A Promise Deferred: An Examination of Accessibility’s Intersection with Race/Ethnicity in the Philadelphia Transit System and the New York City Subway

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Henry Goldberg, J.D. Candidate, 2023, Columbia Law School; B.A., 2020, Vanderbilt
University.

Over thirty years after the passage of the Americans with
Disabilities Act, Philadelphia’s rail and trolley networks and New
York City’s subway system are still terrible for accessibility. In New
York, a mere 24–28% of stations are accessible. For people with
disabilities—particularly mobility disabilities—this makes the
accessible parts of the two cities’ transit systems invaluable for
everything from economic prosperity to general connectivity to the
rest of their communities. Thus, one might wonder who has access to
this vital resource. Is station accessibility split up along racial/ethnic
lines? If so, what remedies might exist under Title VI and/or the ADA
to fix that?
This Note employs an empirical analysis in order to answer
the first question, relying on geospatial data paired with
corresponding Census demographic data. The results of the linear
and logistic regressions indicate that race is indeed correlated with accessibility levels. In Philadelphia, stations are less likely to be
accessible when located in areas with higher concentrations of Black
residents, and in New York City, they are less likely to be accessible
when located in areas with higher concentrations of Latine and, in
particular, Afro-Latine residents. The Federal Transit
Administration’s forthcoming revised Circular offers an opportunity
to correct this problem. Failing that, however, there is likely enough
evidence to warrant at least the filing of an administrative complaint
under Title VI.

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Family Moves and the Future of Public Education

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Elizabeth Chu. Executive Director, Columbia Center for Public Research and Leadership; Lecturer of Law, Columbia Law School.

James S. Liebman. Simon H. Rifkind Professor, Columbia Law School.

Madeline Sims. Director of Consulting and Legal Strategy, Columbia Center for Public Research and Leadership.

Tim Wang. Law Clerk, U.S. District Court for the Eastern District of New York.

State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack—from some for unconstitutionally coercing families to expose their children to non-neutral values to which they object and from others for ignoring the developmental needs of students, particularly students of color and in poverty whom public schools have long underserved. This Article argues that fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as equal choosers. To be sure, those values are not neutral. But as Brown v. Board famously concluded, their promotion in public schools is perhaps the nation’s and states’ single most compelling interest, because it is essential to the ability of people with diverse beliefs to live together harmoniously while preserving their vast freedoms in other respects. To keep public education from qualifying those freedoms any more than necessary, states give families a right to opt for private education, but at their own expense. This arrangement serves the compelling interest in public education, however, only if public schools—bolstered by compulsory education laws and their uniquely full public subsidization—attract enough families. For well over a century, public schools have attracted around 90% of all school children. Today, however, family moves away from public education are eroding its ability to attract children due principally to public education’s conflation of “public” with bureaucratically “uniform” education—precluding pedagogically, democratically, and equitably essential differentiation among students. The Article proposes ways public schools can better model liberal democratic values by engaging all families in the cooperative and differentiated direction of their children’s learning.

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Human Frailty, Unbreakable Victims, and Asylum

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Rebecca Sharpless is Professor of Law at the University of Miami School of Law.

Kristi E. Wintermeyer is a forensically trained, board certified psychiatrist practicing in the PTSD program at the Bruce W. Carter Miami Veterans Affairs Healthcare System.

This article analyzes the asylum decisions of immigration agencies and federal appellate courts and demonstrates that the case law driven standard for persecution is out of step with the original meaning of the term, international law standards, and contemporary understanding of how human beings experience physical and mental harm. Medical and psychological evidence establishes that even trauma at the lower end of the spectrum of severity can inflict lasting and debilitating effects on people’s health. Yet over the last three decades, virtually no court decisions have decreased the showing of harm needed to establish persecution. To the contrary, courts have generally ratcheted up what is required. Today, most judicial decisions rest on the unwarranted assumption of an unbreakable asylum applicant who must show systematic and escalating physical mistreatment over a sustained period or a single instance of extraordinary harm that results in a scar, disability, or other lasting physical injury. Although mental harm can qualify as persecution, courts rarely find persecution based solely on mental mistreatment. And courts routinely fail to consider the longstanding mental effects of physical trauma. Court decisions on persecution are consistent with troubling studies suggesting people have difficulty empathizing with, and understanding, the situations of others when there is a lack of immediacy, and that decision makers and authority figures are prone to making racialized attributions of pain on the baseless assumption that people of color can withstand more pain than white people. Decision makers should seek to minimize the tendency to downplay the pain of others in asylum adjudications and adopt a human rights approach, which tags the concept of persecution to the violation of a human right and better tracks the prevailing understanding of how humans experience both physical and mental mistreatment, which grows more encompassing over time.

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Impeachment, Disqualification, and Human Rights

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Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School.

Disqualification after impeachment prevents the return of unfit leaders to power by barring their re-election—but for how long? This article examines international human rights decisions on the duration of post-impeachment disqualification, including an important 2022 opinion of the European Court of Human Rights, along with the experience of impeachment in the United States. The neglected history of impeachment in U.S. states adds dimensions to the thinner narrative of impeachment at the U.S. federal level. The European insistence on keeping disqualification proportionate resonates with a minority practice of partial disqualification in the states. Nonetheless, the European Court’s prohibition of irreversible lifelong disqualification may be too rigid for democracies under threat.

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Transnational Business Deals and the Professional Obligations of Lawyers

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Susan Rose-Ackerman, Henry R. Luce Professor of Law and Political Science, Emeritus, Yale University, and Professorial Lecturer, Yale Law School.

Professional codes of ethics regulate lawyers’ conduct and prioritize loyalty to their clients’ legitimate interests. Clearly, effective legal representation is an essential aspect of every attorney’s responsibility. However, this essay goes further and asks if it is sufficient in one important class of cases—legal assistance in the negotiation and implementation of transnational business deals. This essay argues that, at least for such transactions, legal professionals have ethical obligations that extend beyond the interests of their principals and should include recognition of broader social, environmental, and human rights concerns. But if legal professionals accept that claim, how can such obligations be articulated and enforced without undermining attorneys’ primary obligations to their clients? This essay makes a preliminary attempt to frame an answer.

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Rights to Nowhere: The IDEA’s Inadequacy in High-Poverty Schools

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Associate Professor, University of South Carolina School of Law.

The Individuals with Disabilities Education Act (“IDEA”) successfully opened the schoolhouse doors to millions of students with disabilities. But more than forty years after its enactment, the law has proven largely inept at confronting the educational inequities faced by the many students with disabilities attending underfunded, high-poverty public schools. This shortcoming is inconsistent with common conceptions of the IDEA: Advocates and policymakers alike treat the IDEA’s rights and privately enforceable remedies as strong, meaningful tools. This Article theorizes that the IDEA’s under-appreciated failures are overlooked because they are the products of the law’s internal structure, undue judicial deference to schools, and litigation that targets procedural injuries rather than substantive educational practices.

The IDEA’s core procedural rights are meant to guarantee students with disabilities an appropriate education in the most integrated setting possible. Yet, in high-poverty schools, virtually none of the law’s promises are realized. The IDEA’s rights are tethered to an assumption that schools are operating with an adequate level of capacity and proficiency, but under-resourced schools lack the ability to ensure either. As a result, the law’s three core principles—procedural rights, appropriate education, and integrated settings—are badly diminished for students with disabilities in high-poverty schools. Essentially, individual students are unable to leverage the IDEA’s rights for meaningful remedies, and they are thwarted by courts when they attempt broader programmatic change. Meanwhile, advocates’ emphasis on enforcing procedural rights merely strengthens the law’s structural weaknesses. Fulfilling the IDEA’s purpose requires a shift in how courts and advocates understand the law’s limitations in under-resourced schools. It also requires a growth in political will to incentivize and fund local solutions aimed at improved student outcomes. This Article proposes a framework for such a shift.

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A Quadruple Doctrinal Framework of Free Speech

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S.J.D., Duke Law School; LL.M., Harvard Law School.

Existing theories and doctrines of free speech have focused on why the freedom to express is indispensable for realizing the values that we treasure, such as truth or democracy. However, how expression facilitates those values is underexplored. This Article proposes a doctrinal framework of free speech consisting of four parts: right of control over one’s information, right to know, right of access to platforms, and behavioral rules of public discussion. These are the constitutive parts that are necessary for the exercise of free speech to be meaningful and effective. After elaborating on these elements, this Article tests the framework by analyzing four cases: the European Union’s Right to Be Forgotten, the information disclosure laws of China, the blocking of Trump’s Twitter account, and the Indian hate speech incident. Those four cases offer a more comprehensive scenario as to how the quadruple framework operates in real contexts.

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Closing the Health Justice Gap: Access to Justice in Furtherance of Health Equity

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Associate Professor and Director, Health Justice Alliance Law Clinic at Georgetown University Law Center; J.D., Stanford Law School; B.A., University of Maryland.

A massive civil “justice gap” plagues the United States. Every day, low-income Americans—and disproportionately people of color—go without the legal information and representation they need to enforce their rights. This can cost them their homes, jobs, food security, or children. But unmet civil legal needs in housing, employment, and public benefits, for example, are not simply injustices—they are well-documented drivers of poor health, or social determinants of health. Those marginalized by virtue of both race and socioeconomic status are particularly harmed by inaccessibility to justice and also by chronic health conditions and lower life expectancy. When a tenant walks into court alone for an eviction hearing and faces an experienced landlord’s attorney, the tenant is unlikely to prevail, and her eviction can lead to myriad poor health outcomes.

The health justice movement leverages law and policy to advance health equity. In recent years, it has gained tremendous traction, especially due to the COVID-19 pandemic’s spotlight on health disparities. In tandem, the access to justice movement is progressing with the advancement of major federal, state, and local legislation and initiatives. However, the movements have been running on parallel tracks, and their connections have been under-examined. This Article puts the two movements and bodies of scholarship squarely in dialogue with one another.

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Critical Infrastructure, Environmental Racism, and Protest: A Case Study in Cancer Alley, Louisiana

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J.D. Candidate 2022, Columbia Law School; B.A., 2015, Bowdoin College.

The ability to assemble, protest, and air grievances in the public sphere of one’s community is not only a cherished right but is also an essential safeguard of other rights. In the Black communities of Cancer Alley, a polluted industrial corridor in Southern Louisiana, the state’s critical infrastructure law has rendered protest on or near the region’s ubiquitous industrial infrastructure a felony. This Note describes the history of critical infrastructure laws in states across the country, as well as the legal challenges brought against critical infrastructure laws and their counterparts. Louisiana’s critical infrastructure law, when intersected with environmental racism, has the potential to disproportionately criminalize protest in Black communities. Equal Protection and First Amendment law do not adequately address this disproportionate censorship of Black communities based on their high concentration of environmental hazards. This Note proposes two solutions: first, Arlington Heights may be read to allow the historical context and history of segregation in a region act as evidence of discriminatory intent; second, Time, Place, and Manner doctrine can be easily expanded to incorporate issues of racial geography.

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A Prosecutor with a Smoking Gun: Examining the Weaponization of Race, Psychopathy, and ASPD Labels in Capital Cases

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JD Candidate 2022, Columbia Law School; B.A. 2019, New York University.

Prosecutors play a central role both in weaponizing personality disorder labels in capital cases and in oppressing Black, Indigenous, and People of Color (“BIPOC”) within the criminal legal system. This is especially true for antisocial and psychopathic personality disorder labels. Because there are common mechanisms underlying both processes, it is possible that prosecutors’ misuse of these personality disorder labels is susceptible to racialization. Thus, we may contextualize prosecutors’ exploitation of personality disorder labels in capital cases within the larger historical project of upholding white supremacy and subjugating people of color.

As long as the death penalty is vulnerable to implicit biases held by agents within the criminal legal system and subject to racially disparate applications, lawmakers must implement change. Lawmakers must transform the death penalty through implementing evidentiary, educational, and disciplinary safeguards that target each actor involved in these decisions. If these precautions, collectively, are not sufficient, lawmakers must abolish state and federal governments’ power to execute their citizens.

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Behind the Blue Wall of Silence: Racial Disparities in NYPD Discipline

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J.D. Candidate 2022, Columbia Law School; B.A. 2016, Middlebury College.

This Note presents the first contemporary empirical study of racial disparities in New York City Police Department (“NYPD”) discipline. Historically, the NYPD, like many departments across the country, applied its enormous disciplinary discretion in secrecy. That changed in June of 2020, when New York City publicly released thousands of civilian complaints and disciplinary decisions. Analysis of these newly released data reveals significant racial disparities in discipline of police officers. More fundamentally, these data demonstrate the NYPD’s extreme leniency towards police misconduct of all kinds and its disregard of recommendations by the Civilian Complaint Review Board. These findings call for greater transparency in New York and around the country. Greater transparency will encourage participation by both officers of color and the public in discourse about police reform, leading to shifts in public opinion and playing an essential role in the pathway to police abolition.

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The Road to Racial Justice: Resolving the Disproportionate Health Burden Placed on Communities of Color by Highway Pollution

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Wendy Xiao is a member of the Columbia Law School class of 2021.

The ubiquity of highways and their presence in our lives belies the fact that they developed as a prominent mechanism for racial discrimination. During the development of the Interstate Highway System, government officials across the United States deliberately rammed federally funded highways through communities of color, leading to increases in crime and lack of access to goods and services. These vulnerable communities continue to feel the effects of the racially motivated placement of highways. Recent research has focused on an additional burden placed upon minority populations because of highway location—traffic-based air pollution. This pollution causes numerous lifelong physical adverse health effects in children, such as respiratory illness, cardiovascular disease, and developmental delay. It even affects cognitive functions in adults, including productivity and impulse control. The deadly effects of pollutants are highlighted by the COVID-19 pandemic, as exposure to highway pollution is linked to an increased mortality rate. These health burdens are disproportionately borne by communities of color. As the adverse health effects of highway pollution and the disparate impact highway pollution has on communities of color become increasingly clear, government officials at all levels have still failed to take meaningful action in addressing this human rights and public health issue. This Note analyzes a range of existing recommendations and legislation at a federal, state, and local level. Ultimately, by examining in particular the measures against highway pollution taken in Los Angeles, New York City, and Boston, it is clear that the status quo is not sufficient to protect communities of color. Therefore, government officials must adopt a number of known community development best practices. If they fail to do so, individual citizens, empowered by the Fair Housing Act, should force action from government officials.

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Willful Blindness: Challenging Inadequate Ability to Pay Hearings Through Strategic Litigation and Legislative Reforms

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Jack Furness is a member of the Columbia Law School class of 2021.

Roughly ten million Americans owe court-ordered economic sanctions, known as Legal Financial Obligations (LFOs). Oftentimes, payment of these fees is a condition of probation; when an individual is unable to make payments their probation may be revoked, resulting in incarceration. In 1983, the Supreme Court handed down its opinion in Bearden v. Georgia, explaining that states may only revoke probation for nonpayment of LFOs upon a showing that the nonpayment was “willful,” a determination that must be made in court through an ability to pay hearing. Since Bearden, the Supreme Court has not revisited this issue to explain what “willful” means, leading to an outgrowth of divergent interpretations among lower courts. This Note examines the history and context of the Bearden decision in an effort to uncover a clearer understanding of the meaning of the term “willful.” In doing so, this Note aims to show how some interpretations of this standard have failed to meet the threshold set by the Supreme Court, resulting in unconstitutional deprivations of liberty. Finally, this Note discusses some of the problems facing advocates in challenging inadequate ability to pay determinations before proposing potential solutions through both strategic litigation and legislative reform, modeled on successful outcomes in Washington, Louisiana, and Massachusetts.

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Cruel and Unusual Trauma: How Eighth Amendment Principles Governing Conditions of Confinement Should Apply to Juvenile Strip Searches

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Meg Gould is a member of the Columbia Law School class of 2021.

S.K., a biracial girl from Winnebago County, Wisconsin, was fifteen years old when she was first admitted to Copper Lake School for Girls, a secure juvenile corrections institution.[1] One day, guards accused her of possessing stolen gummy worms. As a consequence of the alleged theft, she was sent to solitary confinement.[2] S.K. was sent to solitary on several occasions while at Copper Lake—one time for passing notes to other youths in her unit.[3] Upon initial intake, after being transferred to solitary, and each time a family member visited, the guards would subject her to strip searches.[4] They required her to take off all of her clothes, ran their hands through her hair, made her display her private parts to them, and mandated that she squat and cough while unclothed.[5] At least some strip searches took place in a room where there was a one-way mirror and a camera: later, she could be watched on video (by any guard, including male guards), and people outside the room could see her naked body through the mirror. On one occasion, a guard strip-searching her wore an activated body camera.[6]

Had S.K. been a fifteen-year-old girl from St. Joseph, Missouri, she would have experienced an almost unrecognizable scenario compared to the one she faced at Copper Lake in Wisconsin. In Missouri she could have been placed to serve her sentence at Riverbend Treatment Center, a secure juvenile facility with an entirely different approach to treating its residents.[7] There, even juveniles who commit a serious offense while residing at the center benefit from an “intentionally humane” environment.[8] In other words, a juvenile like S.K. could have acted out, but the youth specialists would nonetheless treat her empathetically and safely when she did;[9] she could even call a “circle” in order to discuss with the group any problematic (or positive) behaviors or attitudes she experienced.[10] In stark contrast with Copper Lake, solitary confinement is never used as punishment at Riverbend.[11] S.K. would never have been subject to the use of pepper spray as she was at Copper Lake,[12] and strip searches are strictly prohibited.[13]

Children[14] have no control over whether they were born in Winnebago County or the city of St. Joseph, yet if a child happens to spend any time in a correctional facility, location matters. Location determines whether a child might be forced to take part in a “body cavity search” upon intake at a juvenile correctional facility,[15] or whether a child will never have to know what those words mean. While trauma can still occur in institutions designed with the best interests of a child in mind, location ultimately determines whether and how trauma might be structurally enforced.

Although comparatively humane juvenile facilities like Riverbend do exist, strip searches are employed in most juvenile detention and correctional centers across the United States notwithstanding the consequences—in particular, trauma—they may cause.[16] Despite the frequency of the use of strip searches and the increase in claims challenging the constitutionality of certain juvenile conditions of confinement,[17] the Supreme Court has yet to establish a constitutional standard regarding the use of strip searches in juvenile detention or correctional facilities. Outside of conditions of confinement, however, many other constitutional issues related to juveniles have been litigated before the Supreme Court.[18] One principle that has emerged in this jurisprudence is that “children are different”—that children’s vulnerability to harm and susceptibility to outside influences are different from those of adults.[19] This principle was primarily formed through cases evaluating the constitutionality of harsh sentences imposed on juveniles under the Eighth Amendment, but its implications are much broader.[20]

This Note argues that the Supreme Court’s “children are different” principle should apply to the constitutionality of the practice of strip-searching youth in juvenile facilities. By acknowledging the unique vulnerabilities of youth to harm caused by strip searches, courts must emphasize the extreme intrusion to a juvenile’s privacy rights. Assigning weight to that extreme intrusion would serve to restrict the scope of how and when strip searches should be implemented, justified only by a serious government interest in conducting such an invasive search. In other words, an individualized reasonable suspicion that a youth presented an imminent threat to herself or to others would have to exist before a strip search was conducted.

Part I of this Note describes how trauma resulting from the use of strip searches specifically harms youth. This Part then outlines the lack of a consistent constitutional standard for challenging the use of strip searches in juvenile detention centers under the Fourth Amendment.

Part II discusses the emergence of the constitutional principle that “children are different” from their adult counterparts in the criminal legal system, through the lens of other conditions and disciplinary practices in juvenile correctional facilities. Next, this Part examines the conditions of confinement imposed on juveniles that have violated the Cruel and Unusual Punishment clause of the Eighth Amendment, and the Due Process Clauses of the Fourteenth and Fifth Amendments. Finally, Part II demonstrates the similarities in the harm caused by strip searches to the harms incident to other conditions of confinement, before describing how strip searches could themselves potentially constitute punishment.

Part III argues that courts should apply the principle of “children are different” to the imposition of strip searches on juveniles in order to affirm the reality that youth are more vulnerable to harm resulting from strip searches. To that end, courts would need to acknowledge the higher degree of invasiveness of these searches from the perspective of children. Acknowledging this severe intrusion would affect the balancing of interests used to justify juvenile strip searches, and thereby require a greater governmental interest before conducting such searches. Put differently, acknowledging this intrusion would restrain the scope of strip searches to those implemented with reasonable suspicion or a higher level of cause.

  1.   Amended Complaint at 36, J.J. v. Litscher, No. 17-CV-47 (W.D. Wis. July 10, 2017), ECF No. 13 [hereinafter Litscher Complaint]. S.K. was first admitted in 2015; she was most recently admitted in July 2016. Id. at 36.

  2.   Id.

  3.   Id.

  4.   Id. at 2.

  5.   Id. at 25. One of the other juvenile girls in the lawsuit, A.P., was also subjected to strip searches when she was taken to “solitary [confinement], after family visits, and if someone reported something missing.” She stated that “having the guards stare at her naked body makes her feel dirty.” Id. at 38.

  6.   Id. at 36.

  7.   Richard Mendel, Annie E. Casey Found., The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders 27 (2010), https://www.njjn.org/uploads/digital-library/model.pdf [https://perma.cc/
    6BJW-XJUJ]. Secure facilities (also known as “long-term secure facilities,” “training schools,” or “juvenile correctional facilities”) are institutions that “provide strict confinement and have construction fixtures or staffing models designed to restrict the movements and activities placed in the facility.” Juvenile Residential Programs, Off. of Juv. Just. & Delinquency Prevention 6 (2019), https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/media/document/residential.pdf [https://perma.cc/3U33-LYPE]. Juveniles housed at these facilities are usually those who have been tried for “serious, violent, or chronic” offenses and “present . . . multiple psychological, social, behavioral, and intellectual needs.” Id. at 7. These facilities often have features like external gates or walls with razor wire, deploy mechanical restraints, or make use of some sort of exclusion; additionally, most of these facilities provide treatment for mental health and substance abuse. Id. at 6–7. In Missouri, youth are sentenced to Missouri Department of Youth Services (DYS) custody—and could be placed at Riverbend Treatment Center—if they committed a “sufficiently serious” infraction and caused “significantly severe” harm. Mendel, supra note 7, at 27.

  8.   Mendel, supra note 7, at 27.

  9.   The Missouri Model describes how, in lieu of training staff as traditional guards or correctional officers, the Missouri DYS instead has redefined the role of frontline workers as “youth specialists,” charged with ensuring the “safety, personal conduct, care, and therapy” of juveniles in their care. These youth specialists are intensively recruited for possessing certain personality traits, including listening skills, empathy, and clear speaking styles; for embodying racial and ethnic diversity; and for having a base level of at least sixty hours of college experience before being hired. Id. at 28, 31.

  10.   Id. at 29.

  11.   Id. at 27.

  12.   Litscher Complaint, supra note 1, at 36.

  13.   Mendel, supra note 7, at 27.

  14.   This Note follows Justice Kagan in Miller v. Alabama, where she used the terms “children” and “juvenile” interchangeably. See 567 U.S. 460 (2012).

  15.   Wis. Stat. § 968.255 (2015); Cal. Stat. § 4031 (2017); see also William Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L. Rev. 665, 665 (2000) (describing the procedure of a visual body cavity search, in this instance applied to adults).

  16.   Rhode Island, Maryland, Washington, Indiana, Kentucky, Oregon, Mississippi, Texas, California, Georgia, Virginia, West Virginia, Alabama, Wyoming, Massachusetts, Ohio, Utah, and Delaware, among other states, use strip searches; a full list is on file with the Columbia Human Rights Law Review.

  17.   Many juvenile conditions of confinement have been challenged in courts over the past two decades as advocates, organizers, family members, and activists have elevated the issue of children’s vulnerability to harms within detention facilities. See, e.g., A.T. ex rel. Tilman v. Harder, 298 F. Supp. 3d 391, 416 (N.D.N.Y. 2018) (challenging the constitutionality of the use of solitary confinement on youth); J.J. v. Litscher, No. 17-cv-47 (W.D. Wis. July 11, 2017) (challenging the use of solitary confinement, physical restraints, and pepper spray on youth); Doe v. Hommrich, No. 3-16-0799, 2017 WL 1091864, at *1 (M.D. Tenn. Mar. 22, 2017) (challenging the use of punitive solitary confinement on youth).

  18.   See, e.g., In re Winship, 397 U.S. 358 (1970) (holding that a juvenile charged with conduct for which s/he would be criminally liable as an adult has a due process right for the elements of the offense to be proved beyond a reasonable doubt); Kent v. United States, 383 U.S. 541 (1966) (determining whether a juvenile can be waived to adult court); In re Gault, 387 U.S. 1 (1967) (ascertaining what legal rights juveniles have in criminal court); McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (establishing the right to trial by jury for juveniles and other due process requirements); Breed v. Jones, 421 U.S. 519 (1975) (applying double jeopardy protections to adjudicatory hearings); Roper v. Simmons, 543 U.S. 551 (2005) (considering the imposition of the death penalty); Graham v. Florida, 560 U.S. 48 (2010) (considering the imposition of life imprisonment without the possibility of parole); Miller v. Alabama, 567 U.S. 460 (2012) (finding unconstitutional a mandatory sentence of life without the possibility of parole for juvenile offenders.); J.D.B. v. North Carolina, 564 U.S. 261 (2011) (determining whether age is a factor for Miranda purposes); Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009) (deciding the constitutionality of strip searches imposed on juveniles in public schools).

  19.   Miller, 567 U.S. at 470–71 (2012) (“Children are constitutionally different from adults.”).

  20.   See Roper, 543 U.S. at 578 (2005) (concluding that imposing the death penalty on juveniles is unconstitutional); see also Graham, 560 U.S. at 82 (2010) (finding unconstitutional the imposition of life imprisonment without parole on juveniles).

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Of American Fragility: Public Rituals, Human Rights, and the End of Invisible Man

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Etienne C. Toussaint is a Associate Professor of Law at the University of the District of Columbia, David A. Clarke School of Law.

The COVID-19 pandemic has exposed the fragility of American democracy in at least two important ways. First, the coronavirus has ravaged Black communities across the United States, unmasking decades of inequitable laws and public policies that have rendered Black lives socially and economically isolated from adequate health care services, educational resources, housing stability, environmental security, stable and living wage jobs, generational wealth, and other institutional structures necessary for resilience. Second, government-mandated social distancing in response to the coronavirus has failed to dampen America’s racially biased, violent, and supervisory policing culture, reigniting demands from the Movement for Black Lives for police abolition and, more generally, the dismantling of white supremacy in sociopolitical life. In response, scholars have called for a radical (re)imagination of American democracy.

This Article argues that resolving the fragility of American democracy amidst the terrors of COVID-19 warrants a renewed commitment to the emancipatory language of human rights. This assertion rests on three claims, using the challenges of housing insecurity as a guiding explanatory thread. First, the geography of health inequity in Black communities across the United States embodies not merely governmental neglect, but more poignantly, the rituals of white supremacy that create and reconstitute the racial social order. As a result, beyond coordinated public health measures and short-term economic stimulus plans to address human vulnerability, the future of American democracy demands new tools to confront racial ritualization in everyday life. Second, human rights discourse challenges the normative underpinnings of contemporary public policy, which are shaped by liberal assumptions about the human condition that enshrine structural inequality and propagate economic power. Third, human rights discourse expands the social imagination, fostering innovation in lawmaking by deconstructing antiquated valuations of equality and reconstructing contextualized notions of liberty. Taken together, these insights reveal human rights discourse as a project of reimagining legal subjectivity and state responsibility.

To further elucidate the benefits of human rights discourse in view of compelling arguments to move beyond rights-based framings of equality and discrimination, this Article places Martha Fineman’s theory of vulnerability in conversation with Ralph Ellison’s articulation of the Black American experience during Jim Crow segregation in his novel, Invisible Man. This dialogue reveals the erasure of “sacrifice” from ongoing discussions of social and economic inequality. As this Article argues, sacrifice is a critical dimension of democratic citizenship that has been rendered invisible in contemporary rights-based discourse and emergent strategies for poverty alleviation. Drawing insights from the Movement for Black Lives and contemporary theorists of political philosophy, this dialogue clarifies the central role of “dignity” in establishing the preconditions for an engaged citizenry in the context of American racial capitalism.

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Jon Bauer is a Clinical Professor of Law and Richard D. Tulisano Scholar in Human Rights at University of Connecticut School of Law.

As U.S. asylum law becomes more restrictive, relief under the U.N. Convention Against Torture (CAT) has become the last hope for safety for many asylum seekers. But for those who face torture at the hands of non-State actors, CAT relief has proven extraordinarily hard to win. The CAT’s torture definition encompasses privately-inflicted harm only when it occurs with the consent or acquiescence of a public official. Agency decisions initially took this to mean that officials must willfully accept or tacitly approve the private party’s actions. Courts have rejected that approach as overly restrictive. But what they have adopted in its place—a “willful blindness” test under which CAT applicants must show that officials would turn a blind eye to the torture they face—is also problematic. Under this standard, even where government officials take only half-hearted or patently inadequate steps to combat acts of privately-inflicted torture such as domestic violence, honor killings, gang violence, or mob attacks on LGBTQI people, courts frequently conclude that acquiescence has not been shown. As long as officials are doing something, the decisions reason, they are not willfully blind.

This Article argues that willful blindness should not be the test for acquiescence. The term “acquiescence” is defined in a Senate ratification understanding to require that a public official have awareness of the torturous activity and breach a legal responsibility to intervene to prevent it. This definition, which has been incorporated into U.S. law, makes clear that when officials are aware of torturous activity—and in most cases there is no doubt that a country’s government is aware of widespread patterns of abuse—what matters is whether they breach their legal responsibility to take preventive action.

Drawing on previously overlooked aspects of the history of the CAT’s drafting and U.S. ratification, this Article argues that officials acquiesce to torture if they fail to meet their legal responsibility under international law to take effective preventive measures. The State’s responsibility to exercise “due diligence” to prevent, investigate, prosecute, and punish acts of torture by non-State actors is widely recognized under the CAT and other human rights treaties. The U.N. Committee Against Torture has found that when States fail to exercise due diligence, they enable private parties to commit acts of torture with impunity, and thereby acquiesce. That approach accords with how the U.S., during the treaty negotiations, originally defined “acquiescence” when it proposed adding the term to the CAT’s torture definition. It also fits in comfortably with the text and purpose of the treaty and its U.S. ratification understandings. The Article concludes by considering what a due diligence standard for acquiescence would look like in practice and addresses potential objections to its appropriateness and administrability. It also offers a proposal to amend the CAT regulations to clarify the acquiescence standard

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Resurgent debates in U.S. law and politics over reparations and racialized inequality reflect what this Article argues is a significant transnational legal phenomenon: courts, policymakers, and social justice advocates mobilizing pasts of racial and ethnic violence and dispossession to justify competing rules for the distribution of resources and power today. In the United States., South Africa, Canada, and Israel/Palestine, significant legal and political battles revolve around the relationships among past, present, and future. Judges and advocates identify progress from or rupture with the past; embrace or reject institutions intended to record and resolve past events; and attempt to silence or center past violence when interpreting rights in the present. In the U.S., arguments about whether and how slavery is relevant to contemporary racialized inequalities arise in litigation around affirmative action and reparations. These debates contest not the horror of that past but rather its linkage with the beneficiaries of racial privilege today given the passage of time and the formal legal end of slavery and segregation. In South Africa, a critical fault line has emerged between those who view the Truth and Reconciliation Commission, the post-1994 Constitution, and Constitutional Court judgments as representative of a flawed but foundational break with the atrocious past and those who assert that today’s radical, racialized inequalities derive from legal and constitutional continuities with the colonial and apartheid pasts. In Canada, recent public debates over the legal definition of genocide revealed tensions over the distribution of resources and power between Indigenous and settler Canadians. The question of whether genocide ended or continues represents a fundamental contest over the material consequences of colonialism in the present. The final case study examines the evasion of the past in the Oslo Accords and its subsequent effects on the structure of Israeli-Palestinian relations. While the predominant argument held that engaging the past would only provoke further conflict, activists and advocates countered that the radically unequal distribution of territory, population, and power in the present can be understood only in relation to past violence and dispossession. Together, the case studies reveal the material stakes of legal and political assertions of the resolution, distance, reproduction, legacy, afterlives, or erasure of racialized violence and dispossession.

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