NewYorkUniversity
LawReview

Online Features

2021
Online Symposium

Philando Castile, State Violence, and School Lunch Debt: A Meditation

Abbye Atkinson

This essay reflects on Philando Castile and the work he did to support the children who passed through his school cafeteria. By regularly paying off their school lunch debt, Mr. Castile voluntarily assumed a vital caretaking role that the state refused to accept: namely, supporting food-insecure children and education through debt-free lunch. He kept children safe in this regard, even up to the moment that the state violently stole his life on July 6, 2016. Even as his death is a marker of the continuing, racialized excesses of American policing, Mr. Castile’s life in service to hungry schoolchildren reveals the sometime perversity of the public-private American social provision policy that continues to impose the burdens of financial insecurity on individuals least able to bear them.

The Political Economy of Pandemic Pods

Osamudia R. James

More than a response to a temporary health crisis, the pandemic pods that emerged in the wake of COVID-19’s onset are an illustration of larger problems in American education. Grounded in a broader social architecture of risk in education and contextualized against neoliberal policies inside and outside of education, the rise of pandemic pods was both predictable and inevitable. Needed are interventions that both undercut the inherent inequality of pandemic pods in the short term and reorient the political economy of education such that education stability and equality can be secured in the long term.

Pandemics, Privatization, and the Family

Melissa Murray, Caitlin Millat

From disparities in healthcare quality and coverage to housing and employment insecurity, the COVID-19 pandemic has highlighted existing inequalities in American society.  But critically, the pandemic has also exacerbated these inequalities, particularly those that exist within the family. As work and school activities have shifted from schools and other public sites to the home, and employment has become more precarious, more and more Americans have found themselves struggling to reconcile the demands of the workplace with household responsibilities and their new roles shepherding children through the travails of remote education.

Much has been made of the pandemic’s particular effects on professional women, who have disproportionately assumed the twin burdens of work and caregiving during these extraordinary times. These burdens, coupled with the collapse of service industries in which women are disproportionately employed, have prompted women to leave the workforce in record numbers. The consequences of this exodus of women from the workforce cannot be understated. Indeed, some argue that this “she-cession” will erase decades of hard-won progress for working women, while also exacerbating race and class inequalities.

But speaking of these dynamics solely in the register of economic disruption, gender inequality, and work-family conflict overlooks a crucial player in this landscape: the state. As this Essay argues, not only has the pandemic revealed endemic inequality, it has also highlighted the state’s thin support for caregiving and family responsibilities, as well as the underlying presumption that the family will serve as a means of privatizing care and dependency. It is only in recentering the state, and being clear-eyed about its conscription of the family (and those within it) in the discharge of public functions, that we can be clear-eyed about the inequalities that are produced—and exacerbated—by the privatization of care.

The New Racial Segregation in Education

Ralph Richard Banks

The killing of George Floyd prompted a racial reckoning that quickly extended beyond the issue of police violence, prompting people of all backgrounds to confront the depth and breadth of racial inequality in American society. Education is central to either undermining or sustaining racial hierarchy. For much of American history, Blacks were either denied education or provided a segregated education inferior to that available to whites. The demise of de jure segregation fueled hopes that the expansion of educational opportunity would diminish racial inequalities.

Yet, while the promise of education remains undeniable, some aspects of schooling predictably exacerbate racial disparities. This Essay highlights a paradox at the intersection of education and racial justice: selective schools’ laudable embrace of the principle of academic achievement now constitutes an impediment to educational opportunity for Black Americans in both secondary and higher education alike. When schools evaluate applicants on the basis of their prior academic achievement, the educational system becomes stratified on the basis of student achievement. Achievement segregation disadvantages Black Americans. When racial segregation results from achievement segregation, it may be especially difficult to dislodge, given the importance attached to the idea of academic achievement as a desirable basis for choosing among applicants. Nonetheless, this Essay unsettles the justifications that sustain achievement segregation. Doing so is essential to creating educational settings that are more racially equitable.

Coming to Terms: Using Contract Theory to Understand the Detroit Water Shutoffs

Marissa Jackson Sow

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale—and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily suspended for the duration of the COVID-19 health emergency in March 2020 and that water be restored to homes that had been disconnected from water services.

Human and civil rights activists and health officials have long sought the end of the shutoff campaign for several reasons: It disproportionately impacts Black people, subjects residents to subhuman living conditions and serious health risks, and remains ineffective at redressing the underlying problems that prompted the shutoff in the first place. For attorneys and activists advocating on behalf of Detroiters, pleading violations of civil and human rights laws, however, has proven unavailing in the courts, as well as at the seats of local or state government; even condemnations from the United Nations did not convince the City of Detroit or the State of Michigan to put a permanent end to the water shutoffs, their lack of success and high human cost notwithstanding.

This Essay articulates a radical theory of contract to clarify the relationships between the people of Detroit and the local, state, and federal governmental bodies exercising jurisdiction over them and to explain why the shutoffs persist. A racial contract exists amongst Michigan’s white body politic, which seeks the exploitation of Black people and resources—including Detroit’s water. Performance of the contract requires the dehumanization and exclusion of Black Detroiters in order to establish and maintain a rent-seeking order in which Black people effectively subsidize the delivery of water and sewage services to white suburbanites who view Black governance and Black proprietorship as a breach of the social order for which the suburbanites bargained. The City of Detroit has been able to rely on anti-Black narratives and beliefs to create the mirage of a contractual relationship with Detroit residents that Detroiters have breached; in reality, however, because of the racial contract, Black people lack the capacity to enter into bargained-for agreements with their local government; rather, the City of Detroit and the regional water authority have contracted amongst themselves, treating Black people’s use of water as an externality resolved through taxation.

The Continued Relevance of the Equal Access Theory of Apportionment

J. Colin Bradley

The one person one vote doctrine contains a core ambiguity: Do states need to equalize the voting strength of voters in each district? Or do they need to equalize the total number of people in each district? This difference matters when demographic trends lead to large numbers of noncitizens living in some districts but not others. When that happens, equalizing the total population across districts leads to large differences in the number of voters in each district and differences in the voting power of voters across districts. In 1990 the Ninth Circuit held in Garza v. County of Los Angeles that the First and Fourteenth Amendments together require states to equalize the total population across districts, no matter the distribution of noncitizens and other ineligible voters. But that approach has not caught on, and recently the Supreme Court signaled that it thinks the Garza approach is inconsistent with the leading Supreme Court precedent of Burns v. Richardson, which allowed Hawaii to equalize the number of registered voters rather than the total population across districts. This Essay provides a reading of Burns according to which it holds that the goal of apportionment is to fairly distribute representatives across the to-be-represented population—the group of more or less permanent residents who belong to the political community—and that sometimes the total population reported in the Federal Census is an inaccurate measure of this. Thus, Burns should not stand as an obstacle to a modern acceptance of the Garza approach if the Court is forced to revisit these issues after the 2021 redistricting of state legislatures.

Battle Lines/Ballot Lines: Democracy Stabilization and Election Administration

Joseph Krakoff

The prelude of the 2020 election is marred by dark projections of large-scale violence that could disrupt voting or a prolonged count of mail-in ballots requested due to the COVID-19 pandemic. Academics agree that this situation is unlikely to be an isolated occurrence. Rather, extreme polarization risks making violent elections a new norm in American life. Even if violence fails to materialize in November 2020, it is still worthwhile to engage in legal scenario planning to ask the question: What if? This Essay sketches a preliminary, incomplete answer to that question from the perspective of courts.

Taking as an example a complaint seeking to enjoin the Trump campaign from inciting violence, this Essay begins from the assumption that existing Fourteenth Amendment doctrine, forged in the era of 1960s desegregation, lacks a register to fully conceptualize the novel assaults on American democratic institutions today. Specifically, courts tend to employ a strict individual rights focus, which lacks the ability to conceptualize assaults on democracy that do not intentionally target any particular voter and, uncomfortably, asks courts to step into an ex ante regulatory role more familiar for a federal agency than the judicial branch. To fill that gap, courts could learn from international democratic backsliding. Specifically, the concept of a “strategy of tension” lends analytical rigor to scenarios in which regimes actively seek to foment civil unrest, cracking down on opponents and encouraging extrajudicial violence. This framework allows one to recognize such harms as injuries to democracy itself that endanger the supreme democratic principle of the state’s monopoly on the legitimate use of violence, a foundational principle of liberal governance. With that conceptualization in hand, this Essay concludes by forwarding a potential role for courts “in the breach” as exercising emergency powers to stabilize democracy under extreme stress.

2020

Protecting Local News Outlets from Fatal Legal Expenses

Nicole J. Ligon

As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses. This Article examines the important functions of local journalism, explains the recent legal challenges that local news outlets have been facing and their resulting impact, and exposes the problematic gaps of statutory frameworks that fail to adequately protect local news outlets from fatal legal expenses. In so doing, this Article argues that enacting strong state anti-SLAPP statutes and reporter’s shield laws is necessary to combat recent costly attacks against the press and to preserve the vitality of the local media.

A Poll Tax by Another Name: Considering the Constitutionality of Conditioning Naturalization and the “Right to Have Rights” on an Ability to Pay

John Harland Giammatteo

Permanent residents must naturalize to enjoy full access to constitutional rights, particularly the right to vote. However, new regulations from U.S. Citizenship and Immigration Services (USCIS), finalized in early August and originally slated to go into effect one month before the 2020 election, would drastically increase the cost of naturalization, moving it out of reach for many otherwise-qualified permanent residents, while at the same time abolishing any meaningful fee waiver for low-income applicants. In doing so, USCIS has sought to condition naturalization and its attendant rights on an individual’s financial status.

In this Essay, I juxtapose the new fee regulations with a growing caselaw and scholarly literature about financial status, voting, and an individual’s ability to pay. Placed alongside the ability-to-pay caselaw—including Griffin v. Illinois and Bearden v. Georgia and, more recently, the litigation about Florida’s felony disenfranchisement provisions—it is clear that the new fee policies should be seen as due process and equal protection violations and struck down. I conclude by noting possibilities for litigation or legislation that would preserve a meaningful safety valve to allow low-income individuals to realize the full benefits of naturalization and access all the rights that come with it.

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