Wake Forest Law Review
28Sep

Harper v. Hall and State Courts as Politically Accountable Actors

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13 Wake Forest L. Rev. Online 42

Brandon J. Johnson[1]

Introduction

The North Carolina Supreme Court’s recent decision to reverse course on partisan gerrymandering has garnered national attention.[2] In the court’s third opinion issued in Harper v. Hall,[3] (“Harper III”) a newly elected 5-2 conservative majority of the state supreme court overruled the first opinion[4] authored by the previous 4-3 liberal majority and declared partisan gerrymandering to be a nonjusticiable political question.[5] Election law and constitutional law scholars have produced reams of content questioning how the ruling would impact the U.S. Supreme Court’s pending consideration of the state court’s prior decision in the case.[6] Many questioned whether the state court’s decision would cause the Court to dismiss the initial appeal.[7]

As it turned out, the U.S. Supreme Court’s ruling in what would be known as Moore v. Harper[8] was a significant election law case that expanded the federal judiciary’s role in regulating federal and even state elections. The Supreme Court’s opinion in the case received significant national attention and was largely greeted with a sigh of relief by many scholars and commentators who worried that the Court would adopt an extreme version of a fringe theory known as the Independent State Legislature Theory.[9] Indeed, the importance of the U.S. Supreme Court’s decision regarding the Independent State Legislature Theory has been the primary focus of the commentary surrounding Harper v. Hall and Moore v. Harper, and rightly so.[10] If the Court had adopted the most extreme version of the theory, state legislatures—including (and perhaps especially) significantly gerrymandered legislatures—would have free rein to craft election regulations that entrenched partisan advantages with no constitutional guardrails. Though the Court rejected this approach, the Moore majority left the door open for the U.S. Supreme Court to act as the final arbiter of state election practices, which by itself has caused significant consternation among election law scholars.[11]

Given the national consequences of Moore v. Harper, however, the state court decision Harper III has been largely ignored. While this oversight is understandable, an examination of the North Carolina Supreme Court’s opinion in the case yields vital insight into the ways in which state courts can hide behind a veneer of judicial independence while actually using state politics and polarization to reshape state law. This insight may yield immediate practical consequences given that partisan gerrymandering litigation is currently ongoing in approximately one-third of the states.[12]

The dissent in Harper III provides a searing indictment of the majority’s reasoning and sets forth a cogent argument explaining why the opinion is an incorrect interpretation of the North Carolina constitution. The analysis that follows in this Essay will not rehearse the persuasive criticisms leveled by the dissent. Rather, it will focus on two ways in which the majority opinion may provide insight into how state courts can use the traditional tools of judicial review to reshape a state’s political culture. After providing a brief sketch of the procedural history of Harper I, II, and III in Part I, Part II of this Essay then explores the ways in which the opinion attempts to enshrine an exceptionally narrow vision of originalism as the only acceptable method of interpreting North Carolina’s constitution. Part III criticizes the way in which the Harper III majority further entrenches an incorrect understanding of political accountability.

While the examination below is limited to the rhetoric and reasoning employed by the North Carolina Supreme Court, it should serve as a case study for how easy it can be for state courts to affect a state’s political and policy landscape without attracting much notice.

I. The Procedural Path

A quick (and by no means exhaustive) recap of the procedural history of the Harper opinions will illuminate the unusual issues created by the state court’s recent ruling and facilitate the discussion that follows. The litigation began after the North Carolina General Assembly issued a new districting map after the 2020 census.[13] Multiple parties filed suit alleging inter alia that the map employed unconstitutional partisan gerrymanders in violation of the North Carolina Constitution’s guarantee of free elections and the state’s equal protection clause.[14] In January 2022, a three-judge panel of the Wake County Superior Court ruled that partisan gerrymandering claims “presen[t] nonjusticiable, political questions” under the state constitution.[15]

Less than a month later, the state supreme court heard the case directly and reversed the lower court’s ruling.[16] The 4-3 majority in what would become known as Harper I held that partisan gerrymandering claims are justiciable and the “extreme” gerrymanders in the challenged districting map violated the state constitution’s free elections clause, equal protection clause, free speech clause, and freedom of assembly clause.[17]

While the state legislature proceeded to draft new districting maps to comply with Harper I, the litigation continued, and the U.S. Supreme Court agreed to hear a challenge to this ruling under the name Moore v. Harper.[18] The Supreme Court case garnered national attention, in part, because the petitioners advanced arguments under the Independent State Legislature Theory. The Independent State Legislature Theory posits that only the state legislature has any say in federal elections[19] because the Elections Clause of the U.S. Constitution instructs that “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”[20] Put another way, the state constitution itself places no limits on the legislature’s ability to regulate federal elections leaving state courts with no authority to interpret state constitutional provisions in order to second guess election related legislation.

But while the U.S. Supreme Court litigation proceeded, various parties challenged the second districting map that the legislature drafted in response to Harper I and the case made its way back to the state supreme court.[21] In a December 2022 opinion, now known as Harper II[22], the same 4-3 majority that issued the Harper I opinion ruled that the map for the state house was constitutionally adequate but the maps for the state senate and the federal congressional districts still contained unconstitutional partisan gerrymanders.[23]

In between oral arguments in Harper II and the issuance of the opinion, the North Carlina midterm elections occurred.[24] North Carolina’s supreme court justices are elected in partisan contests, and two of the Democratic justices who had signed on to the Harper II majority were replaced by conservative challengers.[25] As a result of this change in personnel, the new 5-2 conservative majority expressed concern that the Harper II majority had “overlooked or misapprehended” a point “of fact or law,”[26] and granted a petition for rehearing.[27]

On April 28, 2023 this newly minted majority “withdrew” Harper II and “overruled” Harper I, finding that partisan gerrymandering claims presented a nonjusticiable political question.[28] The U.S. Supreme Court then issued its opinion in Moore v. Harper on June 27, 2023.[29] The majority opinion determined that the Court still had standing to decide the initial case but affirmed the Harper I decision.[30] In doing so, the Court rejected the state defendants’ primary legal argument regarding the Elections Clause and reaffirmed that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”[31] The Court did, however, reserve for itself the right to pass judgment on whether state courts correctly interpreted questions of state election law under state constitutions,[32] a significant increase in the Court’s review of state election laws.[33]

With this procedural sketch in place, this Essay now returns to its primary focus: an examination of the warning signs advocates, policymakers, and public law scholars should glean from the North Carolina Supreme Court’s opinion in Harper III. As discussed in the introduction, the focus of this examination will not be on the merits of the majority opinion as the dissent has already done an admirable job dissecting that on its own terms.[34] Instead, the remainder of this Essay delves into the more far-reaching consequences of the opinion. Though the ramifications of the majority’s opinion are limited to North Carolina, they provide a cautionary tale for the ways in which state courts—particularly those with elected judges—can involve the judiciary in the political fortunes of the state.

II. Regressive Originalism

Perhaps the most sweeping consequence of the opinion may be the majority’s efforts to enshrine originalism (and a crabbed version of originalism, at that) as the only acceptable methodology of constitutional interpretation.[35] From the first few pages, Harper III makes this view of constitutional interpretation clear. For example, on the second page of the opinion, the majority writes: “As the courts apply the constitutional text, judicial interpretations of that text should consistently reflect what the people agreed the text meant when they adopted it.”[36] This appeal to the original public meaning[37] of the state’s constitution returns time and again throughout the opinion, including the following concluding admonition: “Recently, this Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution.”[38] This language makes clear that the current majority of the North Carolina Supreme Court views originalism as the only legitimate method of constitutional interpretation.

The current state court majority is not alone in its application of originalist methodology, nor unique in its attempts to privilege this school of constitutional interpretation above all others.[39] Nor is an originalist approach to interpreting the North Carolina constitution without precedent.[40] The version of originalist methodology operationalized in the Harper III opinion, however, is surprisingly (almost shockingly) pernicious.

As an initial matter, the majority seems to advocate for both original public meaning originalism and original intent originalism, despite the latter theory having been all but (though not entirely)[41] abandoned by originalism’s defenders.[42] In its introduction, for example, the majority insists that “judicial interpretations of [constitutional] text should consistently reflect what the people agreed the text meant when they adopted it”—a classic formulation of original public meaning originalism.[43] But when returning to a discussion of constitutional interpretation, the majority seems to urge an “original intent” approach, asserting that “courts determine the meaning of a constitutional provision by discerning the intent of its drafters when they adopted it.”[44]

The reliance on this largely abandoned[45] version of originalism is only one example of how the Harper III majority is attempting to mandate not just originalism, but a regressive vision of originalism. By focusing on the actual intent of the drafters of the document, a court limits the potential interpretations of a constitution to the world view of individuals at a fixed point in time—a world view that is in many ways incompatible with the present day. Additionally, by employing both original intent originalism and original public meaning originalism, the Harper III majority can switch back and forth between whichever methodology best supports its desired result, eliminating originalism’s supposed virtue of constraining judicial discretion.[46]

Nor does the majority escape the “law office historian” pitfalls that plague many originalist opinions.[47] For example, the court devotes several pages to recounting the history of the Glorious Revolution in a befuddling attempt to show that the state constitutional clauses cited by the plaintiffs in the underlying cases were directed at protecting North Carolinians from voting regulations designed to benefit the king.[48] As an initial matter, this history says nothing about the clauses’ relationship to gerrymandering—again, a phenomenon that was not even in the lexicon for more than a century.[49] But even taking the majority’s argument on its own terms, the historical narrative provided arguably supports applying the free elections clause to partisan gerrymandering rather than undermining such an interpretation.[50] The majority declares, for example, that one reason for the prohibition on dividing counties to make new districts comes in part from King James II’s practices of “adjusting a county’s or borough’s charter to embed the king’s agents and ensure a favorable outcome for the king in the 1685 election.”[51] The majority reiterates that “[i]n some instances these adjustments altered who could vote in order to limit the franchise to those most likely to support the king’s preferred candidates.”[52] But this type of result-oriented intervention is exactly the reason parties challenge partisan gerrymanders.

But beyond succumbing to these more common problems with originalist methodology, the majority also employs a particularly rigid approach to originalism that would severely inhibit applications of the state constitution to modern developments. The most plausible reading of the majority’s analysis of whether the constitution applies to partisan gerrymandering, for example, is that the state constitution is essentially irrelevant to any subject not explicitly discussed.[53] Because the constitution does not mention gerrymandering, the majority says, that document is irrelevant to evaluating any gerrymandering challenges.[54] But even staunch originalists like Ilan Wurman accept that applying the original meaning of the text does not mean that a constitution must anticipate and discuss every eventuality in order to apply to the subject at hand.[55] The fact that the U.S. Constitution makes no mention of the internet, for example, does not prevent originalists from agreeing that the protections of the First Amendment apply to this 21st century medium.[56]

In support of this tightly cabined interpretation of the state constitution, the majority highlights a case from the 1780s striking down a statute that directly conflicted with the then governing constitution by eliminating the right to a jury trial in cases where the state confiscated loyalist property.[57] The constitution at the time promised a jury trial “in all Controversies at Law respecting property.”[58] But simply because the first statute, which was deemed unconstitutional in the state, directly conflicted with express language in the constitution does not impose a lasting and immovable requirement that judicial review of a legislative act is permissible only if the constitution speaks directly to the subject at hand.[59]

The majority even attempts to graft on some version of this explicit language requirement to its discussion of the U.S. Constitution, asserting that the lack of any specific mention of partisan gerrymandering in that document demonstrates the framers’ intent to exclude the federal courts from any such oversight. The majority further claims that “[t]he framers could have limited partisan gerrymandering in the [U.S.] Constitution or assigned federal courts a role in policing it, but they did not.”[60] To take this statement at face value shows the absurdity that this explicit acknowledgement requirement would impose.[61] The term “gerrymander” did not even exist until more than two decades after the U.S. Constitution was ratified.[62] Nor did the U.S. Constitution make any mention of “partisanship” (or “factionalism” as this concept was more commonly called at the time) because one of the goals of the famers was to avoid factional divisions.[63]

The end result of this interpretative approach is that the majority seems far too comfortable with an interpretation of the North Carolina constitution that reflects a polity of exclusion. The opinion at one point even asserts that because the original understanding of the state constitution’s “free elections” clause still limited the franchise to land-holding “freemen,” the clause cannot be construed to prohibit limitations on voting rights beyond coercion and intimidation.[64] An application of such a regressive version of originalism is especially misplaced in deciding questions relating to elections based on a constitutional text ratified when the franchise was extremely limited. The majority, for example, argues that because the original North Carolina Constitution adopted in 1776 contained free elections and freedom of assembly clauses while still allowing the legislature to draw malapportioned districting maps, these same clauses should not be used to restrict legislative map drawing today.[65] But this rationale would also allow election regulations that discriminated on the basis of race, gender, sexual orientation, and even status as a property owner, as long as subsequent amendments did not address the specific types of discriminatory regulations employed. Indeed, the Harper III majority simply ignores fundamental developments in both federal and state constitutional law that took place after the ratification of the state’s first constitution—ignoring the fact that North Carolina adopted a new constitution in 1868 and again in 1971 and has significantly amended the document in the last two centuries.[66]

Even when the majority makes general assertions of law, it relies on authority that further illustrates the regressive results of the justices’ chosen interpretive methodology. The majority, for example, cites to a 1944 case, State v. Emery,[67] to support its assertion that “[constitutions] should receive a consistent and uniform construction . . . even though circumstances may have so changed as to render a different construction desirable.”[68] But the “consistent and uniform construction” urged by the court in Emery enshrined the barring of women from serving as jurors in the state based on language in the then governing constitution stating that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.”[69] To be clear, the majority does not endorse (or even mention) the holding of Emery, but it is telling that the vision of originalism espoused by the Harper III opinion is the exact same reading of the state constitution that prohibited women from serving on juries as late as 1944.[70] The fact that this case would be used to support the majority’s preferred methodology when other options are readily available seems questionable.

In a similarly telling choice, the majority issues another generic statement regarding the nature of the state constitution, asserting that the document “‘is in no matter a grant of power.’”[71] This benign quote comes from McIntyre v. Clarkson,[72] but the opinion then traces the origins of this quote to Lassiter v. Northampton County Board of Elections,[73] a 1958 case that upheld North Carolina’s reading requirement at the polls, despite clear evidence that the requirement was used to impede the ability of black North Carolinians to vote.[74] Again, the choice to trace this general point of law to a case upholding racially discriminatory voting laws indicates that the majority is either unaware of, or indifferent to, the regressive results of its methodological approach.[75]

In fact, the majority opinion makes clear that the North Carolina constitution would not ban racial gerrymanders, or any other type of racially motivated voting restrictions, leaving such practices banned only by the U.S. Constitution.[76] The court’s emphasis on requiring an explicit, specific textual restriction in the Constitution leads to a listing of what the majority appears to consider the only permissible avenues for judicial review of legislative districting acts.[77] Notably absent from this list is any prohibition on district maps that discriminate based on race.[78] The opinion also quotes heavily from a prior state supreme court decision, Dickson v. Rucho,[79] to emphasize the difficulty in identifying a judicially manageable standard for evaluating partisan gerrymanders.[80] What goes unmentioned in this discussion, however, is that the U.S. Supreme Court vacated Dickson I because the districting map employed racial gerrymanders as well.[81]

Taken together, the majority’s vision for constitutional interpretation inescapably leads to a regressive application of the state’s constitution. Because the rhetoric here sounds in a traditional application of judicial review, however, the Harper III majority has laid out a blueprint for similarly inclined state court majorities to manipulate theories of constitutional interpretation to essentially control state electoral politics while shielding themselves from political accountability. With this concern in mind, the Essay now turns to an examination of the majority’s misleading invocation of political accountability as justification for its holding.

III. Manipulation of Political Accountability

The other rhetorical move made by the Harper III majority that is likely to have long reaching impact is the weaponization of political accountability. The majority relies on the time honored trope that the state legislature is the true “people’s branch” in state government, asserting from the beginning of the opinion that “[t]he people exercise [the political] power [granted to them by the state constitution] through the legislative branch, which is closest to the people and most accountable through the most frequent elections.”[82] The majority then implicitly ties this version of “accountability” to the state legislature’s ability to implement “the will of the people.”[83]

This lionization of state legislatures as the branch “closest to the people” has been effectively rebutted by legal scholars like Miriam Seifter.[84] As Seifter demonstrates, officials elected in statewide elections are often more representative of the whole people of a state than are state legislators.[85] In North Carolina, the very same justices who disclaim sufficient accountability are all elected statewide.[86] Indeed, it is because of the elected (and partisan) nature of these judicial offices that Harper II was granted a rehearing.[87] So, even from a threshold perspective, the democratic legitimacy foundation for the Harper III opinion is on shaky ground.

But this unsupported trope of American democracy has even less to recommend it in the context of a gerrymandering challenge. The essence of a claim of gerrymandering is that the body elected by the gerrymandered map is unrepresentative of the people.[88] Even a majority of voters cannot effectively hold a gerrymandered legislature “accountable” if the gerrymander is extreme enough to consistently transform minority preference into majority representation.[89] But the Harper III majority ignores this reality, blithely asserting that “those whose power or influence is stripped away by shifting political winds cannot seek a remedy from courts of law, but they must find relief from courts of public opinion in future elections.”[90] Indeed, the majority’s assurances then that “opponents of a redistricting plan are free to vote their opposition,”[91] ring hollow when addressing claims that the redistricting process has effectively undermined the ability of even a majority of voters to hold their legislature “accountable” in the traditional sense.

The Harper III majority also recounts language from Rucho v. Common Cause[92] that reiterates a “long-standing … myth[] about the rational, policy-oriented voter.”[93] The majority faults the Harper I opinion for focusing too much on the role of partisan affiliation in elections.[94] The opinion confidently asserts, for example, that “voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.”[95] But, as I have written previously, much of modern political science literature documenting voter behavior indicates that voters are not nearly this nuanced, and instead partisan affiliation is a far better predictor of voter behavior than any of the factors identified in Rucho and parroted in Harper III.[96]

The majority quotes freely from Rucho and incorporates much of that decision’s language cautioning against involving the “unaccountable” federal judiciary against involving itself in the inherently political redistricting process.[97] Regardless of one’s views on the correctness of Rucho, it is clear that the accountability concerns discussed in the case stem from the federal judiciary’s position as an unelected branch of government.[98] Indeed, the connection between political accountability and the unelected nature of the federal judiciary is quoted in full by the Harper III majority: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”[99]

But recall that almost the entire North Carolina judiciary, including the justices of the state supreme court, are elected.[100] The Justices in particular, are elected statewide and are not subject to the gerrymandered districting maps.[101] As noted above, this makes them, arguably, more accountable to the people of North Carolina because the statewide election better reflects the full electorate than does a manipulated state legislature district.[102] Nor are these elected judges above the political fray because they are chosen in partisan elections appearing on the ballot with their party affiliation clearly identified.[103] The Harper III majority cautions against involving the judiciary in “[c]hoosing political winners and losers” because doing so “creates a perception that the courts are another political branch.”[104] But in North Carolina, the judiciary is, arguably, a political branch. The state’s justices owe their offices to a political election that is influenced, in part at least, by the partisan, political preferences of the voters.[105] This is not to say that there is no difference between a justice and a legislator. Rather, this criticism demonstrates why the Harper III majority’s reliance on the accountability justifications in Rucho are so misplaced.

The majority leans into this accountability narrative, despite eventually acknowledging the elected nature of the state’s judiciary.[106] Indeed, though still pushing its assertion that the state legislature is the “most accountable” branch of the state government, the majority does recognize that with the implementation of an elected judiciary “judges in North Carolina become directly accountable to the people through elections.”[107] And the Harper III majority itself seems to acknowledge that the judicial elections play (or should play) a role in shaping North Carolina law.[108] One of the criticisms levelled against the Harper II opinion is that the “four-justice majority issued its Harper II opinion on 16 December 2022 [after the most recent judicial election] when it knew that two members of its majority would complete their terms on this Court just fifteen days later.”[109] It is hard to read this statement as anything other than a concession that a change in the partisan makeup on the court would (and should) change the outcome of cases.

Yet the majority consistently focuses on the supposed dangers posed to the separation of powers by involving the judiciary in “policymaking.”[110] The majority insists, for example, that the lack of an explicit reference to gerrymandering means that any court exercising judicial review of a gerrymandered map is engaged in policymaking.[111] Such judicial policymaking, we are told, “usurps the role of the legislature by deferring to [the court’s] own preferences instead of the discretion of the people’s chosen representative.”[112]

But, in addition to the unsound political accountability foundation for this view of the role of an elected judiciary, the majority’s vision of “policymaking” ignores the reality that the decision to close the courthouse doors to partisan gerrymandering claims is also a policy choice.

In refusing to apply the state constitution’s equal protection clause to partisan gerrymandering claims, for example, the majority asserts that “the fundamental right to vote on equal terms simply means that each voter must have the same weight.”[113] The court dismisses any independent application of the clause to elections by claiming that any equal protection concerns raised by election procedures are fully addressed by the requirements in Article II that each state legislator “represent, as nearly as may be, an equal number of inhabitants.”[114] But, by insisting that the state constitution’s equal protection clause only addresses the “weight” of each individual vote, and by taking a step further and confining “weight” to only the number of voters represented by each representative, the majority is engaging in exactly the same type of policymaking it claims made the Harper I and Harper II decisions illegitimate.

The inconsistent, almost incoherent ways in which the Harper III majority has employed discredited myths about political accountability and the role of an elected judiciary will impact election law and constitutional interpretation in North Carolina far beyond the holding of the case. With more than three quarters of states employing at least some form of elections as part of their judicial selection process,[115] a failure to confront the realities of an elected judiciary will continue to leave open opportunities for state courts to employ fantasies of political accountability to reshape their state’s political processes. While acknowledging the political nature of an elected judiciary may not stop state courts from reaching their desired results, it will at least require state judiciaries to honestly assess their own political role in deciding separation of powers disputes.

Conclusion

While the U.S. Supreme Court’s opinion in Moore v. Harper captured national attention, the Harper III majority also rejected the broadest version of the Independent State Legislature Theory advanced in the Moore briefing. In doing so, the majority recognizes that the courts—and by implication the state constitution—do have some role to play in the districting process: “Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The Executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review.”[116] But, as with the opinion in Moore, the majority opinion in Harper III will have a longer reach beyond a specific holding on partisan gerrymandering.

This Essay has specifically focused on the adoption of a regressive form of originalism, which ultimately results in a polity of exclusion and inhibits the court’s potential to employ the state constitution in addressing contemporary challenges. The Harper III majority’s reliance on a rigid and outdated version of originalism is deeply troubling. By adhering to a carefully crafted quasihistorical context that fails to account for societal evolution and progress, the state court disregards the dynamic nature of constitutional principles. And the majority’s willingness to interpret the state constitution in an intentionally exclusionary way will continue to echo through the court’s jurisprudence.

The Essay has also demonstrated the danger of relying on “mythical” notions of political accountability. The majority’s use of these largely unrealistic tropes to decry judicial policymaking, while conveniently overlooking the fact that the North Carolina judiciary is elected and therefore accountable to the public, highlights the ways in which state courts can weaponize accountability not just in North Carolina, but nationwide. As of July of this year, litigation around partisan gerrymandering is ongoing in at least seventeen states.[117] Because the Supreme Court has closed the door on such claims under federal law, state courts remain the only viable venue to address partisan gerrymanders.[118] Left unchecked, the Harper III opinion provides a dangerous blueprint—regressive originalism and unsubstantiated notions of political accountability—that state courts may apply to these claims in ways that will significantly influence state election processes (and likely results) for the foreseeable future.

Election law, constitutional law, and federalism scholars should take note of the jurisprudential tactics employed in the Harper III majority as they continue to work to protect American democracy.

  1. *. Assistant Professor of Law at University of Nebraska College of Law. Many thanks to Anna Arons, Eric Berger, Kristen Blankley, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Soto, Danielle C. Jefferis, Kyle Langvardt, Elise Maizel, Matthew Schaefer, and the members of the University of Nebraska College of Law Faculty Workshop for their thoughts and comments. ↑

  2. . See, e.g., Derek Muller, What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case?, Election Law Blog (Apr. 28, 2023, 10:04 AM), https://electionlawblog.org/?p=135865. ↑

  3. . Harper v. Hall, 886 S.E.2d 393 (N.C. 2023) (hereinafter “Harper III”). ↑

  4. . Harper v. Hall, 868 S.E.2d 499 (N.C. 2022) (hereinafter “Harper I”) (overruled by Harper III, 886 S.E.2d 393). ↑

  5. . Harper III, 886 S.E.2d 393. ↑

  6. . See, e.g., Muller, supra note 1. ↑

  7. . See, e.g., Hansi Lo Wang, A North Carolina court overrules itself in a case tied to a disputed election theory, NPR (Apr. 28, 2023, 12:25 PM), https://www.npr.org/2023/04/28/1164942998/moore-v-harper-north-carolina-supreme-court. ↑

  8. . 143 S. Ct. 2065 (2023). ↑

  9. . See, e.g., Rick Hasen, Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?, Election Law Blog (June 27, 2023, 3:29 PM), https://electionlawblog.org/?p=137129. ↑

  10. . See e.g., id. ↑

  11. . See e.g., id. ↑

  12. . Redistricting Litigation Roundup, Brennan Center for Justice (updated July 7, 2023), https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0. ↑

  13. . Harper III, 886 S.E.2d at 401. ↑

  14. . Id. ↑

  15. . Id. at 402. ↑

  16. . Id. at 403. ↑

  17. . Harper I, 868 S.E.2d at 559. ↑

  18. . 142 S. Ct. 2901 (2022) (mem.). ↑

  19. . See Brandon J. Johnson, The Accountability-Accessibility Disconnect, 58 Wake Forest L. Rev. 65, 90 (2023). ↑

  20. . U.S. Const. art. I, § 4, cl. 1. ↑

  21. . Harper III, 886 S.E.2d at 408. ↑

  22. . 881 S.E.2d 156 (2022) (hereinafter “Harper II”). ↑

  23. . Id. at 181. ↑

  24. . See Ethan E. Horton & Eliza Benbow, Two Republicans Win Seats On The NC Supreme Court, Flipping Majority, The Daily Tar Heel (Nov. 9, 2022), https://www.dailytarheel.com/article/2022/11/city-nc-supreme-court-2022-election-results. ↑

  25. . Id. ↑

  26. . Harper III, 886 S.E.2d at 399–400 (quoting N.C. R. App. P. 31(a)). ↑

  27. . Id. at 409. ↑

  28. . Id. at 401. ↑

  29. . 143 S.Ct. 2065 (2023). ↑

  30. . Id. at 2079, 2081. ↑

  31. . Id. at 2081. ↑

  32. . Id. at 2088. ↑

  33. . See Hasen, supra, note 8. ↑

  34. . Harper III, 886 S.E.2d at 449–78 (Earls, J., dissenting). ↑

  35. . Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 377 (2013) (“At its most basic, originalism argues that the discoverable public meaning of the Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation.”). ↑

  36. . Harper III, 886 S.E.2d at 399. ↑

  37. . Whittington, supra note 34, at 380 (“Originalist theory has now largely coalesced around original public meaning as the proper object of interpretive inquiry.”). ↑

  38. . Harper III, 886 S.E.2d at 448. ↑

  39. . See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022) (“[R]eliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” (quoting McDonald v. Chicago, 561 U.S. 742, 790–91 (2010))). ↑

  40. . See Harper III, 886 S.E.2d at 412–14 (collecting cases). ↑

  41. . See, e.g., Scott A. Boykin, Original-Intent Originalism: A Reformulation and Defense, 60 Washburn L.J. 245 (2021). ↑

  42. . Id. at 246. ↑

  43. . Harper III, 886 S.E.2d at 399. ↑

  44. . Id. at 431. ↑

  45. . See Whittington, supra note 34, at 382. ↑

  46. . See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (2019) (asserting that “constraint” is a virtue agreed upon by most strands of originalist scholarship); but see William Baude, Originalism as a Constraint on Judges, 84 U. Chi. L. Rev. 2213, 2214 (2018) (claiming that “originalist scholars today are much more equivocal about the importance and nature of constraining judges”). ↑

  47. . See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: Meet the New Boss, Same as the Old Boss, 56 UCLA L. Rev. 1095 (2009). ↑

  48. . Harper III, 886 S.E.2d.at 434–38. ↑

  49. . See Erick Trickey, Where Did the Term “Gerrymander” Come From?, Smithsonian Mag. (July 20, 2017), https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/. ↑

  50. . Harper III, 886 S.E. 2d at 434–38. ↑

  51. . Id. at 435 (emphasis added). ↑

  52. . Id. (emphasis added). ↑

  53. . See Harper III, 886 S.E.2d at 415 (“When we cannot locate an express, textual limitation on the legislature, the issue at hand may involve a political question that is better suited for resolution by the policymaking branch.”). ↑

  54. . See, e.g., Harper III, 886 S.E.2d at 400 (emphasis added) (“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”). ↑

  55. . Ilan Wurman, What is originalism? Debunking the myths, The Conversation (Oct. 24, 2020, 12:03 PM), https://theconversation.com/what-is-originalism-debunking-the-myths-148488. ↑

  56. . Neil M. Gorsuch, Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution, Time (Sept. 6, 2019, 8:00 AM), https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/. ↑

  57. . Harper III, 886 S.E.2d. at 415 (citing Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)). ↑

  58. . Id. (quoting N.C. Const. of 1776, Declaration of Rights § XIV). ↑

  59. . As the majority acknowledges, Bayard was the first exercise of judicial review of a statute in North Carolina, and may have been the first instance of a state court striking down a legislative act as contrary to the jurisdiction’s constitution. Id. ↑

  60. . Id. at 410. ↑

  61. . Id. at 415 (emphasis added) (“[T]he standard of review asks whether the redistricting plans drawn by the General Assembly, which are presumed constitutional, violate an express provision of the constitution beyond a reasonable doubt.”). ↑

  62. . Trickey, supra note 48. ↑

  63. . See, e.g., The Federalist No. 10 (James Madison). ↑

  64. . See Harper III, 886 S.E.2d at 432–33. ↑

  65. . Id. at 416–17. ↑

  66. . Dr. Troy L. Kickler, North Carolina Constitution Is an Important Governing Document, N.C. Hist. Project, https://northcarolinahistory.org/encyclopedia/1573/ (last visited Sept. 17, 2023). ↑

  67. . 31 S.E.2d 858 (N.C. 1944). ↑

  68. . Harper III, 886 S.E.2d at 413 (alterations and omissions in Harper III) (quoting State v. Emery, 31 S.E.2d 858, 861 (N.C. 1944)). Notably, the omitted language from the quote would seem to caution against the majority’s decision to reverse a previous pronouncement of constitutional law. The full quote reads: “[Constitutions] should receive a consistent and uniform construction so as not to be given one meaning at one time and another meaning at another time even though circumstances may have so changed as to render a different construction desirable.” Emery, 31 S.E.2d at 861 (emphasized language was omitted from the quote in Harper III). ↑

  69. . N.C. Const. art. I, § 13 (1868) (emphasis added). ↑

  70. . Harper III, 886 S.E.2d at 413; Emery, 31 S.E.2d at 866. ↑

  71. . Harper III, 886 S.E.2d at 414 (quoting McIntyre v. Clarkson, 119 S.E.2d 888, 891 (1961)). ↑

  72. . 119 S.E.2d at 891. ↑

  73. . 102 S.E.2d 853, 861 (N.C. 1958). ↑

  74. . Paul Woolverton, Democrats in 1900 made the NC Constitution racist: Will voters today undo that?, Fayetteville Observer (Mar. 24, 2023, 5:06 AM), https://www.fayobserver.com/story/news/2023/03/24/ncs-constitution-has-a-racist-rule-will-voters-repeal-literacy-tests/70035467007/. ↑

  75. . For further discussion of the morality of case citations—specifically in the context of citing to slave cases—see Alexander Walker III, On Taboos, Morality, and Bluebook Citations, Harv. L. Rev. Blog (June 10, 2023). ↑

  76. . Compare Harper III, 886 S.E.2d at 449 (holding that “claims of partisan gerrymandering present nonjusticiable, political questions”), with Miller v. Johnson, 515 U.S. 900, 927–28 (holding that redistricting plans aiming to racially segregate voters are federally unconstitutional). ↑

  77. . Harper III, 886 S.E.2d at 418 (quoting N.C. Const. art. II, § 3). The only restrictions on apportionment acknowledged by the majority are: (1) state senators must represent a (roughly) equal number of residents; (2) districts must be contiguous; (3); a prohibition on dividing counties to form a new district; and (4) a requirement that districts “remain unaltered” between censuses. Id. ↑

  78. . See id. ↑

  79. . 766 S.E.2d 238 (N.C. 2014). ↑

  80. . See, e.g., Harper III, 886 S.E.2d at 402 (quoting Dickson, 766 S.E.2d at 260). ↑

  81. . See Dickson v. Rucho, 137 S. Ct. 2186 (2017) (mem.). The Harper III opinion notes that the state court decision was vacated, but only using the euphemistic language “vacated on federal grounds.” See Harper III, 886 S.E.2d at 402. ↑

  82. . Harper III, 886 S.E.2d at 398. ↑

  83. . Id. at 398–99. The opinion returns to this theme of identifying the General Assembly as “the people’s branch” of state government. See, e.g., id. at 413 (“The legislative power is vested in the General Assembly, so called because all the people are present there in the persons of their representatives.” (quoting John V. Orth & Paul Martin Newby, The North Carolina State Constitution 95 (2d ed. 2013))); id. at 414 (citations omitted) (“Most accountable to the people, through the most frequent elections, “[t]he legislative branch of government is without question ‘the policy-making agency of our government[.]’” (quoting N.C. Const. art II)). ↑

  84. . Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733, 1755–77 (2021); see also Johnson, supra note 18, at 101–02. ↑

  85. . Seifter, supra note 83, at 1762–77. ↑

  86. . N.C. Const. art IV, § 16. ↑

  87. . See supra Part I. ↑

  88. . See Kevin Wender, The “Whip Hand”: Congress’s Elections Clause Power as the Last Hope for Redistricting Reform After Rucho, 88 Fordham L. Rev. 2085, 2090 (2020). ↑

  89. . For a discussion of the difficulty voters face in using the political process to change election laws, see Johnson, supra note 18, at 109. ↑

  90. . Harper III, 886 S.E.2d 393, 423 (N.C. 2023) (quoting Dickson v. Rucho, Nos. 11-CVS-16896, 11-CVS-16940, 2013 WL 3376658, at *1–2 (N.C. Super. Ct. Wake Cnty. July 8, 2013)). ↑

  91. . Id. at 443. ↑

  92. . 139 S. Ct. 2484 (2019). ↑

  93. . Johnson, supra note 18, at 103. ↑

  94. . See Harper III, 886 S.E.2d at 428. ↑

  95. . Harper III, 886 S.E.2d at 412 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2503–04 (2019)). The majority repeats these assertions, again without providing any empirical support for this view of voter behavior. Id. at 428–29. ↑

  96. . Johnson, supra note 18, at 104–05. ↑

  97. . See, e.g., Harper III, 886 S.E.2d at 413 (quoting Rucho, 139 S. Ct. at 2507). ↑

  98. . See Rucho, 139 S. Ct. at 2507. ↑

  99. . Harper III, 886 S.E.2d 393, 413 (N.C. 2023) (quoting Rucho, 139 S. Ct. at 2507); see also id. at 427 (alteration in original) (“A judicially discoverable and manageable standard is necessary for resolving a redistricting issue because such a standard ‘meaningfully constrain[s] the discretion of the courts[] and [] win[s] public acceptance for the court’s intrusion into a process that is the very foundation of democratic decision making.’” (quoting Rucho, 139 S. Ct. at 2500)). ↑

  100. . N.C. Const. art IV, §16. ↑

  101. . Id. ↑

  102. . See Seifter, supra note 83, at 1734–41. ↑

  103. . See, e.g., Judicial voter guide: 2022 primary election, North Carolina State Board of Elections, (last visited Sept. 17, 2023), https://www.ncsbe.gov/judicial-voter-guide-2022-primary-election. ↑

  104. . Harper III, 886 S.E.2d at 399. ↑

  105. . See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Court, 21 U. Pa. J. Const. L. 153, 177–78 (2018) (observing that elected state court judges do not enjoy the same presumption of judicial independence that attaches to the federal judiciary). ↑

  106. . Harper III, 886 S.E.2d at 418. ↑

  107. . Id. (citing N.C. Const. of 1868, art IV, § 26). ↑

  108. . Id. at 413–14. ↑

  109. . Id. at 407 n.5. ↑

  110. . See, e.g., Harper III, 886 S.E.2d at 399, 415, 431. The majority also ignores the differences between the ways in which power is separated at the state level instead of the federal level. For further discussion of these differences, see Robert F. Williams, The Law of American State Constitutions 238 (2009) and Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001). ↑

  111. . See Harper III, 886 S.E.2d at 428 (“[S]ince the state constitution does not mention partisan gerrymandering, the four justices in Harper I first had to make a policy decision that the state constitution prohibits a certain level of partisan gerrymandering.”). ↑

  112. . Id. at 431. ↑

  113. . Id. at 440. ↑

  114. . Id. at 442 (quoting N.C. Const. art. II, §§ 3(1), 5(1)). ↑

  115. . Significant Figures in Judicial Selection, Brennan Ctr. for Just. (Apr. 14, 2023), https://www.brennancenter.org/our-work/research-reports/significant-figures-judicial-selection. ↑

  116. . Harper III, 886 S.E.2d at 416. ↑

  117. . Redistricting Litigation Roundup, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0 (July 7, 2023). ↑

  118. . See generally Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (holding that challenges to partisan gerrymandering are to be made under state statutes and state constitutions—not the U.S. Constitution); see also Alicia Bannon, North Carolina Supreme Court Unleashes Partisan Gerrymandering, Brennan Ctr. For Just. (May 10, 2023), https://www.brennancenter.org/our-work/analysis-opinion/north-carolina-supreme-court-unleashes-partisan-gerrymandering. ↑

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15Aug

Bruen One Year Later: The State of the Second Amendment and Implications on the Rights of Felons

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Kaylee Tillett

Prior to 2008, gun-rights advocates referred to the Second Amendment as a “second-class right” with courts relying on a militia-centric interpretation articulated by the Supreme Court of the United States in United States v. Miller.[1] Nearly seventy years after Miller, the Supreme Court radically changed its interpretation of the Second Amendment in District of Columbia v. Heller.[2] In Heller, the right to keep and bear arms in one’s home for purposes of self-defense became the core of the Second Amendment, with the Supreme Court applying this right to the states two years later in McDonald v. City of Chicago.[3] Finally, last year, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court expanded the Second Amendment’s reach post-Heller and McDonald, holding “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”[4]

Bruen significantly altered the landscape of the Second Amendment, not only by expanding the reach of the right to keep and bear arms beyond the home, but also by rejecting the legal standard previously used to decide Second Amendment cases.[5] Under Bruen, the new two-step analysis for Second Amendment cases begins with a presumption that if the plain text of the Second Amendment includes an individual’s conduct, then the Constitution protects that conduct.[6] Then, the government bears the burden of justifying its proposed regulation “by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”[7] When deciding Bruen, the Supreme Court focused its “historical analysis” on the firearm regulatory practices of the Founders in 1791 and the Reconstruction generation in 1868 because these are the relevant time periods when the Second and Fourteenth Amendments were written.[8] Specifically, the Supreme Court determined that the firearm regulations of the Twentieth Century put forth by the respondents were simply too recent to constitute a historical tradition and rejected this evidence, relying instead on the common understanding of firearms regulation at the time of the Founding and Reconstruction.[9]

One year post-Bruen, the landscape of the Second Amendment is primed for a novel legal issue that the Supreme Court evaded in Heller, McDonald, and Bruen, continuously passing the ball through dicta and concurrences—the right to keep and bear arms as applied to felons.[10] Born out of a series of high profile assassinations, the federal government’s regulation of a felon’s ability to possess firearms began as recently as the Gun Control Act of 1968, which was expanded by the Brady Handgun Violence Prevention Act of 1994, also known as the “Brady Bill.”[11] Today, a provision of the Brady Bill, 18 U.S.C. § 922(g)(1), makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce, any firearm or ammunition.”[12] Federal courts are split on the validity of § 922(g)(1) after defendants began arguing that federal “felon-in-possession” laws violate the Second Amendment under Bruen.[13]

On June 6, 2023, the Third Circuit en banc determined that § 922(g)(1) violated the Second Amendment as applied to a non-violent offender.[14] Yet just four days prior, the Eighth Circuit ruled in the opposite, finding no constitutional violation.[15] Both Circuits relied on the two-step “historical foundations” analysis created in Bruen, yielding extensively disparate outcomes.[16] Prior to Bruen, in Heller, the Supreme Court explicitly included dicta deferring the analysis of whether the Second Amendment applied to felons.[17] In Bruen, the majority opinion did not address the issue at all.[18] In fact, the concurrences and the dissent in Bruen explain that the majority opinion need not include an analysis of federal “felon-in-possession” laws because they are “presumptively lawful.”[19]

On the contrary, government regulations prohibiting felons from possessing firearms are as recent as the historical evidence put forth by the respondents in Bruen, which the Supreme Court deemed too modern for “consisten[cy] with this Nation’s historical tradition of firearm regulation.”[20] As discussed above, the federal government only began regulating the firearm possession of felons in 1968—decades before the Reconstruction generation and more than a century after the Founding.[21] Further, the “historical tradition” that courts, such as the Eighth Circuit, are beginning to rely on to deny felons their Second Amendment rights is disturbing, including historical regulations that categorically exclude Black and Native Americans, as well as certain religious minorities, from possessing firearms.[22] Specifically, the Eighth Circuit recognized that regulations barring certain races from the right to keep and bear arms “would be impermissible today under other constitutional provisions,” yet included these regulations in its historical tradition analysis regardless.[23] Even the language of “law-abiding” citizen used throughout Bruen is ambiguous, as the sheer breadth and scope of what constitutes a “felony” has dramatically changed since the time of the Founding.[24]

As the number of Bruen challenges grow, it is time for the Supreme Court to define explicitly whether the Second Amendment extends to felons; however, this issue illuminates a Pandora’s box of sub-issues, including, but not limited to, (1) the differences between violent and non-violent felonies, (2) the disconnect between a state felony and a federal felony, (3) the length of time between the original felony conviction and the § 922(g)(1) charge, (4) the amount of time actually served in a jail or prison compared to a purely probationary sentence, and (5) the record of the particular felon.[25] The Supreme Court’s staunch devotion to originalism and the dead-hands of the Founders has brought the Supreme Court to a precipice.[26] Either the Second Amendment is an unmitigated right provided to all Americans based entirely on the historical traditions of the Nation, or it is not.

[1] United States v. Miller, 307 U.S. 174, 178 (1939).

[2] District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008).

[3] Heller, 554 U.S. at 577–78; McDonald v. City of Chicago, 561 U.S. 742, 748 (2010).

[4] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022) (emphasis added).

[5] Id. at 2125.

[6] Id. at 2129–30.

[7] Id. at 2129–30.

[8] Id. at 2132.

[9] Id. at 2138 (“[A]part from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.”).

[10] Range v. Att’y Gen. of the United States, 69 F.4th 96, 98 (3d Cir. 2023).

[11] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213; Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (later codified as amended at 18 U.S.C. § 922).

[12] The federal definition of a “felon” is broader than many state definitions, applying where the potential sentence is more than two years for misdemeanors and more than one year for felonies. 18 U.S.C. § 922(g)(1); 18 U.S.C. § 921(a)(20)(B).

[13] Albert W. Alschuler, Do Convicted Felons Have a Constitutional Right to Bear Arms?, Verdict Justia (June 21, 2023), https://verdict.justia.com/2023/06/21/do-convicted-felons-have-a-constitutional-right-to-bear-arms.

[14] Bryan Range pleaded guilty in 1995 to making a false statement to obtain food stamps, violating Pennsylvania law. Range, 69 F.4th at 98. Range was sentenced to three years’ probation, although his misdemeanor carried a maximum sentence of five years’ imprisonment. Id. Range sought to purchase a firearm for hunting and for self-defense in the home. Id.

[15] Edell Jackson had two convictions for sale of a controlled substance in the second degree from 2011 and 2012. United States v. Jackson, 69 F.4th 495, 501 (8th Cir. 2023). Jackson received a 78-month sentence  for the first conviction and a 144-month sentence for the second conviction. Id. Interestingly, the Eighth Circuit cited approvingly the paneled Third Circuit’s previous decision in Range that the above-referenced en banc Third Circuit overruled. Id.

[16] Alschuler, supra note 13; see also Zak Goldstein, Federal Third Circuit Finds Felon in Possession of Firearm Laws Unconstitutional as Applied to Old, Non-Violent Offenses, Goldstein Mehta, LLC, Blog (June 7, 2023), https://goldsteinmehta.com/blog/federal-third-circuit-finds-felon-in-possession-of-firearm-laws-unconstitutional-as-applied-to-old-non-violent-offenses#.

[17] Heller, 554 U.S. at 626.

[18] Bruen, 142 S. Ct. at 2111.

[19] Id. at 2163.

[20] Michael Luo, Felons Finding It Easy to Regain Gun Rights, New York Times (Nov. 13, 2011), https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html; United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309 (S.D. Miss. June 28, 2023) (order dismissing case).

[21] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213.

[22] Jackson, 69 F.4th at 501.

[23] Id.

[24] Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the U.S., 2002 Wis. L. Rev. 1045, 1060 (2002).

[25] Bullock, 2023 WL 4232309, at *71–75; see also Brian Doherty, Another Judge Chips Away at Laws Barring Felons From Owning Guns, Reason (June 29, 2023, 11:15 AM), https://reason.com/2023/06/29/another-judge-chips-away-at-laws-barring-felons-from-owning-guns/.

[26] Bullock, 2023 WL 4232309, at *71–75.

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19Jan

President Biden’s Executive Order 14006: A Positive but Likely Fleeting Attempt to Address the Injustice of Private Prisons

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By Gabby Korb

President Biden signed Executive Order 14006 banning the renewal of private prison contracts, stating that “[t]his is the first step to stop corporations from profiting off of the incarcerated—incarceration that is less humane and less safe, as the studies show.”[1]  Although this can be seen as a positive step in the fight against injustice in the criminal system, the impact of this executive order is likely more rhetorical than concrete.  The main issue with Executive Order 14006 is that it only focuses on renewal of “Department of Justice contracts with privately operated criminal detention facilities,”[2] which means it only targets federal prisons.  This leaves a massive loophole for immigration detention centers and state and county-run detention centers.  Additionally, because it is an Executive Order, the policy will likely end up as a fleeting attempt to tackle a major issue because it is subject to the whim of future administrations.  These issues beg the question of what the strongest long-term solution for ending the private-prison industry is.  I believe the answer to this question is a Supreme Court opinion ruling private prisons unconstitutional.  This blog post will briefly explore the injustice of private prisons, how Executive Order 14006 attempts and fails to solve these injustices, and potential avenues for finding private prisons unconstitutional.

The existence of private prisons poses major moral and economic issues that undermine American values.  First, studies have shown that inmates held in private prisons are subjected to longer stays because it increases profit for the corporations.[3]  Private-prison corporations themselves admit that “the demand for [their] facilities and services could be adversely affected by . . . leniency in conviction or parole standards and sentencing practices.”[4]  Second, private prisons are known for their atrocious conditions and untrained workers, which saves money and turns a higher profit.[5]  The two largest private-prison corporations, Core Civic and GEO Group, have combined revenues of $3.5 billion as of 2015.[6]  The business model of private prisons is to reap financial gain from keeping people imprisoned at the lowest cost possible.  Third, private prisons profit off exploiting minority communities.[7]  Private prisons gained traction in the 1980’s during the War on Drugs when federal prisons became overcrowded.[8]  It is now a well-known fact that the War on Drugs had a racially motivated and detrimental impact on minority populations that has persisted with the use of private prisons, and minorities continue to be overrepresented in private prisons.[9]  This all means “that people of color are more likely to be arrested, more likely to be convicted, more likely to be placed in a private prison, and less likely to receive parole.” [10]  The ethical, moral, business, and legal implications of allowing prisons to exist that are less safe, depend on racial discrimination, and profit off of keeping citizens in jail is deeply disturbing, and addressing these implications is vital to uphold the values of freedom and equality that American society holds dear.

Executive Order 14006 was issued by President Biden on January 26, 2021, to pursue the administration’s goal of decreasing incarceration levels.[11]  The Executive Order states that “to decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.”[12]  However, this Executive Order is inadequate in pursuing this goal.  It is likely the executive order will be repealed with a change in who occupies the presidency as was previously seen when President Trump repealed a similar Executive Order put forth by the Obama administration. [13]  Additionally, Executive Order 14006 allows major loopholes that prevent the majority of private prisons from being shut down.  One avenue for private-prison corporations to sidestep the effects of the order is to contract with county or state governments and other federal agencies, and there is evidence that these prison corporations have been doing just that since Executive Order 14006 was signed. [14]

Perhaps the most troubling aspect of this executive order is that it fails to encompass Immigration and Customs Enforcement (ICE) detention centers.  Before the Executive Order was enacted, roughly 80 percent of ICE detention beds were owned or managed by private prison corporations.[15]  With the passage of Executive Order 14006, this number will likely increase because private prison facilities shut down by the Order will take on new life as immigration detention centers.[16]  This is evidenced by one large prison company’s financial statements to its shareholders stating that it was “actively marketing and repurposing” prisons that would be phased out by Executive Order 14006.[17]  Therefore, it is clear that Executive Order 14006 is not a solution to the private prison problem.

I believe the most effective way to end the private-prison industry must come from the Supreme Court.  As of now, the Supreme Court has not touched the private-prison industry, but there are a variety of legal arguments that could be used to find it unconstitutional.  First, prisons are likely unconstitutional under the private nondelegation doctrine.  The private nondelegation doctrine forbids core governmental functions from being delegated and prohibits legal enforcement power from being granted outside the government to private groups over which the executive branch does not exercise control.[18]  Imprisonment is a core governmental function because it is the most severe form of punishment that strips citizens of their most basic liberties.  Second, private prisons could be eliminated under substantive due process.  It is widely held that individuals have the fundamental right to bodily freedom, and so any government interference of this right must meet the strict scrutiny standard.[19]  Strict scrutiny requires that infringement of a fundamental right be supported by a compelling government interest, and the government interference must be narrowly tailored to achieving the government’s compelling interest.[20]  Private prisons are not the most narrowly tailored means of incarceration because the government is fully capable of providing and maintaining prisons without help from private companies whose goal is to profit off incarcerated citizens.

Finally, private prisons could be attacked under the Thirteenth Amendment, which is generally known for prohibiting slavery.  The Thirteenth Amendment further reads that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist”. [21]  On its face, this seems to allow slavery in the prison context.  However, the Thirteenth Amendment has been under-litigated in the past century, and a flurry of scholarship suggests that a modern interpretation of the amendment may allow for the termination of for-profit prisons.[22]  It is undeniable that minorities make up higher rates of the private-prison population.[23]  These prisoners are then subject to work in private facilities for longer periods of time where they make pennies per hour.[24]  These inmates serve longer sentences and make a pittance in wages in order for private prison corporations to be profitable.[25]  This violates the spirit of the thirteenth amendment, and a new and contemporary meaning of slavery could evolve with a present interpretation of the amendment.

The private prisons industry has countless negative effects that the federal government has acknowledged, but change has not been swift.  Executive Order 14006 is an act of acknowledgment, but it is unlikely to drive substantial change.  The private prison industry will continue to thrive unless the Court acts.  There are many strong legal paths that allow true change in the criminal justice system by abolishing the private-prison industry, including the nondelegation doctrine, due process, and the Thirteenth Amendment.  An Executive Order will never be enough to create permanent change in the private-prison system. That change will best be served by the Court system.

[1] Luke Bar, BOP Finalizes Moving Inmates from Private Prisons, ABC News ( Dec. 1, 2022, 4:25 OM),

https://abcnews.go.com/Politics/bop-finalizes-moving-inmates-private-prisons/story?id=94281403.

[2] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[3] Josh Sanburn, Privately-Run Prisons Hold Inmates Longer, Study Finds, TIME (June 19, 2015, 11:44 AM EDT), https://time.com/3928184/private-prisons-longer-incarceration/.

[4] Banking on Bondage: Private Prisons and Mass Incarceration, ACLU ( Nov. 2, 2011), https://www.aclu.org/banking-bondage-private-prisons-and-mass-incarceration.

[5]  ACLU, supra note 3.

[6]Kara Gotsch, Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons, The Sentencing Project (Aug. 2, 2018), https://www.sentencingproject.org/reports/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/.

[7] Rina Palta, Why For-Profit Prisons House More Inmates Of Color, NPR ( March 13, 2014 , 7:12 AM ET), https://www.npr.org/sections/codeswitch/2014/03/13/289000532/why-for-profit-prisons-house-more-inmates-of-color.  

[8] andre douglas pond cummings, “All Eyez on Me”: America’s War on Drugs and the Prison-Industrial Complex, 15 J. Gender Race & Just. 417 (2012).

[9] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021), https://lawreview.law.miami.edu/evolution-private-prison-incarceration-united-states/.

[10] Id.

[11] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[12] Id.

[13] Jim Tankersley & Annie Karni, Biden Moves to End Justice Contracts with Private Prisons, NY Times (Jan. 26, 2021), https://www.nytimes.com/2021/01/26/business/biden-private-prisons-justice-department.html.

[14] Lauren-Brooke Eisen, Breaking Down Biden’s Order to Eliminate DOJ Private Prison Contracts, Brennan Ctr. for Just. (Aug. 27,  2021), https://www.brennancenter.org/our-work/research-reports/breaking-down-bidens-order-eliminate-doj-private-prison-contracts.

[15] Id.

[16] Chris Geidner, A Year After Biden’s Executive Order on Private Prisons, Business Is Still Booming, Grid (Jan. 26, 2022), https://www.grid.news/story/politics/2022/01/26/a-year-after-bidens-executive-order-on-private-prisons-business-is-still-booming/.

[17] Id.

[18] Robert Craig & andre douglas pond cummings, Abolishing Private Prisons: A Constitutional and Moral Imperative, 49 U. Balt. L. Rev. 261, 282 (2020).

[19] Salil Dudani, Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences, 129 Yale L.J. 2112 (2020).

[20] Russell W. Galloway, Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. REV. 625, 627 (1992).

[21] U.S. Const. amend. XIII, § 1.

[22] Craig & cummings, supra note 15.

[23] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021), https://lawreview.law.miami.edu/evolution-private-prison-incarceration-united-states/.

[24] Comparing Compensation: What Inmates in Private Prisons Would Otherwise Get Paid, Human Trafficking Search (Nov. 13, 2017), https://humantraffickingsearch.org/comparing-compensation-what-inmates-in-private-prisons-would-otherwise-get-paid/.

[25] Abood, supra note 9; Comparing Compensation, supra note 24.

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22Nov

The Sixth Circuit Joins the Split: Higher Education Freedom of Speech and the Breadth of Academic Freedom Remain in Limbo

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Comments Off on The Sixth Circuit Joins the Split: Higher Education Freedom of Speech and the Breadth of Academic Freedom Remain in Limbo

12 Wake Forest L. Rev. Online 111

INTRODUCTION

No one wonders about the strength of the First Amendment’s speech protections with the same level of intensity as someone who has just uttered an unpopular opinion or statement. Growing up, school children often defend their words by alleging that in the United States, we can say whatever we want because of the First Amendment’s right to freedom of speech. Unsurprisingly, the extent of First Amendment protections is much more complicated than that simple phrase of “freedom of speech.” First Amendment jurisprudence “has been called labyrinthine for good reason. It consists of overlapping doctrines, maddeningly inconsistent rulings and an uncertain future.”[1]

This Comment will examine the scope of the First Amendment for higher education, particularly for professors at public colleges and universities. Can professors insist on calling students pronouns contrary to the students’ stated preferred pronouns despite policies and high-ranking administrators requiring professor to comply? Should the answer to that question depend on the jurisdiction in which the professor is teaching?

In Meriwether v. Hartop,[2] the Sixth Circuit joined the circuit split regarding which freedom of speech test applies to higher-level teacher speech for First Amendment purposes.[3] The breadth of freedom of speech on campuses is a recurring issue and a highly litigated matter.[4] Until there is a consistent test that courts can apply, and that professors can rely upon, the confusion surrounding professors’ protections and academic freedom will continue.

As discussed in Part III, the Supreme Court has determined that Garcetti vs. Ceballos[5] is the controlling test in public employment settings.[6] However, the Supreme Court refused to confirm which test would apply for higher education by merely referencing that Garcetti may not be the adequate test for professors.[7] Since that opinion, there has been confusion and inconsistency among the appellate courts, as some interpreted Garcetti to apply to all employment sectors, including professors at colleges and universities,[8] and some circuits interpreted Garcetti not to apply to professors and therefore apply a different standard instead.[9]

While freedom of speech on campus is commonly analyzed, the focal point is typically on the students’ freedom of speech rights in the classroom or on campus property when engaging in speech such as protests.[10] In contrast, this Comment looks at the extent of public university professors’ rights rather than the rights of students. Specifically, this Comment focuses on higher education, as opposed to teachers at or below secondary education. Given the United States’ tense and ever-changing sociopolitical climate over the last two years, the breadth of the First Amendment is once again at the forefront of people’s minds.[11] Are our First Amendment rights in jeopardy? How far does this protection reach? How much protection is too much?

This Comment consists of six parts. Part I offers a brief overview of the First Amendment and its protections. Part II discusses the public policy of professors holding broad freedom of speech rights and the importance of academic freedom. In Part III, this Comment reviews the controlling cases that embody the freedom of speech tests in public employment. Next, Part IV reviews the inconsistencies in how different circuits are applying these cases to develop freedom of speech tests for higher education at colleges and universities. Further, Part V discusses why the gaps in Garcetti make Pickering the more appropriate standard for professors’ speech and why courts must adopt an academic freedom exception if they are going to apply Garcetti to all employment sectors. Finally, Part VI utilizes the Sixth Circuit’s application of the Garcetti test in its case Meriwether v. Hartop to demonstrate why the Pickering test is preferable and why the Supreme Court must step in to clarify the appropriate standard.

I. Background: First Amendment

The First Amendment not only guarantees freedom of speech, press, and religion, but also, it is a symbol of independence in the United States.[12] When the United States achieved independence from England, the Bill of Rights deliberately included the freedom of speech as the “first constitutional guarantee” and was later “ratified as part of the Constitution” along with the rest of the Bill of Rights on December 15, 1791.[13]

Freedom of speech has rich roots in the United States, and this constitutional provision has been “widely copied and admired” in other countries and served as a catalyst for “the subsequent progress towards freedom of speech” elsewhere.[14] The freedom of speech was at the forefront of the founding fathers’ minds at the time of independence because there was no such guarantee in Britain and the founders were framing a democratic government for the United States.[15] Under English law, which governed the United States prior to independence, there were exceptions to the freedom of speech, and there was no “positive guarantee of freedom of speech” except under the parliamentary privilege.[16]

After Gitlow v. New York,[17] a milestone case for American jurisprudence, the First Amendment’s protection extended to all fifty states through the incorporation doctrine of the Fourteenth Amendment, which “protects the citizen against the State itself and all of its creatures.”[18] Not only is the First Amendment symbolic of the United States independence from Britain, but also, it is crucial to this country’s democratic form of government. Without the explicit guarantee of the freedom of speech, no other fundamental human right can be advocated for, no democratic system of government or constitutional system of government would function properly, and “no potential for exposure of wrongdoing, particularly in high places,” would be permitted.[19]

Freedom of speech protects the political debate on which a democracy survives.[20] Without the freedom of speech and resulting political debate, “there can be no check on potential tyrants and, so, no guarantee of constitutional government and no guarantee of maintenance of freedom of speech.”[21] In a well-known Supreme Court First Amendment case, the Court stated that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, or other matters of opinion or force citizens to confess by word or act their faith therein.”[22]

Aside from applying in all fifty states, the First Amendment has wide coverage in other senses as well. The First Amendment protects more than just verbal speech; it also protects symbolic speech, which is “nonverbal, nonwritten forms of communication.”[23] Importantly, the First Amendment protects against content discrimination, which prohibits restrictions on people speaking on certain subject matter.[24] While content discrimination is disfavored, viewpoint discrimination is disfavored even more because it restricts particular ideas and opinions within certain subject matter.[25]

II. The Intersection of the Freedom of Speech and Academic Freedom–Public Policy Requires Significant Speech Protections for Professors

Since education and academia contribute significantly to public debate, a lack of academic freedom threatens citizens’ ability to debate controversial issues.[26] Professors hold a unique role in society because they are responsible for encouraging introspection and disseminating information, ideas, and knowledge upon citizens so that the public can benefit from the wealth of knowledge and progress as a country. Notably,

teaching, scholarship and most, if not all, research, involves the comparatively wide dissemination of information, it is inextricably bound up with speech. Since the pursuit of truth itself involves discussion, any restriction on freedom of speech is a restriction on the pursuit of truth. Consequently, restriction of freedom of speech automatically involves a restriction of academic freedom, except where academics are given some special freedom of speech, not available to members of society in general.[27]

Appropriately, teaching, scholarship, and research are identified as the core duties of professors,[28] and these are the core duties that academic freedom seeks to protect. The unique role of professors, and the unique difficulties and situations professors face, require safeguards; this concept led to what is commonly referred to as “academic freedom.” Academic freedom is premised “on the idea that the free exchange of ideas on campus is essential to good education.”[29] It has been defined as the “freedom of a teacher to discuss or investigate any controversial social, economic, or political problems without interference or penalty from officials, organized groups, etc.”[30]

In 1915, the American Association of University Professors (AAUP) drafted the Declaration of Principles on Academic Freedom and Academic Tenure.[31] In this Declaration, academic freedom was “divided into ‘freedom of inquiry and research; freedom of teaching within the university or college; and freedom of [extramural] utterance and action.’”[32] A fourth principle was later added: freedom of intermural utterance and action, which entails the freedom to participate in and comment on how a school is administered.[33] However, the AAUP “did not advocate for unlimited faculty rights.” Instead, “academic freedom was tied to professional duties and responsibilities.”[34]

Because academia is “disproportionately concerned with new ideas and innovations, all of which inevitably challenge existing views,” education and academia are particularly and significantly “vulnerable to any lack of freedom of speech.”[35] This vulnerability arises because pre-existing “entrenched interests” are threatened by, and therefore resist, “the challenge posed by new ideas.”[36] In the United States, our public education system, “if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.”[37]

The United States’ prohibition on content and viewpoint discrimination is essential to the academic setting because professors must be able to lecture on a variety of different viewpoints and ideologies, even if the viewpoints and opinions are not the most popular or if the majority of the students in the classroom do not agree. That is the essence of a debate and a democratic form of government. Freedom of speech and academic freedom are necessary to a “proper political debate.”[38]

Beyond the importance of a proper political debate, the intersection of freedom of speech and professors’ academic freedom is important for a plethora of other developments, progressions, and civic functions. For example, until the seventeenth century, it was commonly taught in schools that the Sun revolved around the Earth.[39] Without the freedom to challenge viewpoints and lecture on alternative theories and ideologies, societies would make little progress.[40] This was shown to be true during the “anti-revolution movement of the 1920s” and the Scopes trial.[41]

Professors’ speech protections must be closely guarded given the unique role that professors hold, which can only be properly performed if professors know that they are protected by the First Amendment. Removing professors’ freedom of speech rights runs the risk of professors switching occupations if they are subjected to lawsuits or employment termination each time they lecture to students or publish an academic article as encouraged by universities. Aside from the United States recognizing the inherent value of education, education leads to progress and development, which benefits society.[42] However, this cannot come to fruition if professors are changing careers out of fear.

Without the freedom of speech, thoughts would be stagnant and cease to progress in many areas, including academically, scientifically, politically, and even socially. However, academic freedom is not absolute protection for professors. Following the thought process of the AAUP, professors must “act professionally in their scholarly research, their teaching, and their interactions with students and other faculty.”[43] This is ensured by universities’ policies and procedures that “safeguard both students and the academic integrity of the institutions and disciplines.”[44] Acting professionally has benefits for the reputation and integrity of the larger college or university, and it also contributes to the professor’s reliability, authority, and believability from the perspective of the student. This concept that academic freedom is not absolute will be addressed later when analyzing the facts of Meriwether.

III. Pickering, Connick, and Garcetti–The Focal Cases That Have Developed the Freedom of Speech Test

While the contours of the freedom of speech have been developed through a number of influential cases, this Comment will focus on three main cases that lay the foundation for the freedom of speech, especially in the public employment context. It is largely from these three cases that the different appellate circuit courts derive the test that they apply to professor speech in higher education.

In Pickering v. Board of Education,[45] a high school teacher was fired for submitting a letter to a local newspaper that criticized the school.[46] The Supreme Court found that the teacher’s freedom of speech rights were violated because “teachers and other public employees do not relinquish their First Amendment rights to comment as citizens on matters of public interests.”[47] Thus, Pickering established a right to comment on matters of public interest, and it further created a balancing test between the teacher’s freedom of speech interests and the employer’s interest in regulating its employees.[48] The Court reasoned that “teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of schools should be spent.”[49] While Pickering established the governing test, the opinion did not clearly specify what constituted a matter of public concern.

Fifteen years later, the Supreme Court elaborated on the test for whether speech was on a matter of public concern in Connick v. Myers.[50] In Connick, an assistant district attorney was fired for distributing a questionnaire around the office regarding morale within the office.[51] The Supreme Court established that when determining whether “an employee’s speech addresses a matter of public concern,” the courts must look at the “content, form, and context of a given statement.”[52] In Connick, the content, form, and context were unrelated to “any matter of political, social, or other concern to the community.”[53] The speech was on a matter of personal interest, not public interest, and was not protected by the First Amendment.[54] Thus, Connick provided clarity to the freedom of speech test given in Pickering: courts must look at the content, form, and context for a concern to the community, and the interest must not be personal.

After Pickering and Connick, the prevailing First Amendment test was still the two-part Pickering test, which requires that (1) an employee speak about a matter of public concern, and (2) a balancing of the employee’s and employer’s interests.[55] Connick supplemented the first requirement by adding that when determining whether a matter is of public concern, the court should look at the content, form, and context of the statement and whether it was related to any political, social, or other concern to the community.[56] A personal interest would not suffice. While Pickering was bolstered by Connick and other First Amendment cases, this progressing foundation was rattled by the Garcetti opinion.

In Garcetti v. Ceballos, the Supreme Court added an additional, third step to the freedom of speech analysis in Pickering for employment contexts, namely that the public employee must be speaking outside of her official, professional duties for the speech to be protected.[57] Official duties include those that the employee is “paid to perform.”[58] When one speaks outside of one’s official duties, they are speaking as citizens and the speech is protected.[59] This additional third step is where the circuits diverge for the freedom of speech test that is applied at the university level.[60]

In Garcetti, a deputy district attorney wrote a memorandum to his supervisors regarding a legal issue.[61] The Supreme Court held that this speech was not protected because Garcetti was acting within his duties as deputy district attorney and was not speaking as a citizen.[62] By requiring this third prong for employees, “the Supreme Court suggested that First Amendment protections do not attach insofar as individuals are speaking as employees rather than as citizens.”[63] Importantly, the Garcetti Court expressly reserved judgment as to whether the newly espoused third prong would apply in a public university setting.[64] This was in response to Justice Souter’s dissenting opinion that the “official duties” rule would “imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties.’”[65] Justice Souter’s dissent recognized that “universities occupy a special niche in our constitutional tradition” given the importance of public education and the “expansive freedoms of speech and thought associated with the university environment.”[66] Thus, the Court left the underlying question unanswered—does Garcetti apply to public universities? Is there an academic freedom exception? If Garcetti doesn’t apply, is Pickering the appropriate standard? Given this gray area, circuits have applied different First Amendment tests to university professors’ speech.

IV. Current Circuit Split—Inconsistent Freedom of Speech Test Applied to Professors Depending on the Jurisdiction

The Sixth Circuit has joined the circuit split surrounding the prevailing test for professor speech, which puts pressure on the Supreme Court to clarify the confusion and establish a consistent test across the United States for this Constitutional guarantee. The Fourteenth Amendment incorporates the First Amendment so that it applies to the states, and it should apply evenly to the states.[67] The constitutional guarantees should not be more protective in one state than another state. The United States operates on the premise that “all men are created equal”;[68] this should mean that citizens in New York are entitled to the same protections as the citizens in Texas, Maryland, or any other state. Since the First Amendment for professors has not yet achieved that level of consistency, this Comment will now turn to the different approaches that the circuits have adopted for professor speech at public universities and colleges.

In Weintraub v. Board of Education,[69] the Second Circuit adopted the Garcetti test, which adds the third prong to Pickering and requires one to speak as a citizen outside of one’s official job duties to be protected by the First Amendment. Similarly, the Seventh Circuit in Renken v. Gregory[70] hesitantly applied the Garcetti test and determined that a professor was acting within his “teaching, research and service responsibilities” when he “took issue” with the way the funds from a grant were to be allocated by the university.[71]

Alternatively, the Ninth and Tenth Circuits have taken approaches similar to one another and have chosen Pickering as the appropriate standard for professors. In Demers v. Austin,[72] the Ninth Circuit held that “Garcetti does not apply to ‘speech related to scholarship or teaching’” and rather Pickering is the test that applies.[73] Similarly, the Tenth Circuit held that the appropriate standard is the test articulated in Pickering for when “a professor was claiming his academic freedom was violated.”[74]

V. Why Pickering is the Superior Freedom of Speech Test Over Garcetti for Securing and Maintaining Academic Freedom

While speaking as a citizen and outside of an employee’s official duties may be an appropriate standard for other employment settings, it directly contradicts the values of the public education system. Teaching, scholarship, and research are official duties of a professor,[75] which means that while exercising these functions, professors would not be speaking as citizens. These are the functions professors exercise that we want to protect as a society.[76] The Garcetti third prong would heavily favor college and university administrations, while leaving professors to wonder about the extent of their speech rights.

Given our country’s history and tradition of valuing not only the freedom of speech, but also our public-school system, Pickering is a better test for public universities. Pickering does not require that the professors prove that they were speaking as citizens, so the core functions of teaching, scholarship, and research would still be protected by the First Amendment.

If Garcetti is to be the appropriate standard, then there must be an academic freedom exception. Otherwise, professors at public universities will fear each lecture.[77] Further, if our nation does not protect professors from either losing their job or from facing litigation, then professors will actively seek out jobs at private universities, or jobs outside of higher education altogether, and our public education system will deteriorate. “The professor must be assured beforehand that she is free to speak, and heightened First Amendment scrutiny gives her that assurance.”[78]

When creating an exception to the third prong of the Garcetti test, it is often hard to decide where to draw the line. What is academic freedom? Would the academic freedom exception apply to all university employees, or just those who teach doctrinal courses? What about employees at trade schools? Would this exception apply to an individual who gives a guest lecture? Does the audience of the speech matter in determining whether the exception would apply?

Pickering is a more desirable test for professors at colleges and universities because these ambiguous questions do not need to be answered since there is no third prong and thus no need for an exception. Given the confusion and inconsistencies surrounding the circuit courts regarding university speech already, there is a need for clarity. Creating a Garcetti exception would likely create more confusion and leave these questions unanswered, leading to even more division between the circuit courts. The Pickering framework is clear—the professor must speak on a matter of public importance and pass the balancing test.

However, for the courts that recognize the Garcetti test for all public employment sectors, including higher education, it is essential that those courts recognize the public policy of academic freedom and subject professors at colleges and universities to a different freedom of speech test than is used for other employment sectors. It is essential to have a system that protects professors. Not only are professors speaking daily for lectures but they also are required to publish a large quantity of material to advance their career and be considered for tenure.[79] While academic freedom is “broad and permissive,” the existing case precedent, including Pickering, Connick, and Garcetti, “do not adequately protect academic freedom.”[80]

At the university level, tenure creates even more academic freedom and job security for professors, yet it is difficult to achieve given the amount of scholarship that professors are required to produce in order to achieve tenure status.[81] Despite the pros and cons of the tenure system, tenure is another means by which academic freedom can be provided. Tenure “does not grant a teacher a job for life but simply protection from arbitrary firing and retribution; it safeguards academic freedom; it decreases turnover and creates a more stable learning environment for students.”[82] Since the First Amendment is needed to protect the untenured professor who is publishing the amount of material that is required to achieve tenure—without the fear of retribution for the words published—the First Amendment and the protections from tenure go hand in hand for academic freedom.

VI. The Sixth Circuit Case Meriwether v. Hartop Highlights the Issue of Defining the Breadth of an Academic Freedom Exception & Which Functions Must be Protected as Unique Roles of a Professor

Meriwether provides further insight on why Pickering is the more appropriate test for professors’ speech. Looking at the current circuit split regarding whether Pickering or Garcetti applies, the Sixth Circuit is one which turns to the academic freedom exception to Garcetti, and therefore, the concept of “academic freedom” must be analyzed closer. Attempting to pinpoint—and then apply—exactly what encompasses academic freedom creates more ambiguity. The issue of what constitutes academic freedom, the scope of that freedom, and which academic duties we are trying to protect is essential. It is no surprise that the circuits have varied in the way that they consider different roles and duties of university professors.

The core duties of a professor, such as research, scholarship, and teaching, should be included in academic freedom because these duties directly involve the dissemination of ideas and the passing on of knowledge and viewpoints to students. These have been the core duties of professors for generations. The Meriwether case has, however, sparked a debate over whether administrative duties such as classroom management should receive special First Amendment rights under the academic freedom ideal as the other core duties enjoy. Are administrative duties in the classroom unique to academia? Does a professor’s method for roll call at the beginning of class impact the dissemination of information? How does a teacher’s administrative duties differ from the administrative duties of other professions? These questions direct one to look at the Sixth Circuit’s decision in Meriwether and the implications that the scope of the academic freedom can have.

A. Review of the Sixth Circuit Case, Meriwether v. Hartop

In Meriwether, the plaintiff Nicholas Meriwether, a philosophy professor at the public college Shawnee State University (“Shawnee State”), was terminated from employment for refusing to call a transgender student by the student’s preferred pronouns given the professor’s conflicting religious beliefs.[83] Shawnee State had a standing policy that required professors to call students by their preferred pronouns.[84] The student was enrolled in Meriwether’s Political Philosophy course.[85] Meriwether addressed students in class by “Mr.” or “Ms.” and improperly called the student “sir.”[86] The student corrected Meriwether after class and requested to be called by female pronouns.[87]

Since Meriwether refused to comply with Shawnee State’s policy regarding pronouns, the Dean of the College of Arts and Sciences told Meriwether to eliminate sex-based references for all of the students in the class, not just the one transgender student.[88] Meriwether resumed calling all of the other students by “Mr.” or “Ms.” but singled out the transgender student and called the student by her last name.[89] Soon after, Meriwether accidentally called the student “Mr.” and then proceeded to call the student by her last name for the remainder of the semester.[90] Meriwether received multiple warnings and visits throughout the semester demanding that he follow the school policy and call the student by female pronouns or stop using gender-related titles for all students, thus treating the students in the class equally.[91]

B. Garcetti Academic Freedom Exception Applied to the Facts of Meriwether

The Sixth Circuit joined the Fourth,[92] Fifth,[93] and Ninth[94] Circuits and determined that there is an academic freedom exception to Garcetti; therefore, the third prong, which was developed in Garcetti, does not apply to higher-level education in the Sixth Circuit.[95] As previously mentioned, without an exception, professors’ speech would not be protected because their lectures and other core functions of teaching, scholarship, and research are directly within their ordinary, official duties and therefore would not be citizen speech. For that reason, the Sixth Circuit incorporates an academic freedom exception to award professors the guarantees of the First Amendment. The breadth of academic freedom and what actions contribute to the core functions of teaching, scholarship, and research are at debate.

Shawnee State argued that a professor’s use of titles and pronouns is not protected under the academic freedom exception to Garcetti because it is unrelated to the “substance of classroom instruction.”[96] The use of pronouns and titles was not the subject of the course, nor was this speech used for an academic purpose. The Meriwether court, however, stated that gender identity is a “matter of public concern that ‘often’ comes up during class discussion in Meriwether’s” courses.[97] Despite this fact, there was no showing that pronouns and titles are a substantive topic of discussion for the current course that the transgender student was taking.[98] The Meriwether court held that the exception to Garcetti for academic freedom “covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not.”[99]

Therefore, the Sixth Circuit answered the scope of the academic exception question with a broad answer: it covers almost everything, regardless whether the questioned speech was contents of a lecture. This broad approach gives professors a degree of immunity that is unwarranted for functions outside of teaching, scholarship, and research. In Meriwether, the way that the professor called roll or addressed the students was not the subject of his class or a lecture, and professors are no different from other employees in other employment sectors in how they address colleagues, co-workers, or clients.

Professors deserve special attention given their unique role in society—that is why either Pickering or Garcetti with an academic freedom exception is an appropriate test. If the professor is not performing tasks required by this unique role, however, such as when the professor is not performing his or her core duties, then the professor is no different than an employee or worker in a different employment sector. There should not be special treatment. If the professor’s speech is not unique to a function that academic freedom seeks to protect, then the professor should be subject to the third prong in Garcetti, like the Supreme Court ruled was the appropriate test for all other public employees.

For example, simple administrative tasks that are not meant to communicate a lesson, ideology, or knowledge are not unique to a professor. All employment sectors deal with administrative functions; this is not unique to higher education. Therefore, if a professor is performing an administrative task rather than a task that furthers education or academia, then Garcetti is the more appropriate test.

Interestingly, the Meriwether court addresses some instances where the professor’s classroom speech falls outside of the Garcetti exception because it is a “non-ideological ministerial task” not protected by the First Amendment.[100] One example that the Sixth Circuit includes as a ministerial task is a professor calling roll before class begins.[101] The court says that the facts of Meriwether differ from calling roll because pronouns “carry a message.”[102]

However, it is highly questionable whether there is any difference between calling on individual students during the class period and calling roll at the beginning of class—a task that the court agreed is not protected speech. A professor could call roll at the beginning of the class by using pronouns as well, such as calling the students “Mr.” or “Ms.” while calling roll. However, under the Sixth Circuit’s reasoning, only calling roll is speech not protected by the First Amendment.[103] Whether using pronouns at the beginning of class or during class, these are administrative functions. To hold otherwise is splitting hairs. Many, if not all, employment sectors require communication between colleagues which implicates the use of pronouns or titles. This is not unique to a professor.

Further, the court differentiates the use of pronouns during the class from calling roll at the beginning of class because the use of pronouns “carr[ies] a message.”[104] It is questionable whether the use of pronouns during the class when calling on a student carries a message. If the professor was intentionally using pronouns or titles to further teaching, scholarship, or research, then pronouns can certainly carry a message. To provide one example, this may be the case in a gender studies course. To qualify for the academic freedom exception, the speech should convey an academic message, not just a message in general. Arguably all speech conveys a message—that does not mean that a professor can get away with uttering anything.

While pronouns can certainly convey an academic message, they can also be a mundane part of life and way that people communicate. There is not necessarily an academic message conveyed every time pronouns are uttered. The academic freedom exception is meant to shield professors so that they can adequately contribute to our public education system. It is not to serve as an absolute shield for tasks and functions that do not serve the goal of academia.

While the Sixth Circuit joins the Ninth Circuit in creating an academic freedom exception to Garcetti, it does not necessarily join the Ninth Circuit in what activities constitute academic freedom. The Ninth Circuit affirmed Hong v. Grant,[105] which held that the administrative functions of a professor were subject to the third prong of Garcetti—whether the professor was acting within his official duties—and therefore found that the professor’s administrative concerns were not protected by the First Amendment because they were in the course of his official duties.[106] The court reasoned that to hold otherwise for administrative functions “would require endless judicial supervision of the decisions university administrators must make on a daily basis to ensure the efficient and effective management of their institution.”[107] The Ninth Circuit therefore recognizes that administrative acts and speech do not carry the same public interest as the core duties of professors—teaching, scholarship, and research—and that universities and colleges have the right to oversee other functions for the sake of efficiency and effectiveness.

As previously mentioned, academic freedom is not an absolute protection. Michael LeRoy conducted research that shows that many professors may believe that “all speech in their classrooms, publications, and public announcements is constitutionally protected”; however, academic freedom is narrower than that.[108] Even if one is protected by the freedom of speech, the degree of protection “has not been specified and the First Amendment protection may be overridden if the speech causes disruption.”[109] It is difficult to decide where to draw the line for an academic freedom exception to the Garcetti test, but nonetheless, a line must be drawn.

C. Speech on a Matter of Public Concern Applied to the Facts of Meriwether

Without the ambiguous academic freedom exception to Garcetti, which adds an additional, unsettled step to the analysis, the test for whether professor speech is protected is a lot more straightforward. Regardless of whether a court is applying Pickering or Garcetti, the other steps from Pickering must still be satisfied, including that the speech be on a matter of public concern. Regarding whether the professor spoke on a matter of public concern, the Sixth Circuit says that the “pronoun debate is a hot issue” and when Meriwether “waded into the pronoun debate, he waded into a matter of public concern.”[110] Although gender identity and the use of conforming pronouns are matters of public concern, that was not the subject matter of Meriwether’s lecture nor was Meriwether intending to enter that particular debate on some of the occasions, as he admitted that he used the wrong pronouns by accident.[111] This shows that Meriwether was not intending to speak on an ideological matter at all but rather was exercising a nonideological administrative function, which as mentioned above should not be included in the academic freedom exception.

Further, looking at the Connick addition to the Pickering rule, the content of the speech must be on a matter of a public concern and not a private concern. The Sixth Circuit recognized this rule in Hardy v. Jefferson Community College,[112] when the court provided that when determining whether the speech was a matter of public concern, it must “determine ‘the point of the speech in question . . . [because] [c]ontroversial parts of speech advancing only private interest do not necessarily invoke First Amendment protection.’”[113]

Meriwether was speaking on a matter of private concern. He was not advocating for the general population nor on behalf of the school or any entity larger than himself. Meriwether had a private religious objection to a student’s preferred pronouns. This was a private belief held by the professor and was unrelated to the course curriculum or any teaching, scholarship, or research for that matter. Given the Supreme Court rule from Connick, Meriwether’s private religious objection was not a matter of public concern.

D. Balancing Test – Applied to the Facts of Meriwether

Lastly, under either the Garcetti or Pickering freedom of speech test, the final step to the analysis is a balancing test between the professor’s freedom of speech interests and the university’s interest in regulating its employees. There are often strong arguments on both sides. Here, the professor argues that he has interests given the history of protecting teacher speech and sharing different viewpoints in the classroom.[114] Alternatively, Shawnee State argued that it has an interest in stopping discrimination against transgender students.[115] The Sixth Circuit determined that the balancing test weighed in favor of Meriwether.[116]

The Sixth Circuit reasoned in the opinion that

[i]f professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”[117]

The Sixth Circuit’s reasoning is arguably an alarmist approach and exaggerates the effect that university policies and procedures have on the content of a professor’s lecture or the ideologies that the professor is allowed to share with the students.

First, the court’s hypothetical is premised on a professor losing First Amendment rights when teaching. It is arguable whether Meriwether’s use of pronouns during the class constitute “teaching.” Second, this reasoning confuses the difference between restricting speech and compelling speech. Here, Shawnee State merely restricted speech that was not related to the content of the lecture due to conflicting university policies. Shawnee State further gave Meriwether the option to call all of the students a gender-neutral option. It did not even require Meriwether to use the student’s preferred pronouns, merely that he did not single out the one student.

While acknowledging that the First Amendment is a bedrock principle of our Constitution and an important guarantee to protect, Shawnee State was not compelling speech. This is evidenced by the numerous options that the professor was given to avoid compelling his speech or compelling him to conform to a particular ideology or viewpoint. Here, Shawnee State was attempting to forbid certain speech, which is different than attempting to compel certain speech. As mentioned above, academic freedom is not an absolute right for professors, and it yields to the responsibility of the professor to act professionally and abide by university policies and protocols.

1. Balancing Test—Common Arguments for the Professors

As the arguments are looked at in further detail, the task of weighing the interests becomes more difficult. Professors commonly argue in freedom of speech cases that their constitutional guarantees and protections in the academic setting are crucial for the marketplace of ideas and for various ideologies to be discussed, learned, and fostered.[118] The United States strongly prohibits viewpoint discrimination, which prohibits only certain viewpoints to be discussed about a certain topic.[119]

University professors hold a unique role that must be protected given their task of educating not only their students but also the general public on “their area of expertise.”[120] Professors “directly contribute to ‘free and open debate’ on a myriad of scientific, political, religious, sociological, and philosophical matters” so that the public can make informed decisions on important matters.[121]  This civic and humanitarian duty to educate the public depends on the guarantees of the First Amendment “to protect the teaching and scholarship that makes this education possible.”[122] It is for this reason that some believe the First Amendment, which protects freedom of thought and expression for all, is most important for those who accept the role as a professor.[123] In addition to the importance of protecting the professors from adverse actions or retaliation in the workplace due to their speech, it is equally important for education and academia that professors are free to utter uncensored words to their students.

Some argue that the Pickering balancing test should “weigh decidedly” for the professor because the universities’ interests are “so minimal” in comparison to the strong First Amendment interests of the professors.[124] However, universities have strong corresponding interests as they must manage a large group of people and create an environment that is conducive to learning and education in the first place. Further, it is an overgeneralization to say that the universities’ interests are “so minimal.” Universities are responsible for the well-being of other students and faculty, which is hardly a minimal task. Therefore, a balancing test that weighs decidedly for the professors would essentially eliminate the balancing test for freedom of speech in the upper-level educational setting, despite the strong interests that universities have as well.

2. Balancing Test—Common Arguments for Colleges and Universities

Universities must ensure that their classrooms welcome the marketplace of ideas in a way that is conducive to learning. While our court system has a preference to rule in favor of the professor in freedom of speech cases,[125] this is not a blind analysis. There are instances where the school’s interests will outweigh the professor’s interests, such as where a professor violates the student’s constitutional rights or unlawfully discriminates against students.

One such instance where a professor may lose on the balancing-test prong of the analysis is when the professor’s speech creates a hostile environment in the classroom. Professors do not differ from other employment sectors in that they are not immune from the universities’ policies that protect the students and other co-workers.

Additionally, a hostile environment in the classroom and academic setting “disrupts the learning process itself.”[126] The Seventh Circuit recognized this reasoning in Piggee v. Carl Sandburg College[127] after a professor gave a gay student in the class “religious pamphlets on the sinfulness of homosexuality.”[128] The Piggee court reasoned that the professor’s speech “was not only not relevant to her job but in fact might have impeded her ability to work with students.”[129] The First Amendment is not a protective shield that permits “professors to use profane, racist, or sexist language without any legitimate academic justification.”[130] Piggee shows that professors must maintain their ability to work with students and other faculty, and they cannot say things that will impede that ability. In other words, the First Amendment does not protect all speech at all times.

Applied to an educational fact scenario, a public university or college has the right “to protect its academic integrity by disciplining professors who disregard professional standards, ignore the curriculum, or violate students’ rights.”[131] This discipline and restriction on speech is permissible by the university “assuming [the discipline] is pursuant to precisely tailored regulations . . . because the university has overriding interests in preventing such behavior.”[132]

Additionally, universities and colleges have an interest in harmony and positive working relationships between various faculty and administrators. The Sixth Circuit recognized this interest in Hardy when it admitted that the speech at issue in Hardy had “the effect of creating disharmony between Hardy and the College administrators.”[133] Additionally, the Sixth Circuit has considered factors such as federal funding and the effect that retaining a professor would have on enrollment.[134] In Bonnell v. Lorenzo,[135] the Sixth Circuit suggested that “a fear of a loss of federal funding was a legitimate consideration” for overriding a professor’s First Amendment rights.[136] While concerns over enrollment at the college due to retaining a professor is another common argument for schools, the Sixth Circuit dismissed that argument in Hardy.[137]

Professors must adhere to accepted professional standards. These standards and restrictions on speech apply in settings broader than just the professor’s interaction with students in the classroom. Professors who plagiarize academic and scholarly papers “may be disciplined for a gross violation of professional ethics.”[138]  Similarly, “grossly inaccurate speech about the Holocaust, for example, could be cause for dismissing a historian for incompetence.”[139]

Further, universities have an interest in protecting the students who attend their program, many of whom live on campus.[140] There is an increased risk of suicide associated with transgender students.[141]

CONCLUSION

As displayed above by the circuit splits over (1) the differing tests for professors’ freedom of speech rights and (2) the various ideas regarding what is encompassed in an academic freedom exception, there is a need for uniformity and consistency. Universities and professors are both looking to the Supreme Court to establish a uniform test for professors’ freedom of speech rights and the role that academic freedom plays in determining those freedom of speech rights. Universities need to know what speech can be disciplined, and professors need to know what speech can be uttered.

Constitutional rights should not change over the lines of a state border. The Supreme Court has the power and authority to review a case like Meriwether v. Hartop and provide clarity on this issue across all fifty states. Professors hold a unique role in society and that unique role should be protected. The marketplace of ideas and differing ideologies taught and shared in the classroom are of great importance—especially since the United States is a country that values the freedom of speech and curses content or viewpoint discrimination.

That said, professors do not have an absolute shield to say whatever they deem fit. The Garcetti test for the freedom of speech in employment settings does not fit the role of professors well because of the importance of academic freedom. Professors must be awarded protections in teaching, scholarship, and research, or professors will seek other occupations given the constant fear of litigation or an adverse employment action. The academic freedom exception should not, however, protect professors from administrative duties, or from speech that has nothing to do with what they are teaching—such as calling roll or calling on a student during the class. Administrative tasks are not unique to education and academia; a professor does not differ from other employment sectors in that they must communicate with others in a professional fashion. Therefore, while academic freedom and professors’ confidence in their freedom of speech rights are essential, professors should not be protected from an academic freedom exception to Garcetti for tasks that are not unique or crucial to teaching, scholarship, or research.

                                                                      Hanna Diamond

  1. . David L. Hudson, The First Amendment: Freedom of Speech § 2:2 (2012). ↑
  2. . 992 F.3d 492 (6th Cir. 2021). ↑
  3. . Id. at 509. ↑
  4. . Jack Karp, Vaccines, Tuition, Race: The Litigation on Law Schools’ Radar, Law 360 (August 30, 2021, 12:02 PM), https://plus.lexis.com/newsstand#/law360/article/1416940. ↑
  5. . 547 U.S. 410 (2006). ↑
  6. . Id. at 426. ↑
  7. . Id. at 425 (stating “[w]e need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching”). ↑
  8. . See, e.g., Evans-Marshall v. Bd. of Educ., 642 F.3d 332, 342 (6th Cir. 2010). ↑
  9. . See, e.g., Demers v. Austin, 746 F.3d 402, 412 (9th Cir. 2014). ↑
  10. . See, e.g., Widmar v. Vincent, 454 U.S. 263, 264–66 (1981). ↑
  11. . For example, First Amendment issues have been implicated in recent presidential campaigns, the insurrection at the United States Capitol, COVID-19 awareness, and the Black Lives Matter movement. See, e.g., Knight Foundation, Future of the First Amendment 2022: High Schooler Views on Speech Over Time (2022), https://knightfoundation.org/wp-content/uploads/2022/05/2022_Future-of-the-First-Amendment_FINAL.pdf. ↑
  12. . For more information on a full review of the First Amendment, see generally Hudson, supra note 1. ↑
  13. . A. Alun Preece, Academic Freedom and Freedom of Speech, 16 Bull. Austl. Soc. Leg. Phil. 32, 35 (1991). ↑
  14. . Id. ↑
  15. . Henry L. Baumann & Jay S. Kogan, Would We Have a Fairness Doctrine if Marconi had Lived Before the Constitutional Convention?, 1986 Det. Coll. L. Rev. 947, 947. ↑
  16. . Preece, supra note 13, at 36. While no “positive guarantee” existed, “[e]nglish law proceed[ed] generally on the assumption that anything may be said or done, which is not specifically prohibited by law.” Id. ↑
  17. . 268 U.S. 652 (1925). ↑
  18. . W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). ↑
  19. . Preece, supra note 13, at 56. ↑
  20. . Id. at 33. ↑
  21. . Id. ↑
  22. . Barnette, 319 U.S. at 642. ↑
  23. . Ronald Kahn, Symbolic Speech, The First Amend. Encyc. (2009), https://www.mtsu.edu/first-amendment/article/1022/symbolic-speech (providing examples of symbolic speech such as “flag burning, wearing arm bands, and burning of draft cards”). ↑
  24. . Hudson, supra note 1. ↑
  25. . Id. at § 2.2 (stating that “[c]ontent discrimination is considered bad, but so-called “viewpoint discrimination” is considered even worse”). ↑
  26. . Preece, supra note 13, at 33. ↑
  27. . Id. at 32. ↑
  28. . Id. See also Mark Strasser, Pickering, Garcetti, & Academic Freedom, 83 Brook. L. Rev. 579, 605 (2018) (stating that “[a]t the university level, research is often an important component of a professor’s job responsibilities”). ↑
  29. . Academic Freedom, American Federation of Teachers https://www.aft.org/position/academic-freedom (last visited Sept. 20, 2022) [hereinafter Academic Freedom]. ↑
  30. . Academic Freedom, Random House Unabridged Dictionary (2022). ↑
  31. . Richard K. Neumann Jr., Academic Freedom, Job Security, and Costs, 66 J. Legal Educ. 595, 596 (2017). ↑
  32. . Id. at 596–97. ↑
  33. . Id. at 597. ↑
  34. . Michael H. LeRoy, How Courts View Academic Freedom, 42 J.C. & U.L. 1, 10 (2016). ↑
  35. . Preece, supra note 13, at 33. ↑
  36. . Id. ↑
  37. . W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). ↑
  38. . Preece, supra note 13, at 33. ↑
  39. . Nola Taylor Tillman, Nicolaus Copernicus Biography: Facts & Discoveries, Space (Jan. 17, 2022), https://www.space.com/15684-nicolaus-copernicus.html. ↑
  40. . See generally Kenneth Garcia, Religion, Sectarianism, and the Pursuit of Truth: Reexamining Academic Freedom in the Twenty-First Century, AAUP J. Acad. Freedom, 4 (2014) (discussing the tension between religion and academia; “Religious strife had been a cause of war and division in Europe for centuries. In a pluralistic society such as that of the United States, with no established religion, sectarian efforts to condemn and exclude the conceptions of others—including scientists, nonbelievers, and believers from other denominations—created discord. Both Catholics and Protestants were guilty of this throughout the nineteenth and first half of the twentieth century. . . . For too long it has been detrimental to scholarship as a whole and to the relationship between theology and other academic disciplines.”). ↑
  41. . See Karmen Melissa Stephenson, Academic Freedom, Critical Thinking, and the Culture of American Science Education, 10 (2018) (Ph.D. Dissertation, University of Tennessee) (stating that after the Scopes trial most science textbooks limited or removed evolution from public science education. Teaching evolution was especially limited in states that had no “anti-evolution statutes in place.” This changed in the 1950s and 60s as First Amendment cases were decided). ↑
  42. . See Elizabeth King, Education is Fundamental to Development and Growth, World Bank Blogs (Jan. 28, 2011), https://blogs.worldbank.org/education/education-is-fundamental-to-development-and-growth (discussing education as the tool to “reap” the benefits of the human mind to make possible all developments in society). ↑
  43. . Academic Freedom, supra note 29. ↑
  44. . Id. ↑
  45. . 391 U.S. 563 (1968). ↑
  46. . Id. ↑
  47. . Joseph J. Martins, Tipping the Pickering Balance: A Proposal for Heightened First Amendment Protection for the Teaching and Scholarship of Public University Professors, 25 Cornell J.L. & Pub. Pol’y 649, 654 (2016). ↑
  48. . Pickering, 391 U.S. at 569–70 ↑
  49. . Id. at 572. ↑
  50. . 461 U.S. 138 (1983). ↑
  51. . Id. ↑
  52. . Id. at 147–48. ↑
  53. . Id. at 146. ↑
  54. . Id. at 148. ↑
  55. . Martins, supra note 47, at 655–56. ↑
  56. . Connick, 461 U.S. at 147–48. ↑
  57. . Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). ↑
  58. . Id. at 422. ↑
  59. . Id. ↑
  60. . See infra Part IV. ↑
  61. . Garcetti, 547 U.S. at 414. ↑
  62. . Id. at 421. ↑
  63. . Strasser, supra note 28, at 579; see also LeRoy, supra note 34, at 14 (stating that “the law did little to distinguish between the expressive elements for the occupation of professor, on the one hand, and high school teacher, hospital nurse, and assistant state’s attorney, on the other. The result is a one-size-fits-all First Amendment jurisprudence”). ↑
  64. . Garcetti, 547 U.S. at 425. ↑
  65. . Id. at 438 (Souter, J., dissenting). ↑
  66. . Id. at 438–39. ↑
  67. . Gitlow v. New York, 268 U.S. 652, 666 (1925). ↑
  68. . The Declaration of Independence para. 2 (U.S. 1776). ↑
  69. . 593 F.3d 196 (2d Cir. 2010). ↑
  70. . 541 F.3d 769 (7th Cir. 2008). ↑
  71. . Carol N. Tran, Recognizing an Academic Freedom Exception to the Garcetti Limitation on the First Amendment Right to Free Speech, 45 Akron L. Rev. 945, 967–68 (2011). But see Piggee v. Carl Sandburg Coll., 464 F.3d 667, 672 (7th Cir. 2006), where the court declined to apply Garcetti in its reasoning. ↑
  72. . 746 F.3d 402 (9th Cir. 2014). ↑
  73. . Victoria Jones, Comment, Developing a Speech Standard for Public University Faculty in the Academic Environment, 87 Miss. L.J. Supra 37, 54, LEXIS (2018). ↑
  74. . Jones, supra note 73, at 55–56. See also Schrier v. Univ. of Colo., 427 F.3d 1253 (10th Cir. 2005). ↑
  75. . Demers, 746 F.3d at 411. ↑
  76. . See Preece, supra note 13, at 33. ↑
  77. . See id. (arguing that professors’ freedom of speech rights are already subject to censorship because “‘political correctness’ is often a pre-requisite for appointment, tenure, or promotion . . . in modern Universities”). ↑
  78. . Martins, supra note 47, at 678. ↑
  79. . Dennis J. Turner, Publish or be Damned, 31 J. Legal Educ. 550, 554 (1981). ↑
  80. . LeRoy, supra note 34, at 38 (stating that “the First Amendment is not synonymous with academic freedom”). ↑
  81. . Turner, supra note 79, at 554 (This pressure on professors to publish and produce scholarship has been referred to as the “publish or perish” phenomenon, and some critics argue that while this pressure “may force the pen to the paper . . . it cannot instill creativity and inspiration”). ↑
  82. . Molly Worthen, The Fight Over Tenure is Not Really About Tenure, N.Y. Times (Sept. 21, 2021), https://www.nytimes.com/2021/09/20/opinion/tenure-college-university.html. ↑
  83. . Meriwether v. Hartop, 992 F.3d 492, 498 (6th Cir. 2021). ↑
  84. . Id. ↑
  85. . Id. at 499. ↑
  86. . Id. ↑
  87. . Id. ↑
  88. . Id. ↑
  89. . Id. ↑
  90. . Id. at 500. ↑
  91. . Id. ↑
  92. . Adams v. Tr. of the Univ. of N.C.–Wilmington, 640 F.3d 550, 566 (4th Cir. 2011). ↑
  93. . Buchanan v. Alexander, 919 F.3d 847, 856 (5th Cir. 2019). ↑
  94. . Demers v. Austin, 746 F.3d 402, 418 (9th Cir. 2014). ↑
  95. . Meriwether, 992 F.3d at 505. ↑
  96. . Id. at 505. ↑
  97. . Id. ↑
  98. . Id. at 506. ↑
  99. . Id. at 507. ↑
  100. . Id. ↑
  101. . Id. ↑
  102. . Id. ↑
  103. . Id. ↑
  104. . Id. ↑
  105. . 516 F. Supp. 2d 1158, 1170 (C.D. Cal. 2007), aff’d, 403 F. App’x 236 (9th Cir. 2010). ↑
  106. . Id. at 1166–68. ↑
  107. . Id. at 1169–70. ↑
  108. . LeRoy, supra note 34, at 4. ↑
  109. . Strasser, supra note 28, at 595. ↑
  110. . Meriwether v. Hartop, 992 F.3d 492, 509 (6th Cir. 2021). ↑
  111. . Id. at 500. ↑
  112. . 260 F.3d 671 (6th Cir. 2001). ↑
  113. . Id. at 678 (citing Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 87 (6th Cir. 1995)). ↑
  114. . Meriwether, 992 F.3d at 509–10. ↑
  115. . Id. at 510. ↑
  116. . Id. at 511–12. ↑
  117. . Id. at 506. ↑
  118. . See Arnold H. Loewy, Freedom of Speech as a Product of Democracy, 27 U. Rich. L. Rev. 427, 437 (1993). ↑
  119. . Hudson, supra note 1. ↑
  120. . Id. at 669. ↑
  121. . Id. at 669–70. ↑
  122. . Id. at 670. ↑
  123. . Id. at 669–70. ↑
  124. . Id. at 668 (stating that “[i]n the academic context, because the First Amendment value of core academic speech to the professor and society is so high, and the university’s corresponding interest in restraining such speech is so minimal, the Pickering balance should weigh decidedly in the professor’s favor”). ↑
  125. . For a discussion of this preference, see Strasser, supra note 28, at 596–605. ↑
  126. . Martins, supra note 47, at 685. ↑
  127. . 464 F.3d 667, 672 (7th Cir. 2006). ↑
  128. . Id. at 668. ↑
  129. . Strasser, supra note 28, at 602. See also Piggee, 464 F.3d at 672 (“Piggee’s ‘speech,’ both verbal and through the pamphlets . . . was not related to her job of instructing students . . . [but] inhibited her ability to perform that job by undermining her relationship with . . . other students who disagreed with or were offended by her expressions of her beliefs.”). ↑
  130. . Martins, supra note 47, at 685–86. ↑
  131. . Id. at 686. ↑
  132. . Id. ↑
  133. . Strasser, supra note 28, at 599 (quoting Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 681 (6th Cir. 2001)). ↑
  134. . Id. at 603. ↑
  135. . 241 F.3d 800 (6th Cir. 2001). ↑
  136. . Strasser, supra note 28, at 603. ↑
  137. . Id. ↑
  138. . Martins, supra note 47, at 683. ↑
  139. . Id. See also Stephenson, supra note 41, at 20 (stating that science advocates argue that “‘Holocaust denial’ is not a topic that teachers have the academic freedom to include in public school history courses, as it is not part of the mainstream knowledge or scholarship in the field”). ↑
  140. . Understanding College Affordability: Room and Board, Urb. Inst., http://collegeaffordability.urban.org/prices-and-expenses/room-and-board/#/ (“Almost 60 percent of full-time students enrolled in private nonprofit four-year colleges and universities live in college housing, compared with 36 percent of public four-year college students.”). ↑
  141. . Amanda Ottaway, Medical Association Wants 6th Circ. Pronoun Ruling Redo, Law 360 (May 18, 2021, 9:10 PM), https://plus.lexis.com/newsstand#/article/1385929 (“The empirical data demonstrates that singling out a transgender student in this manner is likely to significantly imperil the student’s health and educational outcomes.”). ↑

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17Nov

Death Knell for Death Penalty After the Parkland Shooter Verdict?

Categories: Current Issues Blog
Comments Off on Death Knell for Death Penalty After the Parkland Shooter Verdict?

By Kendall Carter

Florida has executed more people than just about any other state.[1]  However, Florida also gets it wrong more than anyone else.  Florida has had thirty exonerations from death row, more than any other state, and it’s not even close.[2]

On October 13, 2022, after months of proceedings, a Broward County jury recommended a sentence of life in prison without the possibility of parole for each of Nicholas Cruz’s 17 counts of first-degree murder.[3]  Cruz carried out the February 14, 2018, massacre at Marjory Stoneman Douglas High School in Parkland, Florida, slaying fourteen students and three faculty and staff members.[4]  Cruz had plead guilty to the charges last year, so the jury trial focused solely on the sentencing phase.[5]  Prosecutors submitted seven aggravating factors—circumstances required to make an individual guilty of first-degree murder eligible for the death penalty—including that the offender created a “great risk of death” to many persons, the homicides were especially heinous, atrocious, and cruel, and the homicides were committed in a cold, calculated, and premeditated manner.[6]  The defense submitted forty-one mitigating factors,[7] far more than the seven statutorily defined mitigating factors, relying on the residual provision in Fla. Stat. § 921.141(7)(h) to present “any other factor[s]” that would make the imposition of a life sentence more appropriate.[8]  One statutory factor presented was that “the defendant was under the influence of extreme mental or emotional disturbance” when the crime took place.[9]  One “other factor” presented was that Cruz’s mother’s heavy alcohol use while pregnant “poisoned” Cruz, leading to fetal alcohol spectrum disorder.[10]  While the jurors unanimously determined that the prosecutors had proven seven aggravating factors beyond a reasonable doubt,[11] three of the jurors did not agree that the aggravating factors outweighed the mitigating factors.[12]  As such, the jury could not recommend a sentence of death.[13]

Many of the victims’ families expressed shock and outrage at the verdict, including Linda Beigel Schulman, whose son, Scott Beigel, a geography teacher at Stoneman Douglas, was killed.[14]  After the verdict was read, Ms. Schulman lamented, “If this was not the most perfect death penalty case, then why do we have the death penalty at all?”[15]  Fred Guttenberg, whose 14-year-old daughter, Jamie, was also among the victims, said, “This jury failed our families today.  Seventeen families did not receive justice.”[16]  Surprise, however, was not limited to the victims’ families.  Indeed, “[w]ith the trial being watched worldwide and with ample evidence of the brutality of Cruz’s rampage, many legal observers had believed Cruz’s defense team faced an uphill battle in convincing a jury to spare his life.”[17]  This was the deadliest mass shooting to be adjudicated by a trial in the U.S., yet it still didn’t result in a death verdict.[18]

One may, understandably, feel that a life without parole sentence in such a high-profile case—in a death penalty-friendly state like Florida, no less—might signal a shift in public sentiment against the death penalty.  Certainly, support for the death penalty in the U.S. is at its lowest point (fifty-four percent) since 1972,[19] when the Supreme Court issued, what amounted to, a four-year moratorium on the death penalty in Furman v. Georgia, but this verdict reveals a far more complex picture of where the death penalty stands in America.[20]  On one hand, says Former Miami-Dade senior homicide prosecutor Abe Laeser, defense attorneys will likely use this case as leverage with prosecutors: “[A] lawyer will say, ‘My client didn’t shoot 17 school kids with 139 bullets.  If that guy doesn’t deserve it, my guy doesn’t deserve it.’”[21]  Likewise, Laeser predicts, “Across the board, prosecutors who are pro-death penalty are going to be in a difficult position to make their cases to trial juries and trial judges.”[22]

On the other hand, Cruz’s verdict appears to have galvanized pro-death penalty sentiment in Florida, spurring demands to reform Florida’s death penalty laws.[23]  In recent years, the death penalty has been overhauled in Florida.[24]  First, in 2016, the Supreme Court of the United States ruled that Florida’s death penalty was unconstitutional as it violated the Sixth Amendment’s guarantee of the right to a jury trial.[25]  The Florida sentencing statute at the time “does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’”[26]  Additionally, Florida’s capital punishment-specific statute tasks the trial court alone with the finding “[t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”[27]  This effectively meant that the jury’s recommendation was “advisory only,” empowering judges to find that a death sentence was warranted, even if the jury recommended life in prison.[28]

However, during this time, another element of Florida’s sentencing statute elicited questions.[29]  A simple majority vote was all that was required in Florida, one of only three states that permitted nonunanimous jury recommendations in capital sentencing.[30]  Not only could death sentences be overruled by the judge, but also, they need not be unanimous.[31]  Hurst called Florida’s death penalty practices into question, so the legislature amended the death penalty statute to align Florida’s practice with constitutional principles.[32]  First, the March 2016 amendment eliminated judges’ ability to override jury sentencing recommendations.[33]  Second, the amendment mandated that jurors unanimously determine that the prosecution has proven aggravating factors, making the defendant eligible for a possible death sentence.[34]  Finally, the statute no longer permitted a simple majority to impose the death penalty but did not go so far as requiring a unanimous vote, instead requiring that at least ten jurors sign on to the ultimate death sentence.[35]  However, in October 2016, the Supreme Court of Florida struck down the statutory amendment because while aggravating factors must be found by unanimous vote, the statute still did not require a unanimous vote for the ultimate imposition of the death penalty.[36]  As a result, it was not until March 2017 that death sentences in Florida had to be unanimous, after the Florida legislature again amended the statute.[37]  It is this statute that guided the prosecution in Cruz’s case.[38]

With Ron DeSantis securing reelection as governor of Florida in a decisive victory earlier this month,[39] Florida is poised to make a significant change in its death penalty policies.[40]  At a campaign stop on October 16, 2022, Governor DeSantis expressed his frustration at Cruz’s jury verdict, lamenting, “I’m sorry, when you murder 17 people in cold blood, the only appropriate punishment is capital punishment.”[41]  Governor DeSantis also signaled his intentions to work with the Florida legislature to reform the laws governing the death penalty, hinting at Florida’s fickle sentencing statute.[42]  During DeSantis’s first term as governor, as many people were executed as were exonerated from Florida’s death row.[43]  Yet Governor DeSantis looks to return to the prior sentencing regime, specifically sanctioned by the United States Supreme Court, that would allow fewer than twelve jurors or even just one particularly pro-death judge to sentence a criminal defendant to death.[44]  When death verdicts are easier to come by, it is easy to see how innocent people get swept up in the melee. Eliminating the need for unanimous jury verdicts in capital cases would, warns Robert Durham, executive director of the Death Penalty Information Center, “make it more likely innocent people will receive the death penalty.”[45]  Durham directly attributes Florida’s high exoneration rate to its history of relying on nonunanimous juries to sentence its defendants to death.[46]  Given that he plead guilty last year, Cruz’s case is probably not one that elicits concerns of a possible exoneration down the line.  Nonetheless, the high-profile nature of the case opens the door to significant changes in the way Florida juries hand down death sentences.  As a result, future defendants whose guilt is less than certain may have only ten or even seven jurors to decide if they live or die.  If Governor DeSantis keeps his word to make imposing the death penalty easier in Florida, the Broward County jurors may have had more of an impact on the future of the death penalty than they realized when they took their oaths.

[1] Executions Overview, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/executions-overview. Only Texas (577), Oklahoma (118), and Virginia (113) have carried out more executions since 1976.

[2] Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/florida; Innocence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence.  The state with the second highest number of exonerations is Illinois with 22, and then the numbers fall off from there.

[3] Dakin Andone et al., Parkland School Shooter Avoids the Death Penalty after Jury Recommends Life in Prison, CNN (Nov. 9, 2022, 11:47 PM), https://www.cnn.com/2022/10/13/us/nikolas-cruz-jury-deliberation-thursday.

[4] Id.

[5] Id.

[6] Id.; Fla. Stat. § 921.141(6).

[7] Andone et al., supra note 3.

[8] Fla. Stat. § 921.141(7).

[9] Patrick J. Lyons & Patricia Mazzei, ‘Mitigating Circumstances’ Spared the Gunman’s Life. What Are They?, N.Y. Times (Oct 13. 2022, 2:21 PM), https://www.nytimes.com/2022/10/13/us/mitigating-factors-parkland-jury.html?smid=url-share.

[10] Id.

[11] Patricia Mazzei & Nicholas Bogel-Burroughs, The Gunman Will Be Sentenced to Life in Prison Without Parole, N.Y. Times (Oct. 14, 2022), https://www.nytimes.com/2022/10/13/us/parkland-trial-verdict-gunman.html?smid=url-share.

[12] Andone et al., supra note 3.

[13] Patricia Mazzei & Audra D. S. Burch, Juror Describes Last-Ditch Bid to Deliver Death Sentence in Parkland Trial, NY Times (Oct. 15, 2022), https://www.nytimes.com/2022/10/15/us/parkland-trial-juror-death-sentence.html.

[14] Patricia Mazzei & Nicholas Bogel-Burroughs, ‘What Is the Death Penalty For?’ Parkland Victims’ Families Question Jury’s Decision., N.Y. Times (Oct. 13, 2022, 2:02 PM), https://www.nytimes.com/2022/10/13/us/parkland-families-death-penalty.html?smid=url-share.

[15] Id.

[16] Id.

[17] David Ovalle & Mary Ellen Klas, What’s Next for the Death Penalty – in Florida? – Legal Experts Predict That the Parkland Verdict for a Life Sentence Will Make It Harder to Secure Death-Penalty Convictions in Florida., Mia. Herald (Oct 14. 2022), https://www.miamiherald.com/news/local/crime/article267258577.html.

[18] Terry Spencer, Parkland School Shooter Spared from Execution for Killing 17, AP News (Oct. 13, 2022), https://apnews.com/article/parkland-shooter-jury-recommendation-live-updates-15c5121be1b8b7a73b85607d602e6ba2.

[19] Death Penalty, Gallup, https://news.gallup.com/poll/1606/death-penalty.aspx.

[20] Furman v. Georgia, 408 U.S. 238 (1972).  The moratorium ended four years later with Gregg v. Georgia, 428 U.S. 153 (1976).

[21] Ovalle & Klas, supra note 17.

[22] Id.

[23] Gary Fineout, Parkland Verdict May Reopen Florida Death Penalty Law, POLITICO (Oct. 14, 2022, 7:05 AM), https://www.politico.com/newsletters/florida-playbook/2022/10/14/parkland-verdict-may-reopen-florida-death-penalty-law-00061815.

[24] Hurst v. Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/stories/hurst-v-florida.

[25] Hurst v. Florida, 577 U.S. 92 (2016).

[26] Id. at 99–100 (quoting Fla. Stat. § 775.082(1) (emphasis added)).

[27] Id. at 100 (quoting Fla. Stat. § 921.141(3)).

[28] Spaziano v. State, 433 So.2d 508, 512 (Fla. 1983).  See James C. McKinley Jr., Why Does Florida Require a Unanimous Jury Decision to Impose a Death Sentence?, N.Y. Times (Oct. 13, 2022), https://www.nytimes.com/2022/10/13/us/florida-death-penalty-jury.html.

[29] Hurst v. Florida, supra note 24.

[30] McKinley, supra note 28.

[31] Id.

[32] Hurst v. Florida, supra note 24.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] McKinley, supra note 28.

[39] Anthony Izaguirre, DeSantis Defeats Crist, Wins 2nd Term as Florida governor, AP News (Nov. 8, 2022), https://apnews.com/article/florida-governor-race-2022-midterm-elections-4b2fe3a05668ed67119511838339110e.

[40] Fineout, supra note 23.

[41] Demie Johnson, Gov. DeSantis Calls on Changes to Death Penalty Law after Parkland Shooter Sentencing Hearing, WFTV (Oct. 16, 2022, 10:29 PM), https://www.wftv.com/news/local/gov-desantis-calls-changes-death-penalty-law-after-parkland-shooter-sentencing-hearing/57NEAEVPVFHNRIHQWBHTAWFHFY/.

[42] Id.

[43] Florida, supra note 2; Innocence Database – Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence-database?state=Florida.

[44] Bruce Ritchie, DeSantis Says Parkland Shooter Deserves the Death Penalty, POLITICO (Oct. 13, 2022, 2:02 PM), https://www.politico.com/news/2022/10/13/parkland-school-shooter-to-get-life-sentence-for-killing-17-00061661.

[45] Greg Allen, Florida Is Poised to Change the Way It Imposes the Death Sentence in Trials, Morning Edition, NPR (Nov. 1, 2022, 5:02 AM), https://www.npr.org/2022/11/01/1133041129/florida-is-poised-to-change-the-way-it-imposes-the-death-sentence-in-trials.

[46] Id.

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1May

Choosing to Go Out with a Bang: Examining Executions by Firing Squad

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By Grace Koppenheffer

As morbid as it is, most of us have probably thought about the way we would want to die, and the ways we definitely would not.  We instinctively recoil against those deaths that seem the most painful, the most inhumane.

Richard Bernard Moore, a death row inmate in South Carolina, was the first South Carolina prisoner to decide the method of his execution.[1]  In 2021, after South Carolina had had problems for years securing lethal injection drugs, the state passed a law that “made the electric chair the default execution method instead of lethal injection, and also codified the firing squad as an alternative option for condemned inmates.”[2]  Moore’s options were either death via electric chair or death via firing squad, and although he found both options unconstitutional, “he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice.”[3]  His death was scheduled for April 29, 2022, but the South Carolina Supreme Court issued a temporary stay on April 20, 2022.[4]

Moore’s death would have been the first time South Carolina killed an inmate via firing squad, and only the fourth firing squad execution in the country since 1976.[5]  Although four states (Mississippi, Oklahoma, South Carolina, and Utah) allow death by firing squad, the previous three all happened in Utah, with the most recent firing squad execution in 2010.[6]  In Utah, “[t]he prisoner is strapped into a chair, has a hood put over his or her face and a target placed on his or her chest above the heart.”[7]  In the event of stray bullets or ricochet, sandbags are placed around the chair.[8]  There are five sharpshooters, but one has a blank, so that each shooter can have “psychological deniability,” which may itself be imperfect because “they can tell the difference between live ammunition and a blank.”[9]  The South Carolina law provides, “[i]n the case of a firing squad execution, three volunteer prison workers will train their rifles on the condemned prisoner’s heart.”[10]

The Eighth Amendment guarantees that “cruel and unusual punishment [cannot be] inflicted.”[11]  The United States Supreme Court, however, has never struck down a method of carrying out the death penalty as unconstitutional.[12]  In the 1878 case Utah v. Wilkerson,[13] the Court explicitly stated that death by firing squad was constitutional: “[c]ruel and unusual punishments are forbidden by the Constitution, but . . . the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment.”[14]  The Court, however, acknowledged that “punishments of torture,” including being “embowelled alive, beheaded, and quartered,” all practices that were at one time legal but which even the Court in 1878 recognized as “atrocious,” would be unconstitutional.[15]  When Wilkerson was executed sixty days after the Court’s decision, he chose not to be blindfolded.[16]  “[W]hen the sheriff commanded, ‘Ready, aim,’ Wilkerson would draw up his shoulders, causing the target to move and the bullets to miss the target, causing him to jump forward, screaming, ‘Oh God!’”[17] It took him twenty-seven minutes to die, bleeding and withering on the ground.[18]

In Baze v. Rees,[19] followed by Glossip v. Gross[20] and Bucklew v. Precythe,[21] the Court created a two-pronged test for an inmate to challenge the constitutionality of the method of his death: “first, he must demonstrate that the method of execution is very likely to cause substantial harm or suffering, and second, he must present a feasible, readily implemented, less painful alternative that is prescribed by at least one state.”[22]

Scholars, politicians, and those sentenced to death have various opinions about execution by firing squad.  In 2014, Representative Paul Ray from Utah described execution by firing squad as “probably the most humane way to kill somebody.”[23]  Some scholars also argue that the firing squad is better than lethal injection as a means of execution because it is less likely to be botched and it is less painful.[24]  Additionally, “[i]nmates in Alabama, Ohio, Tennessee, and Texas have asked to be executed by firing squad, arguing that lethal injection is very likely to have a risk of serious harm,” providing some evidence that if forced to choose, people would rather die by firing squad.[25]  Even Moore chose death by firing squad over the electric chair when he had to choose between them.

On the other hand, some, like Moore’s lawyers, have argued that execution by firing squad is “barbaric.”[26]  Some scholars contend that death by firing squad is not any less painful or less likely to be botched because “[h]urling projectiles toward an inmate in the hopes of causing cardiac failure, asphyxiation, or some other condition that will result in death, is far from an exact science.”[27]  Additionally, the inmates requesting execution by firing squad reside in states that do not allow that method to carry out the death penalty.[28]  In those states that do allow inmates to choose death by firing squad, they rarely do, and if they do elect such a method, they do so for reasons other than to reduce pain.[29]

Moreover, the Americans Civil Liberties Union of South Carolina has criticized South Carolina’s death penalty legislation as “modern-day lynching,” in part because only 27% of the state’s population is black but over half of those on death row are black.[30]  Executive director Frank Knaack stated, “[l]et’s not kid ourselves, this bill is about finding a new way to restart executions within a racist, arbitrary, and error-prone system.  We cannot divorce the method of execution from the system itself.”[31]

For those who oppose carrying out the death penalty by firing squad, the best route may be to go through legislatures rather than trying to have courts invalidate the method.  After all, “[s]hocking as they are, archaic methods of execution can affect how the public regards capital punishment,” and the legislature is designed to respond to public sentiment.[32]  If our modern sensibilities recoil from the thought of the firing squad being humane, not only will we as a society have to grapple with what methods are humane, but also we will need to grapple with whether the death penalty as a whole is humane.  As one judge put it, “[i]f we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”[33]

[1] Michelle Liu, South Carolina Inmate Picks Firing Squad over Electric Chair, AP News (Apr. 15, 2022), https://apnews.com/article/business-south-carolina-executions-5517b5184f8818bdd53e252af3b9cfc1.

[2] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, NPR (Apr. 20, 2022, 2:38 PM), https://www.npr.org/2022/04/20/1093812483/firing-squad-execution-blocked-south-carolina.

[3] Liu, supra note 1.

[4] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2.

[5] Id.

[6] Id.

[7] Laurel Wamsley, With Lethal Injections Harder To Come by, Some States Are Turning to Firing Squads, NPR (May 19, 2021, 5:00 AM)), https://www.npr.org/2021/05/19/997632625/with-lethal-injections-harder-to-come-by-some-states-are-turning-to-firing-squad.

[8] Id.

[9] Id.

[10] Liu, supra note 1.

[11] U.S. Const. amend. VIII.

[12] Methods of Execution, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/methods-of-execution (last visited Apr. 25, 2022).

[13] 99 U.S. 130 (1878).

[14] Id. at 134–35

[15] Id. at 135–36.

[16] Rob Warden & Daniel Lennard, Death in America Under Color of Law: Our Long, Inglorious Experience with Capital Punishment, 13 Nw. J. L. & Soc. Pol’y 194, 214 (2018).

[17] Id.

[18] Id.

[19] 553 U.S. 35 (2008) (plurality opinion).

[20] 135 S. Ct. 2726 (2015).

[21] 139 S. Ct. 1112 (2019).

[22] Stephanie Moran, Note, A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, 74 U. Mia. L. Rev. 276, 296 (2019).

[23] Mark Berman, The Recent History of States Contemplating Firing Squads and Other Execution Methods, Wash. Post (May 22, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/05/22/the-recent-history-of-states-contemplating-firing-squads-and-other-execution-methods/.

[24] See, e.g., Moran, supra note 22, at 299 (“[S]cientific research indicates that the initial pain felt by the victim may be comparable to being punched in the chest. There is some indication that the pain may also be hampered by an ‘adrenaline surge.’”) (quoting Christopher Q. Cutler, Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah’s Controversial Use of the Firing Squad, 50 Cleveland St. L. Rev. 335, 413 (2002)).

[25] Id. at 304.

[26] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2

[27] Michael Conklin, No, the Firing Squad Is Not Better Than Lethal Injection: A Response to Stephanie Moran’s A Modest Proposal, 44 Seattle U. L. Rev. 357, 369 (2021).

[28] Id. at 362

[29] Id.

[30] Wamsley, supra note 7.

[31] Id.

[32] Id.

[33] Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissenting), vacated by Ryan v. Wood, 573 U.S. 976 (2014).

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28Apr

Miranda Warnings: A Constitutional Right or Supreme Court “Prophylactic”?

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By Cameron Bray

On April 20, 2022, attorneys and Justices of the United States Supreme Court sparred over whether Miranda warnings[1] are a constitutional right or a “judicially crafted prophylactic rule,”[2] as lawyer Roman Martinez argued in open court.  In the case of Vega v. Tekoh, the Court granted certiorari[3] of “whether a plaintiff may state a claim for relief against a law enforcement officer under Section 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda.”[4]The case centers around the Fifth Amendment right against self-incrimination[5] and the Civil Rights Act of 1871, 42 U.S.C. § 1983, which grants a damages remedy for violations of constitutional and statutory civil rights.[6]  At issue is the precedent case Dickerson v. United States,[7] which upheld Miranda in spite of Congress[8] in 2000 but described the doctrine as “constitutionally based”[9] and having “constitutional underpinnings”[10] rather than as a true-born, fundamental constitutional right, like the right to remain silent at trial.[11]

The facts of Vega v. Tekoh are in controversy, but the New York Times reports that respondent, Terence B. Tekoh, is “a hospital attendant who was accused of sexually abusing an immobilized patient receiving an emergency MRI.”[12]  On the flip side, petitioner, Carlos Vega, is a sheriff’s deputy in Los Angeles County who interrogated Mr. Tekoh in connection with a “credible report of sexual assault.”[13]  Accounts differ as to the nature of the interrogation—whether it was coercive or not[14]—but by all accounts, Deputy Vega did not Mirandize Mr. Tekoh prior to questioning, Mr. Tekoh signed a confession, a California trial court admitted the statement in evidence, and a jury acquitted Mr. Tekoh on the merits.[15]

The federal district court, in ruling on Mr. Tekoh’s § 1983 suit against Los Angeles County, held that the use of an un-Mirandized statement was insufficient to show a violation of his right against self-incrimination.[16]  However, the Court of Appeals for the Ninth Circuit, in a published opinion, reversed and held that a plaintiff may state a claim against the State under § 1983 where “the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding.”[17]  In so ruling, Judge Wardlaw on behalf of the panel vacated the court’s judgment and remanded for a new trial with orders to include Mr. Tekoh’s instruction on un-Mirandized confessions.[18]  The court of appeals then denied en banc review, with seven judges dissenting.[19]

Based on oral argument in Vega v. Tekoh, it remains to be seen whether the Supreme Court will rule Miranda a constitutional “right” or mere prophylactic rule under the Fifth Amendment.[20]  Either way, with police interrogations and misconduct increasingly under scrutiny, the decision will have a major impact on § 1983 lawsuits moving forward beyond the current Term.[21]  A rule in favor of Mr. Tekoh could create a world in which an un-Mirandized statement in evidence gives rise to liability not just in a few federal circuits, but in all courts across the United States.[22]

[1] In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Warren, C.J.), the Court held that “[p]rior to any questioning, the [arrestee] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  This American policing practice, as seen on shows like Cops and Law & Order, has come to be known as a “Miranda warning” or “Mirandizing” the suspect.

[2] Jordan S. Rubin, Miranda Warnings Probed by Supreme Court in Police-Suit Case, Bloomberg L. (Apr. 20, 2022), https://news.bloomberglaw.com/bloomberg-law-news/miranda-warnings-probed-by-supreme-court-in-police-suit-appeal.

[3] Vega v. Tekoh, 142 S. Ct. 858 (2022) (reviewing judgment of the Court of Appeals for the Ninth Circuit).

[4] Petition for Writ of Certiorari, Vega, 142 S. Ct. 858 (No. 21-499), 2021 WL 4553767.

[5] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V (emphasis added).  The relevant provision for Miranda warnings is called the Self-Incrimination Clause of the Fifth Amendment.

[6] “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .” 42 U.S.C. § 1983.  Section 1983 is the go-to cause of action for civil rights plaintiffs against state actors such as police officers and sheriff’s departments.

[7] 530 U.S. 428 (2000).

[8] In the wake of Miranda, two years later, Congress enacted 18 U.S.C. § 3501 (1968), which made the admissibility of a custodial statement, or “confession,” turn solely on whether it was voluntarily given by the suspect.  This went against Miranda’s holding that an arrestee must be warned prior to questioning of his Fifth Amendment rights.

[9] Id. at 441 (Rehnquist, C.J.).

[10] Id. at 440 n.5.

[11] During oral argument, Justice Barrett observed that Dickerson “didn’t ever use the word ‘constitutional’ right.”  See Rubin, supra note 2.  The defendant’s right to silence as a constitutional matter was established by Griffin v. California, 380 U.S. 609 (1965), which held that neither the trial court nor the prosecutor may comment on the defendant’s failure to testify before a jury.  Id. at 615.  Chief Justice Rehnquist’s view of Miranda as a constitutional “rule” (not a “right”) was later endorsed by a plurality in Chavez v. Martinez. 538 U.S. 760, 763 (2003), which ruled against respondent because of qualified immunity.  Chavez, to be clear, is non-binding, and the federal circuits are split in whether they regard Miranda warnings as a constitutional right for purposes of § 1983 liability.  See Petition for Writ of Certiorari, supra note 4, at *2.

[12] Adam Liptak, Supreme Court Debates Whether Miranda Warnings Are a Constitutional Right, N.Y. Times (Apr. 20, 2022), https://www.nytimes.com/2022/04/20/us/supreme-court-miranda-rights.html?searchResultPosition=1.

[13] Petition for Writ of Certiorari, supra note 4, at *4.

[14] According to Deputy Vega, “Tekoh quickly confessed to the assault, and later stood trial, where his confession was admitted into evidence.  A jury nevertheless acquitted Tekoh.” Id. at *4–5.  By contrast, Mr. Tekoh claims that: “Petitioner Vega investigated this allegation at the hospital.  He interrogated Respondent in a small windowless, soundproof room . . . [A]fter about an hour in the room with the door shut, Respondent wrote a vague, apologetic confession . . . While Petitioner insists that the statements Respondent gave were voluntary and immediate, Respondent testified to an interrogation replete with profanities and threats to have Respondent and his family deported, and refusing to allow Respondent to speak to a lawyer or one of his supervisors.”  Brief in Opposition, Vega v. Tekoh, 142 S. Ct. 858 (2022) (No. 21-499), 2021 WL 5864537, at *3.

[15] David G. Savage, Los Angeles Police Dispute at Center of Supreme Court Case on Miranda Warnings, L.A. Times (Apr. 20, 2022), https://www.latimes.com/politics/story/2022-04-20/supreme-court-ready-to-shield-police-from-being-sued-for-ignoring-miranda-warnings-hold.

[16] See Tekoh v. Cty. of Los Angeles, 985 F.3d 713, 717 (9th Cir. 2021) (noting that the District of Central California failed to instruct the jury “that it should find in [plaintiff’s] favor on the Fifth Amendment claim if it determined that Deputy Vega obtained statements from him in violation of Miranda that were used in the criminal case against him.”).

[17] Id. at 715.

[18] Id. at 726.

[19] 997 F.3d 1260 (9th Cir. 2021).

[20] Chief Justice Roberts, who once clerked for the Dickerson Court, noted that, “[former Chief Justice Rehnquist] was somebody careful with his words, he didn’t say Miranda is in the Constitution.  He talked about constitutional underpinnings, constitutional basis.”  Rubin, supra note 2.  However, he also asked petitioner’s attorney, Mr. Martinez, “So why isn’t that right one secured by the Constitution?”  Id.  By contrast, Justice Kagan said that Dickerson “understood that Miranda had come to mean something extremely important in the way people understood the law and the way people understood the Constitution” and that undermining Miranda could hurt the Court’s legitimacy.  Id.

[21] LastWeekTonight, Police Interrogations: Last Week Tonight with John Oliver (HBO), YouTube (Apr. 18. 2022), https://www.youtube.com/watch?v=obCNQ0xksZ4.

[22] In dissent, the late Justice Scalia dared the Dickerson Court to take the opinion “out of the realm of power-judging and into the mainstream of legal reasoning” by simply declaring that Miranda was in fact a federal constitutional right recognized by the Supreme Court.  Dickerson, 530 U.S. at 445–46 (Scalia, J., dissenting).

 

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12Apr

The Nondelegation and Major Questions Doctrines: OSHA’s Stayed Mandate and a Closer Look at the Growing Debate over Chevron Deference

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By Jonathon Beatty

In National Federation of Independent Business v. OSHA,[1] the Supreme Court reversed the Sixth Circuit Court of Appeals and stayed the Occupational Health and Safety Administration’s (“OSHA”) rule imposing a vaccine-or-test mandate on essentially every employer with at least 100 employees.[2]  The rule and subsequent stay affected some eighty-four million private-sector workers across the United States,[3] but the opinion has far-reaching implications for our entire constitutional order.  It highlighted a growing debate over the deference courts afford agencies when they ostensibly act pursuant to a congressional delegation of authority—namely, the nondelegation and major questions doctrines.[4]  At the very least, a majority of the Court signaled a willingness to scale back Chevron deference,[5] while Justice Gorsuch, joined by Justices Thomas and Alito, appeared poised to strengthen a duo of related doctrines that could dramatically diminish the authority of administrative agencies moving forward.[6]  But what does all this mean?

Start with the text of the Constitution.  Article I, Section 1 grants “[a]ll legislative powers . . . in a Congress of the United States, which shall consist of a Senate and House of Representatives.”[7]  On its face, the Constitution is clear in its separation of powers: all legislation, or lawmaking, must originate in Congress.  As Justice Scalia put it, “This text permits no delegation of those powers . . . .”[8]  Since at least 1892, the Supreme Court has made this abundantly clear, “[t]hat Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”[9]  Hence, the nondelegation doctrine has developed from and is a product of the Constitution’s text.  Few, if any, rules, however, are absolute.  The nondelegation doctrine is no exception.[10]

The Constitution demands that the President faithfully execute the laws.[11]  In doing so, the executive necessarily must have some decision-making authority to administer laws.[12]  Even James Madison, who championed “the division of authority among the various branches of government,”[13] recognized that absolute separation “can never in practice be duly maintained.”[14]  Accordingly, the Court has long sought to strike the balance between maintaining a clear separation of powers and allowing Congress to delegate limited rulemaking authority to administrative agencies for practical purposes.[15]  Effective governance, the argument goes, relies on it.[16]  In delegating such authority, however, Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.”[17]  Otherwise, executive action may stray too far from legislative command and thus unconstitutionally blur the line between executive and legislative power.

The validity of an administrative rule, therefore, rests on essentially three questions: (1) whether Congress has the authority itself to do what the agency has done; (2) whether Congress may delegate that authority to an agency; and (3) whether Congress, in fact, delegated that authority.[18]  The first question is a threshold matter asking whether “the federal government properly invoke[d] a constitutionally enumerated source of authority to regulate in [the] area . . . .”[19]  If so, courts look to whether the attempted delegation of power provides an “intelligible principle” to direct the agency.[20]  Too broad a grant of authority without sufficient guidance would violate Article I, Section 1 by taking from Congress, the branch closest and most responsive to the democratic process, “important choices of social policy.”[21]  And finally, courts must determine whether Congress, in fact, made a constitutional grant of authority allowing the agency to do what it purports to have the power to do.[22]  Put differently, Congress may have the inherent constitutional authority and may be able to delegate that authority, but did it?[23]  This last question, on which OSHA’s mandate ultimately failed,[24] implicates Chevron deference and the major questions doctrine.

When a statute speaks clearly on an issue, a court’s assessment ceases: it “must give effect to the unambiguously expressed intent of Congress,” regardless of an agency’s interpretation or position.[25]  Where, however, the statute is vague and does not “address[] the precise question at issue,” the court need only decide whether the agency’s decision represents “a permissible construction of the statute.”[26]  In other words, when a statue is ambiguous, the agency’s interpretation of a statute allowing it to make rules need only be “reasonable.”[27]  The underlying justification for such great deference is basically twofold: (1) ambiguity amounts to “an implicit delegation” of power to an “agency to fill the statutory gaps” left by Congress;[28] and (2) administrative agencies that Congress has tasked with administering the law have “expertise,” especially relative to judges, that better positions them to make rules on the regulatory matter.[29]

This inclination to defer to an agency’s “reasonable” interpretation goes at least as far back as the 1940s,[30] for example, when Justice Murphy explained that courts may invalidate an agency’s rule “only if it lacks any rational and statutory foundation.”[31]  Just like the nondelegation doctrine, however, Chevron is not without exception.  An agency’s exercise of substantial authority, even where the enabling statute at issue is ambiguous, may appropriately give courts pause before deciding that Congress has made “such an implicit delegation.”[32]  This is especially true of “question[s] of deep ‘economic and political significance.’”[33]  And the major questions doctrine represents that pause, or “reason to hesitate,”[34] before essentially rubber-stamping agency action.[35]  The idea is that if Congress truly assigned an agency such considerable power, it would have done so unmistakably.

On this doctrine, the Court stayed OSHA’s mandate, finding that challengers of the rule were likely to succeed on the merits that OSHA “lacked authority to impose the mandate.”[36]  Pointing to the rule’s “significant encroachment into the lives—and health—of a vast number of employees,” the Court reasoned that such an intrusion would need a clear congressional delegation of authority that “plainly authorizes the . . . mandate.”[37]  It went on to hold that no such authorization existed, explaining that the enabling statute “empowers [OSHA] to set workplace standards, not broad public health measures.”[38]

Echoing the majority opinion, Justice Gorsuch summarized the issue before the Court as one of “who decides” the major question.[39]  He further posited that the nondelegation and major questions doctrines, which are “closely related,” shed light on that question.[40]  He explained that both serve to keep lawmaking power “where Article I of the Constitution says it belongs—with the people’s elected representatives.”[41]  And the power to decide how to address the pandemic, as the law exists today, he argued, “rests with the States and Congress, not OSHA.”[42]

Ultimately, much remains to be seen as to what extent the Court will cut back on Chevron deference.  But there is little doubt (1) that a majority of the Court is sympathetic to the nondelegation and major questions doctrines; and (2) that cases challenging agency action will continue to arise.  In fact, West Virginia v. EPA, a case from the current Term, presents yet another opportunity for the Court to weigh in on the major questions doctrine.[43]  There, the Court will answer “[w]hether . . . Congress constitutionally authorized the [EPA] to issue significant rules—including those capable of reshaping the nation’s electricity grids . . . .”[44]  Plaintiffs have good reason to believe that the merits of their challenges look increasingly promising.  Nevertheless, having already used it twice this term to invalidate agency action, court watchers anticipate “[a] major battle of the ‘major questions’ doctrine” in this case and beyond.[45]

[1] 142 S. Ct. 661 (2022).

[2] Id. at 662.

[3] Id.

[4] Id. at 668 (Gorsuch, J., concurring) (“[T]he major questions doctrine is closely related to what is sometimes called the nondelegation doctrine.”).

[5] See generally Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984) (When deciding whether an agency’s interpretation of a statute is valid, courts look to (1) whether the statute at issue is ambiguous; and, if so, (2) whether the agency’s interpretation is reasonable.).  This standard of review is widely considered to be highly deferential to agencies in the rulemaking process.  See Michigan v. EPA, 576 U.S. 743, 761 (2015) (Thomas, J., concurring) (“Chevron deference . . . forc[es] [judges] to abandon what they believe is ‘the best reading of an ambiguous statute’ in favor of an agency’s construction.  It thus wrests from Courts the ultimate interpretative authority to ‘say what the law is,’ and hands it over to the Executive.”) (citations omitted).

[6] See Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 668–69 (Gorsuch, J., concurring) (Justices Thomas and Alito joined Justice Gorsuch in emphasizing the important role the nondelegation and major questions doctrines play in “protect[ing] the separation of powers.”).

[7] U.S. Const. art. I, § 1.

[8] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

[9] Field v. Clark, 143 U.S. 649, 692 (1892).

[10] Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607, 673 (1980) (Rehnquist, J., concurring) (“The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception.”).

[11] U.S. Const. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed . . . .”).

[12] Morton v. Ruiz, 415 U.S. 199, 231 (1974) (“The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”).

[13] Indus. Union Dep’t, 448 U.S. at 673 (Rehnquist, J., concurring).

[14] The Federalist No. 48 (James Madison).

[15] Indus. Union Dep’t, 448 U.S. at 673–74 (Rehnquist, J., concurring) (“This Court . . . has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government capable of effectively exercising the substantive powers granted to the various branches by the Constitution.”).

[16] Id.

[17] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

[18] See cases cited infra notes 19–22 and accompanying text.

[19] Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring).

[20] Whitman, 531 U.S. at 472.

[21] Indus. Union Dep’t, 448 U.S. at 685–86 (Rehnquist, J., concurring) (noting that “the nondelegation doctrine serves three important functions” in (1) upholding democracy, (2) requiring guidance from Congress to the agency, and (3) providing standards against which courts may assess agency action).

[22] Worth noting here is the Supreme Court’s longstanding doctrine to avoid constitutional questions when a case may be resolved on lesser, often statutory, grounds.  See Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018).  Accordingly, administrative law cases often turn on this third question to avoid the more substantial constitutional issue.  Taking the OSHA rule, for example, the Court held that Congress did not delegate the agency the authority to impose a vaccine-or-test requirement; it did not address whether Congress, and thus the federal government, has the inherent constitutional power to do so.  Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 662.

[23] See generally Advisory Opinions, Supreme Court Blocks Vaccine Mandate, The Dispatch, at 22:58 (Jan. 14, 2022), https://advisoryopinions.thedispatch.com/p/supreme-court-blocks-vaccine-mandate?s=r (explaining that, with respect to OSHA’s rule, “nondelegation is that Congress can’t give OSHA the power,” while “major question doctrine is that Congress didn’t give OSHA the power”).

[24] Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 662.

[25] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984).

[26] Id.

[27] Id. at 844. 

[28] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).

[29] Gonzalez v. Oregon, 545 U.S. 243, 266–67 (2006) (“Because . . . policymaking expertise account[s] in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than to the reviewing court, we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.” (quoting Martin v. OSHRC, 499 U.S. 144, 153 (1991))).

[30] The congressional delegation of power, however, is an issue as old at the republic.  See generally Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 281 (2021), https://columbialawreview.org/content/delegation-at-the-founding/ (“The Founders would thus have said that agencies wield legislative power to the extent they adopt rules that Congress could have enacted as legislation.”). Cf Ilan Wurman, Nondelegation at the Foudning, 130 Yale L.J. 1490, 1503 (2021), https://www.yalelawjournal.org/pdf/Wurman_d4111w2k.pdf (“In the first dozen years after Ratification, members of the Founding generation involved in public life and government repeatedly argued that Congress could not delegate its legislative power to the Executive.”).

[31] SEC v. Chenery Corp., 322 U.S. 194, 207 (1947).  

[32] Brown & Williamson Tobacco Corp., 529 U.S. at 159.

[33] King v. Burwell, 576 U.S. 473, 485–486 (2015) (quoting Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).

[34] Brown & Williamson Tobacco Corp., 529 U.S. at 159.

[35] Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring) (“We sometimes call this the major questions doctrine.”).

[36] Id. at 665–66.

[37] Id. at 665.

[38] Id. at 665.

[39] Id. at 667 (Gorsuch, J., concurring).

[40] Id. at 668 (Gorsuch, J., concurring).

[41] Id. at 668–69 (Gorsuch, J., concurring) (“The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials” in an effort to deflect blame or shirk responsibility.).

[42] Id. at 670 (Gorsuch, J., concurring).

[43] Amy Howe, Greenhouse Gases and “Major Questions”: Justices to Hear Argument on EPA’s Power to Tackle Climate Change, SCOTUSblog (Feb. 27, 2022, 6:03 PM), https://www.scotusblog.com/2022/02/greenhouse-gases-and-major-questions-justices-to-hear-argument-on-epas-power-to-tackle-climate-change/.

[44] West Virginia v. Environmental Protection Agency, SCOTUSblog, https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/ (last visited April 12, 2022).

[45] Howe, supra note 43.

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24Mar

North Carolina’s Redistricting Saga

Categories: Current Issues Blog
Comments Off on North Carolina’s Redistricting Saga

By Tanner Henson

Before diving into the legal challenges that surrounded North Carolina’s 2022 congressional redistricting, it is important to understand the recent history of redistricting in the state.  In 2010, a wave election year for North Carolina Republicans, the GOP stunned those who follow state politics by securing majorities in both houses of the General Assembly for the first time since 1898.[1]  Underscoring the enormity of this shift, the State Senate flipped from a Democratic majority of 30–20 to a Republican majority of 31–19, while the State House of Representatives flipped from a Democratic majority of 68–52 to a Republican majority of 68–52.[2]

Having endured severe Democratic gerrymanders at the congressional level,[3] following their wins in 2010, legislative Republicans redrew congressional maps to generate a 10–3 Republican advantage.[4]  Under the North Carolina Constitution, congressional districts are drawn by the General Assembly and are not subject to the governor’s veto.[5]  Partially because of this structure, the Democratic aligned National Redistricting Action Fund, which is closely associated with former Attorney General Eric Holder, has frequently brought suit to enjoin maps favoring the GOP.[6]  Under North Carolina statutes, when a congressional map is challenged in state court, a three-judge panel, composed of Wake County’s senior superior court judge and two additional superior court judges appointed by the chief justice of the North Carolina Supreme Court, have exclusive jurisdiction.[7]  Appeals from this panel go directly to the state supreme court.[8]

In 2018, North Carolina Republicans saw their congressional advantage eroded from 10–3 to 8–5, following a federal court ruling that Republican state legislators “had violated the First amendment and the equal-protection clause of the Fourteenth Amendment when they drew congressional lines that favored their party.”[9]  Given these losses, legislative Republicans went into 2022 looking to regain the lost seats.[10]  Following the 2020 Census, buoyed by North Carolina’s increasing population, which resulted in the state gaining a fourteenth congressional seat,[11] legislative Republicans again drew congressional maps that would have generated a 10–4 majority, even in bad political climates for the GOP.[12]  Likely due to an ideological shift in the North Carolina Supreme Court, which now has a 4–3 Democratic majority,[13] this year, Democratic–backed groups sued the General Assembly in state court, seeking to have the maps enjoined, according to the process outlined above.[14]

In a 260-page order, a three-judge panel upheld the map, ruling that “[a]t no point has restriction of redistricting for partisan advantage ever been made part of any North Carolina Constitution.”[15]  The panel viewed the constraints on redistricting enumerated in the North Carolina Constitution­—that members of Congress should represent nearly equal numbers of constituents, that districts should be contiguous, that maps should split as few counties as feasible, etc.—as exhaustive.[16]  The panel was unwilling to infer that the equal protection and free speech clauses of the state constitution somehow limited the legislature’s redistricting power; rather, the court wrote that “[i]f the framers did intend to limit the partisan advantage that could be obtained through redistricting, ‘it is reasonable to presume it would have been declared in direct terms and not be left as a matter of inference.’”[17]  The panel stressed that the judiciary should not involve itself in such a purely political question, writing, “[w]ere we as a Court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government.  Once we embark on that slippery slope, there would be no corner of legislative or executive power that we could not reach.”[18]

However, in an order dated February 14, the North Carolina Supreme Court reversed the lower court, writing that the congressional map was “unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.”[19]  The court reasoned that to comply with the constraints in the North Carolina Constitution, “the General Assembly must not diminish or dilute any individual’s vote on the basis of partisan affiliation.”[20]  The court further explained that when the legislature enacts a map that makes it more difficult for an individual to join with likeminded voters to elect a governing majority, “the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote.”[21]

Following its order, the court allowed the General Assembly a second opportunity to draw less partisan maps and suspended candidate filing during that period.[22]  However, the legislature enacted another congressional map that would have likely resulted in a 10–4 Republican advantage.[23]  On February 23, the reviewing three-judge panel rejected the second map drawn by the legislature and adopted a map drawn by four non-partisan special masters, which will likely result in either an 8–6 Republican advantage, or an evenly divided delegation.[24] The state supreme court subsequently approved of this map and reopened candidate filing.[25]

On February 25, the Speaker of the North Carolina House of Representatives, Tim Moore, filed an emergency appeal in the United States Supreme Court seeking to overturn the court-enacted congressional map,[26] arguing that the court-imposed map “usurped the legislature’s power to regulate congressional elections under the U.S. Constitution.”[27]  The appeal—Moore v. Harper—was placed on the Court’s shadow docket.[28]

Moore asked the Court to expand its prohibition against judicial interference with redistricting to cover state courts.[29]  The theory underlying the Speaker’s appeal is known as the independent state legislature doctrine.[30]  The theory is grounded in Article I, Section 4 of the United States Constitution, which gives state legislatures the authority to determine the time, place, and manner of congressional elections.[31]  While this grant of authority has been viewed as giving legislative leaders the authority to set the ground rules for elections, it has not previously prevented state court process.[32]  However, Speaker Moore and legislative Republicans argued that the legislature’s power under the Constitution is supreme, thereby preventing state court interference, even in instances where a map might violate the state constitution.[33]  Particularly, Moore argued that the state supreme court interfered with legislative authority to regulate the manner of elections when it enacted a map drawn by its own special masters.[34]

For over one-hundred years, the Supreme Court has rejected this expansive view of the powers granted to state legislatures.[35]  In accord with this precedent, the Court rejected Moore’s appeal.[36]  However, fissures are starting to appear in what had seemed to be a settled area of law.  First, at least four of the Court’s current justices signaled some willingness to examine the independent state legislature doctrine during former President Trump’s challenges to the 2020 election.[37]  Second, while the Court’s decision in Moore left in place the court-imposed maps, it did so over a pointed dissent penned by Justice Alito, who was joined by Justices Thomas and Gorsuch.[38]  The dissenters noted that the “case present[ed] an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”[39]  Justice Alito stressed the importance of answering this question, before lamenting that the Court had missed another opportunity to do so.[40]

Justice Kavanaugh wrote separately, concurring in the denial of Moore’s application for a stay.[41]  While Kavanaugh ultimately voted with the majority, he did so only because he felt that it was “too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections[.]”[42]  Kavanaugh largely agreed with Justice Alito that Moore had “advanced serious arguments on the merits” and posed a question that will “keep arising until the Court definitively resolves it.”[43]

This is likely not the end of the road for the independent state legislature doctrine.  We now know at least four justices are willing to entertain the doctrine, enough to grant certiorari. Some “Court watchers” are predicting that the fate of the theory rests on the vote of Justice Amy Coney Barrett, the only justice who has been, as of yet, completely silent on the merits of the doctrine.[44] Time will tell.

[1] Tracy W. Kimbrell & R. Bruce Thompson II, 2010 North Carolina Election Analysis, Parker Poe (Nov. 3, 2010), https://www.parkerpoe.com/news/2010/11/2010-north-carolina-election-analysis. 

[2] Id.

[3] See Noah Tom Bullock, North Carolina’s Congressional Primaries Are a Mess Because of These Maps, NPR (Mar. 10, 2016, 5:00 AM), https://www.npr.org/2016/03/10/469548881/north-carolinas-congressional-primaries-are-a-mess-because-of-these-maps.  One district, the twelfth, looked reminiscent of a snake, running along I-95 for approximately 80 miles.  The district spanned from Charlotte to Winston-Salem, and at times was no wider than the interstate it tracked. 

[4] Scott Bland, Court Throws Out N.C. Congressional Map Before Election, Politico (Aug. 27, 2018, 7:54 PM), https://www.politico.com/story/2018/08/27/north-carolina-congressional-map-thrown-out-798609.

[5] N.C. Const. art. II, § 22(5).

[6] Patrick Rodenbush, Eric Holder and Marc Elias Discuss NRAF Redistricting Lawsuits, Nat’l Redistricting Action Fund (Apr. 27, 2021), https://redistrictingaction.org/news/eric-holder-and-marc-elias-discuss-nraf-redistricting-lawsuits.  

[7] Doug Spencer, All About Redistricting North Carolina, Loyola L. Sch., https://redistricting.lls.edu/state/north-carolina/?cycle=2020&level=Congress&startdate=2021-11-04 (last visited Mar. 23, 2022).  

[8] Id.

[9] Bland, supra note 4.

[10] See Michael Wines, North Carolina Court Says G.O.P. Political Maps Violate State Constitution, N.Y. Times (Feb. 4, 2022), https://www.nytimes.com/2022/02/04/us/north-carolina-redistricting-gerrymander-unconstitutional.html.

[11] Bill O’Neil, North Carolina Gains Seat in Congress After Census Results Released, WXII12 (Apr. 26, 2021, 8:43 PM), https://www.wxii12.com/article/north-carolina-census-results-additional-congress-seat/36255789.  

[12] Wines, supra note 10.

[13] Id.

[14] See supra notes 7–8 and accompanying text.

[15] Unanimous Three-Judge Panel Upholds N.C. Election Maps, Appeal Likely, Carolina Journal (Jan. 11, 2022, 5:43 PM), https://www.carolinajournal.com/news-article/unanimous-three-judge-panel-upholds-n-c-election-maps-appeal-likely/.  

[16] Id.

[17] Id.

[18] Id.

[19] Ethan Cohen, North Carolina Supreme Court Strikes Down Redistricting Maps, CNN Politics (Feb. 4, 2022, 7:59 PM), https://www.cnn.com/2022/02/04/politics/north-carolina-redistricting-struck-down/index.html.  

[20] Harper v. Hall, 868 S.E.2d 499, 546 (N.C. 2022).

[21] Id. at 544.

[22] Id. at 559.

[23] Michael Wines, North Carolina Court Imposes New District Map, Eliminating G.O.P Edge, N.Y. Times (Feb. 23, 2022), https://www.nytimes.com/2022/02/23/us/politics/north-carolina-maps-democrats.html.  

[24] Id.

[25] Id.

[26] What Redistricting Looks Like in Every State, FiveThirtyEight (Mar. 22, 2022, 4:50 PM), https://projects.fivethirtyeight.com/redistricting-2022-maps/north-carolina/.  

[27] Id.

[28] Moore v. Harper, SCOTUSblog, https://www.scotusblog.com/case-files/cases/moore-v-harper/ (last visited Mar. 7, 2022).

[29] Adam Liptak, Supreme Court Allows Court-Imposed Voting Maps in North Carolina and Pennsylvania, N.Y. Times (Mar. 7, 2022), https://www.nytimes.com/2022/03/07/us/supreme-court-voting-maps.html (arguing “that the state legislature has sole responsibility for drawing congressional districts and that state courts have no role to play”).

[30] Richard L. Hasan, North Carolina Republicans Ask SCOTUS to Decimate Voting Rights in Every State, Slate (Feb. 25, 2022, 7:32 PM), https://slate.com/news-and-politics/2022/02/north-carolina-republicans-scotus-gerrymandeering-assault.html.  

[31] U.S. Const. art. I, § 4.

[32] Hasan, supra note 30.

[33] Id.

[34] Rusty Jacobs, Supreme Court Filing in NC Redistricting Matter Poses Thorny Questions for Conservatives, WFAE 90.7 (Feb. 28, 2022, 5:03 PM), https://www.wfae.org/politics/2022-02-28/supreme-court-filing-in-n-c-redistricting-matter-poses-thorny-questions-for-conservatives.  

[35] Hasan, supra note 30.

[36] Liptak, supra note 29.

[37] Id.

[38] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Alito, J., dissenting), https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf.

[39] Id. s

[40] Id.

[41] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Kavanaugh, J., concurring), https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf.

[42] Id. at 2.

[43] Id. at 1.

[44] Ian Millhiser, The Fate of American Elections Is in Amy Coney Barrett’s Hands, Vox (Mar. 4, 2022, 8:00 AM), https://www.vox.com/22958543/supreme-court-gerrymandering-redistricting-north-carolina-pennsylvania-moore-toth-amy-coney-barrett.  

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22Feb

When the Free Speech, Free Exercise, and Establishment Clauses Collide: Setting the Stage for Kennedy v. Bremerton School District and Its Potential Impact on Public Employees’ First Amendment Rights

Categories: Current Issues Blog
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By Jonathon Beatty

What happens when a public-school employee’s free speech and free exercise rights run contrary to the Establishment Clause of the First Amendment?[1]  The Supreme Court will answer that question in Kennedy v. Bremerton School District[2] and shed light on the intersection of the Free Speech, Free Exercise, and Establishment Clauses.[3]  Specifically, the Court granted certiorari on two questions: (1) “[w]hether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection”; and (2) “whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.”[4]

Bremerton School District (“BSD”) employed Kennedy as a football coach.[5]  A practicing Christian, he felt an obligation to “give thanks through prayer, at the end of each game.”[6]  He would kneel on the 50-yard line, where spectators could observe, and say a prayer alone.[7]  Over time, students began to join him, eventually growing to “include the majority of the team.”[8]  Although he never explicitly or implicitly required participation, BSD ordered Kennedy to stop for fear that, as a government employee, he was violating the Establishment Clause,[9] which requires government neutrality toward religion.[10]  This culminated in a recommendation against his rehiring due to his “fail[ure] to follow district policy.”[11]

Subsequently, Kennedy filed suit, arguing that BSD had violated his free speech and free exercise rights.[12]  The district court rejected his claims, holding that “BSD’s actions were justified due to the risk of an Establishment Clause violation.”[13]  The Ninth Circuit affirmed, agreeing “that BSD would have violated the Establishment Clause by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him.”[14]

The free speech right of public employees is a complex legal issue.  As many questions in the law do, it requires striking a balance, this time between the right of the employee to be free from government censorship and the right of the government to ensure its employees act consistent with their duties, including constitutional requirements.  The Supreme Court has made clear, for example, that “[t]he problem . . . is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[15]  Put differently, their employment necessarily curtails their First Amendment rights in order for them to do their job correctly.  It involves, like many aspects of life, a tradeoff. But striking the right balance is a difficult task.

Start with the free speech rights of public employees.  It is settled law that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.”[16]  State employees have free speech rights, and the use of those rights may not form the basis for which he or she is terminated or otherwise denied employment.[17]  In Pickering v. Board of Education,[18] for example, the Court held unconstitutional the termination of a teacher who overtly criticized the school board for its allocation of funding.[19]  The basis for the teacher’s dismissal ran afoul of democratic norms  epitomizing self-government for which “free and open debate is vital.”[20]  Teachers do not forfeit their rights “at the schoolhouse gate.”[21]

The extent of an employee’s “interest in freedom of expression,” however, is far from absolute and depends on the context in which the right was exercised.  In Garcetti v. Ceballos, for instance, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[22]  As any private employer could, a government employer can mandate or prohibit certain expression within reason.[23]

The idea is that the required or forbidden expression is the product of the employment, not of the employee’s private life and thus the liberties that attach.[24]  As the Court puts it, “It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”[25]  The crucial question is whether the public employee is acting as a citizen or in his or her official capacity.  If the former, the Court has “unequivocally rejected” the notion “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens.”[26]  And if the latter, employers of all kinds may control the speech of “an employee in his or her professional capacity,” because “[o]fficial communications have official consequences” that impact “the employer’s mission.”[27]

Moreover, the free exercise rights of public employees are equally complex and involve a similar tradeoff between citizen liberty and employer interest.  This time, however, the conflict lies directly in the First Amendment, which prohibits the government’s “respecting an establishment of religion” while simultaneously guaranteeing to citizens “the free exercise thereof.”[28]  The question is at which point a government employee’s “free exercise” constitutes the government’s “respecting an establishment of religion.”

The Court has held “that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”[29]  Religion may not excuse citizens from complying with a neutral law that applies generally to everyone.[30]  Otherwise, “professed doctrines of religious belief [would become] superior to the law of the land . . . and . . . permit every citizen to become a law unto himself.”[31]  The Free Exercise Clause, therefore, applies to a non-neutral law that targets expression because it is religious, not simply because the expression falls within the law’s purview.[32]

Even when the government targets religious expression because it is religious, a Free Exercise claim does not necessarily prevail.  The Court has held that “a state interest in avoiding an Establishment Clause violation ‘may be characterized as compelling,’ and therefore may justify content-based discrimination.”[33]  As BSD argued in Kennedy, allowing Kennedy’s prayers to continue as is would constitute government action sufficient to violate the Establishment Clause and thus justify the prohibition on Kennedy’s conduct.[34]  Nonetheless, the Court has underscored on numerous occasions that the mere presence of religious conduct on public-school property is not under all circumstances sufficient to violate the Establishment Clause.[35]

Therefore, the stage is set for the Court.  It will decide (1) whether the speech falls within Kennedy’s “professional capacity” and thus lacks First Amendment protection; and (2) whether, assuming it does not, BSD nevertheless has satisfied strict scrutiny in avoiding an Establishment Clause violation by means “narrowly tailored to advance that [compelling] interest.”[36]  Perhaps Kennedy was acting as a citizen.  And if he was, perhaps this is one of those circumstances where there was no state action sufficient to constitute an Establishment Clause violation.  The Court will soon settle the issue.

[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .”).

[2] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021), cert. granted, 142 S. Ct. 857 (2022).

[3] U.S. Const. amend. I.

[4] Kennedy v. Bremerton School District, SCOTUSblog, https://www.scotusblog.com/case-files/cases/kennedy-v-bremerton-school-district-2/ (last visited Feb. 22, 2022); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 857 (2022) (granting certiorari).

[5] Kennedy, 991 F.3d at 1010.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 1011.

[10] Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) (“[W]e have held that ‘a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.’” (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995))) (alteration in original).

[11] Kennedy, 991 F.3d at 1014.

[12] Id.

[13] Id.

[14] Id. at 1022–23.

[15] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[16] Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)).

[17] Id.

[18] 391 U.S. 563.

[19] Id. at 566–67.

[20] Pickering, 391 U.S. at 571–72; see Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“For speech concerning public affairs is more than self-expression; it is the essence of self-government.”).

[21] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[22] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

[23] Id. at 418 (“Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”).

[24] Id. at 421–22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.”).

[25] Id. at 422.

[26] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[27] Garcetti, 547 U.S. at 422–23.

[28] U.S. Const. amend. I.

[29] Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Emp. Div. v. Smith, 494 U.S. 872 (1990)).

[30] See Smith, 494 U.S at 878–79 (“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct the State is free to regulate.”).

[31] Id. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166–67 (1879)).

[32] Church of Lukumi Babalu Aye, 508 U.S. at 532 (“[T]he protections of the Free Exercise Clause pertain if the law at issue . . . regulates . . . conduct because it is undertaken for religious reasons.”).

[33] Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112–13 (2001) (quoting Widmar v. Vincent, 454 U.S. 263, 271 (1981)).

[34] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1009 (2021).

[35] See Good News Club, 533 U.S. at 115 (“[W]e have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises . . . .”).

[36] Church of Lukumi Babalu Aye, 508 U.S. at 531–32.

Post image by Phil Roeder on Flickr

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20Jan

Is Osha Overstepping? The Vaccine Mandate That Perplexed the Circuit Courts Offered the Supreme Court a Rare Opportunity to Clarify OSHA’s Emergency Rulemaking Authority

Categories: Current Issues Blog
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By: Tanner Henson 

In 1970, Congress enacted the Occupational Safety and Health Act (“OSH Act” or “the Act”), a sweeping piece of legislation, aimed at “assur[ing] so far as possible every working man and woman in the Nation safe and healthful working conditions[.]”[1] To enforce the new legislation, Congress created a new government agency, the Occupational Safety and Health Administration (“OSHA”),[2] under the authority of the Secretary of Labor.[3]

Under the OSH Act, OSHA primarily seeks to protect the American workforce by promulgating specific standards through its formal rulemaking process, either “on its own initiative or in response to petitions submitted to the agency by various government agencies, the public, or employer and employee groups.”[4] This is traditionally a time-consuming process. Between 1981 and 2010, the Congressional Research Service found that on average, ninety-three months elapsed between OSHA beginning formal consideration of a specific standard and its promulgation.[5] The same study further indicated that this average is generous, as it did not include time spent preliminary to formal proposal of the rule, which often includes years “developing the idea for the standard and meeting with stakeholders.” [6] It also did not include the time spent in judicial review.[7] When these time periods were included, the Congressional Research Service found that it was not uncommon for 138 months to elapse between the inception of the idea behind the specific standard and its enactment.[8]

Given this onerous process, OSHA cannot issue specific standards for every hazard the working public might encounter. Aware of this reality, the drafters of the Act included a useful catchall­—the general duty clause—which provides that at a minimum, each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]”[9] However, to establish a general duty clause violation, the Secretary of Labor must establish that “(1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) feasible and effective means existed to materially reduce the hazard.”[10] While the general duty clause serves a necessary function—it allows OSHA to hold businesses accountable for harms caused by known hazards not covered by a specific standard—in practice, the Secretary is most often successful in proving these elements where death or serious injury has already occurred,[11] which hampers its effectiveness.

As the formal rulemaking process is time-consuming,[12] and the general duty clause lends itself to retroactive applications,[13] the Congressional drafters of the OSH Act included a seldom mentioned alternative, which allows the Secretary of Labor to promulgate an Emergency Temporary Standard (“ETS”) with immediate effect, “if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”[14] However, in its fifty year history, OSHA has issued just ten emergency temporary standards, six of which have been challenged in the courts, with only one surviving judicial review.[15] In fact, until November, OSHA had not issued an ETS since 1983,[16] when the Fifth Circuit invalidated the administration’s ETS seeking to decrease the acceptable levels of asbestos exposure in the workplace.[17]

On November 5, 2021, in response to an order from President Biden,[18] OSHA did what it had not done in nearly forty years;[19] it promulgated an ETS mandating that employers with more than 100 employees either require employees to undergo weekly COVID-19 testing or become fully vaccinated by January 4, 2022 (“ the mandate”).[20] However, two days after OSHA enacted its ETS, the Fifth Circuit stayed the mandate’s enforcement “pending briefing and expedited judicial review.”[21] After review, the court reaffirmed its initial stay,[22] halting enforcement across the nation, holding that the petitioners were likely to succeed on the merits as the OSH Act did not confer on OSHA constitutional authority “to make sweeping pronouncements on matters of public health.”[23] The court wrote further, entertaining what it called “the dubious assumption that the mandate does pass constitutional muster[,]”[24] noting that the mandate was improperly tailored.[25] Specifically, the court wrote that the mandate was “both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse)[,]”[26] as well as underinclusive, as the mandate purports to “save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers form the very same threat.”[27] The court further questioned whether such an ETS is needed, as the “entire globe” has endured the “emergency” for nearly two years.[28]

Following the Fifth Circuit’s ruling on November 16, “the Judicial Panel on Multidistrict Litigation consolidated the cases challenging the ETS.”[29] When this occurred, the panel conducted a random lottery involving all U.S. Courts of Appeal and transferred the consolidated case to the Sixth Circuit,[30] where a divided panel reinstated the mandate,[31] holding “that OSHA’s authority includes protection against infectious diseases . . . .”[32] The court further stated that “it makes sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in its arsenal.”[33] The court took particular issue with the Fifth Circuit’s skepticism regarding the emergency, providing that “it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace.”[34]

After the Sixth Circuit’s ruling, it appeared briefly that the mandate would go into effect on January 10;[35] however, on December 22, the Supreme Court announced that it would hold a special session on January 7, 2022 to hear arguments in a challenge to the mandate.[36] During those arguments, the Court’s three liberals signaled support for the mandate, with Justice Breyer stating “[t]here are 750,000 people who got this yesterday. Hospitals are full to overflowing. There is a problem. It seems to me that every minute these things are not in effect, thousands more people are getting this disease[.]”[37] However, given the Court’s current conservative majority, for the liberal justices to prevail, the vote of Chief Justice Roberts is of practical necessity.[38] During arguments, the Chief Justice signaled his ultimate disapproval of the mandate in a troubling back-and-forth for its proponents, stating specially, “[i]t sounds like the sort of thing that states will be responding to or should be or—and that Congress should be responding to or should be, rather than agency by agency, the federal government, the executive branch, acting alone[.]”[39]

Given the tenor of oral argument, it came as little surprise that on January 13, the Supreme Court reversed the Sixth Circuit, granting the petitioners’ application to stay enforcement of the mandate.[40] The Court found that the petitioners were likely to succeed on the merits of their case, agreeing with the Fifth Circuit and characterizing the mandate as a “blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19.”[41] The Court, however, also found “that the Secretary lacked authority to impose the mandate.”[42] Noting that OSHA can only exercise power that Congress provides by statute, the Court analyzed the language of the ETS statute and concluded that it empowered OSHA “to set workplace safety standards, not broad public health measures.”[43] The Court further took issue with the characterization of COVID as a work-related danger, noting that “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.”[44] The Court reasoned, that the risk presented by COVID-19 is little different than “the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazard of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”[45]

Whatever the Courts ultimate ruling on the merits, its opinion granting petitioners’ request for an emergency stay both clarifies the meaning of the terms “workplace” and “occupational hazard,” as they appear in the statute, as well as provides a rare glimpse into the confines of OSHA’s emergency rulemaking authority.

[1] 29 U.S.C. § 651(b).

[2] About OSHA, https://www.osha.gov/aboutosha (last visited Jan. 13, 2022).

[3] 29 U.S.C. § 652(1).

[4] Scott D. Szymendera, Cong. Rsch. Serv., R46288, Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers 1 (2022).

[5] Id. at 3.

[6] Id.

[7] Id.

[8] Id.

[9] 29 U.S.C. § 654.

[10] Michael A. Logan, Regulation of Workplace Violence Under OSHA’s “General Duty” Clause, Kane Russell Coleman Logan (May 22, 2019), https://www.krcl.com/insights/regulation-of-workplace-violence-under-oshas-general-duty-clause.

[11] See Opinion at 22, Secretary of Labor v. Integra Health Management, Inc., (2019) (No. 13–1124), https://www.chamberlitigation.com/sites/default/files/cases/files/19191919/Opinion%20–%20Secretary%20of%20Labor%20v.%20Integra%20Health%20Management%2C%20Inc.%20%28Occupational%20Safety%20and%20Health%20%28OSH%29%20Review%20Commission%29_0.PDF (finding a violation of the general duty clause where a healthcare service coordinator was stabbed to death by a mentally unstable client). 

[12] See supra notes 4–8.

[13] See supra notes 9–11.

[14] 29 U.S.C. § 655(c)(1).

[15] BST Holdings, LLC v. Occupational Safety and Health Admin., U.S. Dep’t of Lab., 17 F.4th 604, 609 (5th Cir. 2021).

[16] Syzmendera, supra note 4, at 1.

[17] Asbestos Information Ass’n/North Am. v. Occupational Safety and Health Admin., 727 F.2d 415, 425–27 (5th Cir. 1984).

[18] Press Release, The White House, New OSHA and CMS Rules Mean Two-Thirds of All Workers Now Covered by Vaccination Rules (Nov. 4, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/.

[19] See supra note 16.

[20] 29 C.F.R. § 1910.501(m) (2021).

[21] BST Holdings, 17 F.4th at 609.

[22] Id.

[23] Id. at 611 (citing Ala. Ass’n of Realtors v. Dep’t of Health and Human Servs., 141 S. Ct. 2485, 2488 (2021)).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Sixth Circuit Lifts Stay of OSHA Emergency Vaccine Mandate For Large Employers, McGuireWoods (Dec. 19, 2021), https://www.mcguirewoods.com/client-resources/Alerts/2021/12/sixth-circuit-lifts-stay-of-osha-emergency-vaccine-mandate-for-large-employers.

[30] Id.

[31] In re. MCP No. 165, No. 21–4027, slip op. at 37 (6th Cir. Dec. 17, 2021).

[32] Id. at 36.

[33] Id. at 13–14.

[34] Id. at 25.

[35] Lisa Nagele-Piazza, OSHA’s Vaccine-Or-Testing Rule is Back, Unless Supreme Court Says Otherwise, SHRM (Dec. 20, 2021), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/sixth-circuit-osha-ets.aspx.

[36] Stuart M. Gerson & Traycee E. Klein, Supreme Court Grants Rare Hearing On Stays In Vaccine Mandate Cases, Ntl. L. Rev. (Dec. 29, 2021), https://www.natlawreview.com/article/supreme-court-grants-rare-hearing-stays-vaccine-mandate-cases.

[37] Megan Leonhardt, The Supreme Court Just Signaled It Could Block Biden’s Nationwide Vaccine Mandate, Fortune (Jan. 7, 2020, 4:43 PM), https://fortune.com/2022/01/07/supreme-court-biden-vaccine-mandate/.

[38] See Amelia Thomson-DeVeaux, Roberts is the New Swing Justice. That Doesn’t Mean He’s Becoming More Liberal, FiveThirtyEight (July 16, 2020), https://fivethirtyeight.com/features/roberts-is-the-new-swing-justice-that-doesnt-mean-hes-becoming-more-liberal/.

[39] Amy Davidson Sorkin, Vaccine Mandates Have a Bad Day at the Supreme Court, Atl. (Jan. 8, 2022), https://www.newyorker.com/news/daily-comment/vaccine-mandates-have-a-bad-day-at-the-supreme-court.

[40] Nat’l Fed’n of Indep. Bus. v. Dept. of Lab, Occupational Safety and Health Admin., Nos. 21A244 and 21A247, slip op. at 9 (U.S. Jan. 13, 2022).

[41] Id. at 3.

[42] Id. at 5.

[43] Id. at 6.

[44] Id.

[45] Id. at 6–7.

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14Oct

Constitutional Cussing

Categories: Current Issues Blog
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By: Joseph C. Johnson

On May 5, 2019, Dillon Webb was pulled over by a sheriff’s deputy in Columbia County, Florida, for a sticker that read “I EAT A*S” on the rear window of his truck.[1]  Webb was arrested under a Florida obscenity statute after refusing to alter the sticker, and the officers that made the arrest were granted qualified immunity.[2]  Similarly, Paul Robert Cohen was convicted under a California obscenity statute in 1971 for wearing a jacket that read “F**k the Draft” in a California county courthouse.[3]  However, the Supreme Court of the United States held that a state may not criminalize the public display of an expletive without a specific, compelling reason.[4]  On the surface, these two cases appear to ask the same question–whether a state may prohibit the public display of an obscene word or phrase without violating the constitutional rights granted by the First Amendment.  So why were the officers in Webb’s case granted qualified immunity while the First Amendment protected Cohen’s jacket from a similar obscenity statute?

In Cohen’s case, the constitutional protection of his speech depended on the context in which he displayed the four-letter word.[5]  There, Cohen donned the jacket he had emblazoned with “F**k the Draft” in the Los Angeles County Courthouse corridor.[6]  He testified that he wore the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.”[7]  In its analysis, the Supreme Court found that his jacket’s message was not erotic in nature–that it would not “conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket”–and thus, it was not truly a question of obscenity.[8]  The Court reversed Cohen’s conviction for several reasons, the most relevant of which here are (1) forbidding particular words creates a high risk of suppressing ideas, and (2) that “linguistic expression . . . conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.”[9]  This decision illuminated a specific area of speech that the First Amendment protects and warned against government bans on specific words to prevent the expression of unpopular views.[10]

To distinguish Webb’s case involving his window sticker, the United States District Court for the Middle District of Florida focused on the context of his arrest.[11]  Sheriff’s deputy English noticed Webb’s sticker at a stoplight and stopped Webb’s vehicle because he believed the sticker to violate Florida’s obscenity statute.[12]  Deputy English commanded Webb to remove a letter from the window sticker, but Webb refused to do so under the claim that the First Amendment protection of free speech included his window sticker.[13]  Deputy English contacted his supervisor and subsequently arrested Webb and had his vehicle towed.[14]  This case boiled down to Deputy English’s belief at the time that his actions were within the state’s power.[15]  The District Court found that a reasonable officer in Deputy English’s position could have reasonably believed that Webb’s sticker depicted a sexual act, thus potentially violating Florida’s obscenity statute.[16]  This reasonable belief, supported by Webb’s contention that the sticker was sexual in nature, granted qualified immunity to Deputy English and his supervisor.[17]  The Court put particular emphasis on the sexual nature of Webb’s sticker, citing this as the reason that it is distinct from similar cases–indeed, using it to distinguish the case from Cohen specifically.[18] 

The District Court for the Middle District of Florida held that an officer could have reasonably believed that the sticker was obscene per Florida’s obscenity laws, which was distinct from Cohen’s jacket.[19]  On the other hand, Cohen’s jacket was constitutionally protected because it was not erotic in nature despite the expletive on it.[20]  As such, a rule regarding public displays of expletives is further illuminated.  So long as the message cannot be reasonably interpreted to depict a sexual act or be otherwise erotic in nature, it will be constitutionally protected despite the expletives it includes.

[1] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2 (M.D. Fla. Sept. 23, 2021).

[2] Id. at *4, *19–21.

[3] Cohen v. Cal., 403 U.S. 15, 16 (1971).

[4] Id. at 26.

[5] Id. at 19–21.

[6] Id. at 16.

[7] Id. at 16 (citing 81 Cal. Rptr. 503, 505 (1969)).

[8] Id. at 20.

[9] Id. at 26. 

[10] Columbia University, Cohen v. California, Global Freedom of Expression (Oct. 9, 2021, 3:00 PM),  https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/.

[11] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2–7 (M.D. Fla. Sept. 23, 2021).

[12] Id. at *2.  See Fla. Stat. § 847.011.

[13] Webb v. English, 2021 U.S. Dist.  LEXIS 181927, at *3.

[14] Id. at *4.

[15] Id. at *14–21.

[16] Id. at *18.

[17] Id. at *19–22.

[18] Id. at *18–26.

[19] Id. at *26.

[20] Cohen v. Cal., 403 U.S. 15, 20 (1971).

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