self-defense, the varying laws across states, and the implications of recent cases like Penny's.

Self-defense is defined as “the use of force to protect oneself from an attempted injury by another”.[1] This concept acknowledges that individuals should not be punished for acting reasonably to prevent imminent harm. However, what constitutes "reasonable" action can vary widely depending on the specific circumstances and state laws.

Self-defense laws in the United States are primarily governed at the state level, resulting in a patchwork of legislation with significant differences. The two main approaches to self-defense laws are "stand your ground" and "duty to retreat."

Stand Your Ground: Some states have adopted "stand your ground" laws, which allow individuals to use force, including deadly force, without the obligation to retreat when facing a perceived threat. Florida's case involving Trayvon Martin brought national attention to these laws.

Duty to Retreat: Other states uphold the "duty to retreat" doctrine, which requires individuals to exhaust all reasonable means to avoid confrontation before resorting to force. In such states, using deadly force is typically only justified when there's no safe avenue of escape.[2]

Penny's case highlights the ambiguity surrounding self-defense laws. According to his lawyers, Penny believed he was acting in self-defense and to protect other passengers when he applied a chokehold to Jordan Neely, who was reportedly behaving aggressively. Penny's legal defense hinges on his perception of imminent danger and the absence of malicious intent. Regardless of the intent, Neely’s death was ruled as a homicide by the medical examiner’s office.[3] Whether or not his actions will be deemed legally justifiable remains the central question to the court. In June, he was indicted by the grand jury to be in connection with Neely’s death and was charged with criminally negligent homicide and second-degree manslaughter. However, Penny pleaded not guilty.[4] According his lawyer, all evidence seem reasonable and it’s most likely that they will argue with the self-defense claim.

One key element of a self-defense claim is the existence of an imminent threat. For a self-defense argument to hold water, Penny would need to demonstrate that he reasonably believed Neely posed an immediate threat[5] to himself or others on the subway. This assessment should consider the specific circumstances leading up to the altercation and whether there was a genuine fear of harm. Self-defense laws generally require that the force used in response to a threat must be proportional.[6] In other words, the level of responsive action used need to reasonably match the level of threat or danger that’s perceived. For Penny’s case, a chokehold is considered a dangerous and potentially lethal technique, so it's crucial to assess whether its use was proportionate to the threat posed by Neely. Additionally, New York has a "duty to retreat" doctrine, which means individuals are generally required to attempt to avoid confrontation and use force only as a last resort. Penny's lawyers would need to argue why retreating was not a viable option in this situation. Ultimately, the legal analysis of Penny's self-defense claim would involve a thorough examination of the specific facts, including witness testimonies, video evidence, and the prevailing self-defense laws in New York.

The Penny-Neely case has stirred a national debate on several fronts:

Vigilantism: Critics argue that self-defense laws can encourage vigilantism and untrained individuals to take the law into their own hands. There's concern that these laws may inadvertently escalate conflicts rather than de-escalate them.

Mental Health and Homelessness: Advocates highlight the importance of addressing mental health and homelessness issues as part of a broader strategy to reduce confrontations and violence in public spaces. The case raises questions about whether the legal system is equipped to handle individuals with untreated mental illness.

Legal Reform: The case also calls attention to the need for comprehensive reform and standardization of self-defense laws across states. Critics argue that a lack of uniformity leads to inconsistent outcomes and unequal justice.

The case of Daniel Penny and Jordan Neely highlights the complex interplay between self-defense laws, individual rights, and public safety. While the right to self-defense is a crucial aspect of personal freedom, its application can be fraught with uncertainty, given the variations in state laws and the subjective nature of perceived threats. Only through thoughtful analysis and reform can we hope to strike the delicate balance between personal safety and legal accountability. Penny’s next trial appearance would be on October 25th.

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[1] https://www.law.cornell.edu/wex/self-defense

[2] Ward, Cynthia. “‘Stand Your Ground’ and Self Defense.” William & Mary Law School Scholarship Repository. 2015

[3] https://www.nytimes.com/2023/06/14/nyregion/daniel-penny-jordan-neely-chokehold-indicted.html

[4] https://www.nytimes.com/2023/06/28/nyregion/daniel-penny-jordan-neely-subway.html

[5] Ward, Cynthia. “‘Stand Your Ground’ and Self Defense.” William & Mary Law School Scholarship Repository. 2015

[6]https://www.findlaw.com/criminal/criminal-law-basics/self-defense-overview.html#:~:text=Proportional%20Response,force%20to%20counteract%20the%20threat.

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newyorkprelawland-blog · 7 months

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A New Possible Emerging Effect of Affirmative Action: Scholarships at Risk

By Kensington Jones, New York University Class of 2025

October 1, 2023

By now, most Americans are aware of the monumental decision the Supreme Court made on June 29th, 2023. On this day, the court ruled that affirmative action, commonly used in the college admissions process, is unconstitutional. However, what many Americans may not be aware of is the overarching implications of this recent ruling.

Before the ruling for Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the ruling that turned over affirmative action was made, many schools made admissions decisions with ethnicity or race in mind. Essentially, many schools took a non-colorblind or race-conscious approach in how they admitted students. Starting with this year’s upcoming admissions cycle, colleges will have to take a race-neutral approach to their admissions. However, this raises the question of what will happen to other race-based initiatives and programs colleges have implemented to increase their student body diversity. Does this court ruling perhaps have implications for race-conscious programs and scholarships in which minorities are preferred?

It is important to establish the history of affirmative action and why it was overruled, as this provides the basis for why race-conscious programs and scholarships may be targeted next. Affirmative action was previously challenged at the Supreme Court level in 2003 with Grutter v. Bollinger. At this time, the composition of the ideologies and judges were much different and thus resulted in a different ruling than the ruling made most recently. The court ruled that race-based admissions are permissible on the grounds that universities valuing diversity as part of their educational mission is not unconstitutional.

[1] Grutter v. Bollinger et al. 539 U.S. 306. Supreme Court of the United States. 2003.

This precedent, however, would prove to be short-lived as, in 2023, it is overturned with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina.

The majority court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College essentially stated that college admissions is much like a “zero-sum” game in the sense that by giving some students an advantage in the admissions process, other students are thus disadvantaged. They argue that this is a form of racial discrimination at odds with the Equal Protection Clause and is, therefore, unconstitutional.

[2] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. 383 F. Supp. 3d 1. United States District Court, District of Massachusetts. 2019.

With these recent two court cases on affirmative action, the court’s stance in regard to affirmative action has changed significantly, bringing about new precedents that colleges will have to adapt to in the upcoming admissions cycle.

Some colleges have previously and are still grappling with approaching the admissions process without using affirmative action. Before the recent ruling on affirmative action, California was the first state to eliminate race-conscious admissions in 1996. Article 1 Section 31 was added to California’s state constitution through Proposition 209, in which they detailed the basis on which affirmative action is unconstitutional.

[3] California Constitution. Art. 1, § 31.

From this point forward, college admissions in California changed, and with that change came a change in the makeup of student bodies at their academic institutions as well. For example, in 2006, the amount of African American first-year students at UCLA fell to 2% or about 96 students in a class of 4,811 [4]. The following year, UCLA implemented a more holistic approach to their admissions process to raise their diversity again [5]. This approach takes into a variety of factors ranging from GPA to family income, however, it excludes race per Article 1 Section 31. Although this new approach did increase diversity at UCLA to a certain extent, studies show that this increased diversity may still be lacking. A study conducted by Georgetown indicated that even if selective institutions consider other factors such as family income, levels of diversity fail to reflect the socioeconomic diversity of the US. Thus, they conclude that “there is no good substitute for the consideration of race [6].”

According to an interview conducted by NPR with Mitchell Chang, a professor in education who also studies diversity at UCLA, race-conscious programs and scholarships are more than likely to follow the fate of race-conscious admissions. Chang stated that after race-conscious admissions were banned in California, modifications to race-conscious scholarships followed suit [7]. Additionally, some states have already started pushing for the removal of race-conscious scholarships following the Supreme Court’s decision. The Missouri Attorney General strongly advised the University of Missouri System to “immediately cease their practice of using race-based standards to make decisions about things like admission, scholarships, programs and employment [8].” Thus, they have stated that they will discontinue race-conscious scholarships for the upcoming admissions cycle.

Selective colleges, while not to the same extent, have been able to keep at least somewhat similar levels of diversity with race-conscious scholarships. Thus, what will the new makeup of student bodies look like if these initiatives are banned as well? The future is still unclear on the fate of race-conscious scholarships. Universities will most likely be looking closely at the new emerging demographics of their student bodies in the upcoming years along with public and legal responses to determine their next steps.

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[1]https://supreme.justia.com/cases/federal/us/539/306/case.pdf

[2]https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf

[3]https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CONS&division=&title=&part=&chapter=&article=I

[4]https://apb.ucla.edu/file/a11544a7-fcf7-4911-a508-7d9d08504e3b

[5]https://newsroom.ucla.edu/admissions

[6]https://cew.georgetown.edu/wp-content/uploads/cew-race_conscious_affirmative_action-fr.pdf

[7]https://www.npr.org/2023/06/29/1176715957/why-the-supreme-court-decision-on-affirmative-action-matters

[8]https://www.umsystem.edu/ums/news/news_releases/202306292029248061_news

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