Should Hate Speech on Campus Be Protected?

Written by Sophia Khan

Image of Steve Bannon by Gage Skidmore, CC BY-SA 2.0 License.

The 2017 Charlottesville protests against the University of Virginia hosting Unite the Right leader Richard Spencer marked a turning point in how universities deal with hosting controversial speakers. Universities must balance their own institutional goals—asking hard questions and probing the darkness in pursuit of knowledge—with concerns for physical safety.

When a divisive figure wants to speak on campus, a universities are faced with two options: (1) allow the speaker to use their campus as a platform for incendiary rhetoric and risk the outbreak of violent protests, or (2) reject the request and risk litigation. As an example of the latter, Mr. Spencer’s team has now brought individual lawsuits against Michigan State, Ohio State, Penn State, and most recently, the University of Cincinnati, claiming that the universities’ refusal to host him is a violation of his First Amendment right to free speech. Michigan State subsequently settled with Mr. Spencer and has agreed to host Mr. Spencer on the first day of the university’s spring break.

Universities face substantial costs when hosting speakers affiliated with the alt-right movement; for example, the University of Florida had to pay a $300,000 public safety bill when Mr. Spencer spoke on its campus last October. In addition, the Florida governor preemptively declared a state of emergency in advance of Mr. Spencer’s planned speech. The legal implications of these heightened precautions, however, require balancing the perceived costs to the hosting university and Mr. Spencer’s constitutional right to free speech. In Mr. Spencer’s complaint against the University of Cincinnati alleges that the proposed $11,000 security fee is effectively unconstitutional discrimination against the anticipated content of Mr. Spencer’s speech.

University values—such as inclusiveness—are stretched thin when a speaker who promotes hateful ideology speaks on campus. How pressing must the “specter of violence” be for a court to find that a university’s action in not allowing such a speaker is constitutionally permitted? Existing case law provides little guidance. A federal court ruled in favor of Mr. Spencer in his lawsuit against Auburn University, finding that the university violated his First Amendment rights when it turned down his request to speak on campus.

One recent example of a university grappling with these issues is the University of Chicago. The university has an open-door speaker policy that permits members of the university community to invite to campus any person they wish to speak. Recently, Steve Bannon was invited to speak on campus at the invitation of Luigi Zingales, a professor at the Booth School of Business. In response, student organizations assembled an immediate demonstration, demanding that the university rescind Bannon’s invitation. In addition, faculty signed a public letter denouncing Bannon’s alignment with white supremacy and hate speech as directly opposed to the university’s diverse and inclusive community.

In a statement to the university community, the professor defended inviting Bannon, stating, “Whether you agree with him or not (and I personally do not), Mr. Bannon has come to interpret and represent this backlash in America. For this reason, I invited Mr. Bannon to a debate on these issues with our faculty. I firmly believe that the current problems in America cannot be solved by demonizing [those] who think differently, but by addressing the causes of their dissatisfaction. Hate cannot be defeated by hate, but only by reason.” Details of Bannon’s talk have yet to be confirmed; teach-ins, controversy, and debate continue at University of Chicago.

The Northwestern University Law Review Online recently published an Essay by Clay Calvert discussing the legal merits of First Amendment claims brought by speakers, including Mr. Spencer, who have been turned away from campus speaking engagements by the hosting universities. Professor Calvert argues that the standard developed in Tinker v. Des Moines Independent Community School District (1969), which allows public school officials to stop student speech if they have actual facts to reasonably believe the speech will cause a substantial or material disruption of school activity or policy, should not be applied to universities. Instead, Professor Calvert advocates for First Amendment protection of extremist speech on university campuses, even if university administrators must pay high security costs.

Larry Nassar’s Sentencing Hearing & the Role of Victim Impact Statements

Written by Khadija Lalani

The Hon. Rosemarie E. Aquilina presided for the victim impact statements.

On January 24, 2018, former USA Gymnastics doctor Larry Nassar was sentenced to up to 175 years in prison for sexually abusing scores of athletes he treated over the course of several years. Nassar’s sentencing hearing has drawn nationwide attention to the role of victim impact statements in our judicial system. Generally, victim impact statements involve written or oral communication from a crime victim about how the crime has affected them. All fifty states allow victim impact statements at some point in the sentencing process, and judges often take those statements into consideration along with other factors when determining the sentence.

Nassar pled guilty to seven counts of first-degree criminal sexual misconduct and admitted to using his position as an entrusted doctor to abuse athletes who came to him seeking medical treatment. As part of the plea agreement, Nassar agreed to have his victims provide statements in court. Judge Rosemarie Aquilina allowed all 156 victims to present their statements in court, with Larry Nassar seated in the witness stand before them.

The role of victim impact statements in both serving justice and empowering the victim has been widely debated. While some strongly believe that the practice enables previously silenced victims to share their stories and have their voices heard, others point out that such statements could cause a judge or jury to use subjective harm to the victim as a proxy for the defendant’s culpability, rather than looking at the weight of the evidence.

The Nassar hearing, however, is unique for two reasons. First, just prior to the sentencing hearing on the sexual assault charges, Nassar had already been sentenced to sixty years in prison on federal child pornography charges. He had no prospects for escaping a substantial amount of time in prison, irrespective of the result in the sexual assault case. In fact, it was clear that he would be spending the remainder of his years in prison no matter what. Second, over 150 victims came forward to present their statements and expose the horrific realities of Nassar’s behavior while the nation watched. Judge Aquilina’s decision to allow each victim to speak was not unanimously lauded. Fellow Ingham County Circuit Judge William Collette remarked, “Doing justice is one thing. It is not a judge’s function to get people healed.”

Judge Collette may be right that it is not a judge’s job to heal people, but the inclusion of victims in the Nassar case has also served a broader purpose of uncovering the truth. In a case where formal witness testimony was precluded by a plea agreement, the presentation of victim impact statements by women who were ready and able to do so publicly have exposed Larry Nassar as who he really is—a man with a decades-long history of sexual misconduct, who was lucky enough to find himself working among a cohort of negligent, if not equally reprehensible adults who tacitly condoned or defended his criminal behavior at the expense of innocent women and children.

As law students and lawyers, we often discuss the imperative of finding the truth. In Larry Nassar’s case, his guilty plea alone would fail to expose the whole truth. As one victim, Rachael Denhollander, said in her statement, “[T]he truth about what Larry has done must be realized to its fullest depth if justice is to ever be served.”

Sessions v. Dimaya: “Crimmigration,” Due Process, and the Ghost of Scalia

Written by Nicole Hopkins

The late Justice Scalia. Image by Stephen Masker, CC BY 2.0 License.

In the first year of the Trump Administration, the President doubled down on many of his immigration-related campaign promises. 2017 brought Executive Orders and agency guidance designed to streamline enforcement of the existing statutory scheme (DACA recission) and to invigorate infrastructure (securing ports of entry under the travel ban and building the southern border wall).

2017 was slated to be an important year for immigration long before the 2016 election.  In October, the Supreme Court reheard argument in Sessions v. Dimaya, a case that has potential to change outcomes for removable aliens. The case, which has yet to be decided, may well result in the Court holding one of the most contentious provisions of federal immigration law void for vagueness under its 2015 decision in Johnson v. United States.

James Garcia Dimaya entered the United States in 1992 on a lawful permanent resident (LPR) visa. Fifteen years later, Dimaya was convicted of first-degree residential burglary in California, and served two years in prison. In 2009, Dimaya was convicted of the same crime, for which he served another two years. Neither of these criminal acts involved any violence on Dimaya’s part; however, the Immigration Judge (IJ) found him removable on the basis of the convictions’ classification as “crimes of violence” and thus “aggravated felonies” for purposes of the Immigration and Nationality Act (INA).

The provision of the INA at issue in Dimaya has been examined by the Supreme Court on multiple occasions. INA Section 1101(a)(43) enumerates a variety of criminal offenses that collectively define an “aggravated felony” for purposes of the Act. Of particular concern is 101(a)(43)(F), which incorporates “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at least one year.” Section 16(b) defines a “crime of violence” as: “any . . . offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The IJ in Dimaya’s case found that, because residential burglary generally involves a risk of physical violence in the course of its ordinary commission, it qualified as a crime of violence. The question before the Court in Dimaya is whether this kind of judicial decisionmaking, which IJs and courts employ in determining whether a non-violent offense qualifies as a crime of violence, is void for vagueness under Johnson.

Justice Scalia (writing for the majority in Johnson) took issue with the method of judicial decisionmaking necessary to determine whether a state criminal conviction qualifies as a “violent felony” for purposes of the Armed Career Criminal Act (ACCA). Johnson held that this decisionmaking process itself rendered the ACCA’s “residual clause” void for vagueness: judicial application of the “categorical approach” to determine whether a conviction constitutes a “violent felonyinvited arbitrariness and fell short of the constitutional minimum due process requirement of notice.

For immigration advocates, IJs, and courts, determining whether a criminal conviction constitutes an “aggravated felony” is often a convoluted and high-stakes process. Courts, as noted above, use the same “categorical approach” at issue in Johnson. The residual clause—with nearly identical wording to the provision at issue in Dimaya—triggers enhanced penalties when applied under the ACCA; a conviction of an aggravated felony often triggers removal (or deportation). The Supreme Court in 1948 described “deportation [as] a drastic penalty,” which is “[the] equivalent to banishment or exile.” Although Petitioners in Dimaya attempted to confine its void for vagueness analysis explicitly within the criminal context, the Jordan Court held in 1951 that void for vagueness challenges apply in the immigration context because of the severity of the penalty.

At oral argument, Justice Neil Gorsuch repeatedly questioned the Government’s advocate, showing particular concern for due process, notice of severe penalties attending a defendant’s conduct, and the implications of Johnson for judicial decisionmaking. As was often the case with Justice Scalia, Justice Gorsuch defied ideological stereotypes, at many points echoing concerns raised by Justice Kagan and Justice Sotomayor. Dimaya may be an opportunity to test whether Justice Gorsuch will carry Justice Scalia’s torch as a defender of due process, or whether he will reflect the views of the President who appointed him. Justice Gorsuch’s enthusiasm for due process rights of non-citizen criminal aliens and resistance to Petitioners’ attempts at differentiating Johnson suggest that he may be carving his own niche in the seat he inherited.

The Federal Judiciary: Independence Requires Responsibility

Written by Christian Huehns

CC BY 2.0 License
By Daderot, CC BY 2.0 License.

When the chief judge of U.S. Court of Appeals for the Ninth Circuit initiated a judicial review of the sexual harassment allegations against Judge Alex Kozinski, it presented a rare opportunity for the public to witness how the federal judiciary handles allegations of sexual misconduct against its members. That opportunity was seemingly lost when Kozinski resigned shortly after review began. Following Kozinksi’s resignation, almost 700 former federal judicial clerks and employees penned a letter to Supreme Court Chief Justice John Roberts charging that the federal judiciary is not equipped to handle allegations of sexual assault. In response, Chief Justice Roberts announced that the judiciary would begin 2018 by evaluating “whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate.” The Kozinski controversy raises important questions regarding judicial standards of conduct and how judges should be disciplined when those standards are not met.

Federal judges must follow the laws of the United States as well as the Code of Conduct for United States Judges. The Code broadly sets standards for judicial conduct inside and outside the courthouse. For example, the Code states, “[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Many of the standards do not have clearly drawn boundaries; instead, violations are determined through a “reasonable application of the text.” Violations of the Code may be grounds for disciplinary action under the Judicial Conduct and Disability Act of 1980.

The Act provides the judiciary with the authority to discipline its own members. To initiate a proceeding, any person can file a complaint alleging judicial misconduct with the clerk of the court of appeals for the appropriate circuit. Non-frivolous complaints are delegated by the chief judge of the circuit to a special committee of judges for fact-finding. Based on the committee’s findings, a judicial council for the circuit determines an appropriate action for the judge in question. The Act describes possible actions by the judicial council, which include: ordering that no further cases be assigned to the judge temporarily, censuring/reprimanding the judge by public or private communication, requesting the judge voluntarily retire, or referring the judge for impeachment by the House of Representatives.

The Act expressly prohibits judicial councils from removing a judge from office. Under Article III of the U.S. Constitution, federal judges serve for life “during good behavior.” As a “civil Officer of the United States,” a federal judge may be removed from office through Article II impeachment proceedings. While there is some question whether this is the only procedure for removing a judge from office, it is generally accepted that a judge may only be removed after being impeached by the House and tried in the Senate. Since impeachment proceedings are confined to the legislature, the judiciary lacks authority to remove judges from office.

In the history of the United States, federal judges have been impeached just fifteen times. In each of the most recent instances, the impeached judge faced felony charges or convictions. With the House only impeaching judges on felony charges, the judiciary retains wide authority in deciding when to initiate disciplinary hearings and issue corrective actions against its members. The integrity of the judiciary is not maintained merely through its independence; to keep the public’s trust, the judiciary must ensure that judicial conduct complies with the laws and standards judges apply in their courtrooms. It remains to be seen whether Chief Justice Roberts’ evaluation of the federal judiciary will help to achieve that goal.

Chicago Public Schools Faces Class Action Lawsuit Over Failure to Support Non-English Speaking Parents of Children with Disabilities

Written by Anna Karnaze

On Monday, January 29, 2018, Equip for Equality filed a federal civil rights class action lawsuit against Chicago Public Schools (CPS) and the Illinois State Board of Education (ISBE), alleging their failure to adequately support limited English proficiency (LEP) parents of CPS students with disabilities as required by law. According to the complaint, 52,903 CPS students received special education services through the implementation of Individualized Education Programs (IEPs) during the 2016–17 school year. Of those students, 42% lived in households where English is not spoken. This includes over 19,000 households that communicate in Spanish, over 300 that communicate in Polish, nearly 300 that communicate in Arabic, and nearly 200 that communicate in Chinese. Equip For Equality, on behalf of these families, asserts that CPS and ISBE are systematically failing to meet their legal obligations to parents by not providing them with timely and written translations of vital IEP process documents, qualified interpreters during IEP meetings and throughout the dispute resolution process, and adequate notice of their rights under the law.

The complaint alleges that these systematic failures by CPS and ISBE constitute actionable legal violations under the Individuals with Disabilities Education Act (IDEA), Title VI of the Civil Rights Act of 1964 (Title VI), the Equal Education Opportunities Act (EEOA), and Section 504 of the Rehabilitation Act. Specifically, plaintiffs assert that CPS and ISBE are failing to provide meaningful parental participation as required under IDEA, engaging in intentional, language-based national origin discrimination prohibited by Title VI and the EEOA, and denying a Free Appropriate Public Education (FAPE) to children with disabilities of LEP parents as required under Section 504.

Equip for Equality filed this class action lawsuit along with the law firm Kirkland & Ellis, which is providing pro bono representation. Equip for Equality, a private, not-for-profit organization established in 1985, serves as Illinois’s federally mandated Protection and Advocacy System and provides self-advocacy assistance, legal services, public policy advocacy, disability rights education, and abuse investigations on behalf of people with disabilities throughout the state. Its Special Education Clinic provides assistance to and advocates on behalf of students with disabilities and their parents, and works to protect these students’ right to a free, appropriate public education. Through the use of their Special Education Helpline, Equip for Equality is also able to provide these legal services to a more diverse group of families.

This is not the first time a school district has faced a class action lawsuit asserting violations on behalf of LEP parents of students with disabilities. Though this issue has yet to make its way through most circuits, a federal judge in Pennsylvania recently denied a school district’s motion to dismiss a similar class action lawsuit, alleging violations under IDEA, Section 504, the ADA, Title VI, and the EEOA. In that case, T.R. v. School District of Philadelphia (E.D. Penn. 2016), the judge found that plaintiffs did state a claim by alleging that the school district’s refusal to provide translated documents or a qualified interpreter during meetings prevented parents from meaningfully participating in their children’s special education meetings as required by law.

In light of the recent ruling in T.R., this class action lawsuit against CPS stands a reasonably good chance of success, at least when it comes to surviving a motion to dismiss. A ruling in the plaintiffs’ favor in this case would require CPS to provide, among other relief, timely translation of all vital IEP documents, written translations of these documents for LEP parents, notification of LEP parents’ rights to receive translated documents and competent interpretation services in their native language, the development of a protocol to identify parents in need of these services, and a new written policy for providing qualified interpreters at IEP meetings. ISBE would also be required to provide these services for LEP parents of children with disabilities that are going through the dispute resolution process. These changes would go a long way to help reduce barriers to educational opportunities faced by students with disabilities, and would significantly improve the ability of LEP parents to meaningfully participate in the educational programming of their children.

Time’s Up? The Barriers to Justice for Victims of Sexual Harassment

Written by Anne Hudson

<a href=””>Brandon Le, <a href=””>CC BY 2.0</a> License.

New Year, New Plan

Three-hundred women from the film industry—including some of the most powerful women in Hollywood—began 2018 by announcing Time’s Up, a new plan to fight sexual assault, sexual harassment, and gender inequality. This came in the midst of a national conversation about sexual misconduct in the workplace following the numerous allegations against producer Harvey Weinstein and the emergence of the #MeToo movement. Part of the initiative includes the creation of the Legal Defense Fund, which will help minimize litigation costs for survivors of sexual harassment and assault claims. The Fund will be housed within the National Women’s Law Center’s Legal Network for Gender Equity. Northwestern Law alumna Tina Tchen and Roberta Kaplan will lead the Fund.

By providing access to legal representation, the Legal Defense Fund addresses one barrier facing survivors who seek judicial remedies for sexual misconduct in the workplace. But other barriers remain, especially with respect to claims of harassment. Sexual harassment in the workplace is actionable under Title VII of the Civil Rights Act of 1964, which prohibits employers from “discriminat[ing] against any individual” on the basis of sex. Yet, one of the questions raised by the recent flood of allegations is how the men accused—who often faced allegations of serial misconduct—consistently evaded facing any legal consequences. How did the judicial system fail to provide justice to countless victims, and how did it likewise fail to prevent repeated misconduct? A survey of the realities of sexual harassment law shows that Time’s Up has an uphill battle ahead.

Dismissing Harassment

The Equal Employment Opportunity Commission receives 90,000 charges of discrimination every year, one third of which involve some form of workplace harassment, according to a 2015 report. These numbers do not even account for those who are discouraged from ever filing a complaint or bringing a lawsuit,  which the EEOC has estimated could be as high as 75% of those who experience  harassment in the workplace. This low rate of reporting is perhaps unsurprising in light of the fact that the vast majority of sexual harassment lawsuits are unsuccessful. When the plaintiff does receive a remedy, it is usually through settlement or conciliation. In cases without a settlement, under 5% it to trial, and the rest are dismissed at an earlier stage of litigation.

What accounts for these high rates of dismissal? In part, they are due to the standard the courts have developed for evaluating harassment under the law. In Harris v. Forklift Systems, Inc. (1993), the Supreme Court held that harassment needed to be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.Plaintiffs must show that they subjectively felt their conditions of employment were altered by the harassment and that the conduct would be seen as objectively abusive to a reasonable person. This standard, as applied by judges at the motion to dismiss and motion for summary judgment stages, has created an extremely difficult bar for plaintiffs.

One particularly egregious example comes in Baldwin v. Blue Cross/Blue Shield of Alabama (11th Cir. 2007). In that case, a male supervisor propositioned a female employee on multiple occasions. In addition to moving his zipper up and down while referring to the plaintiff as “babe,” he also “cornered her in his office and propositioned her by saying, ‘Hey, babe, blow me.’” Nevertheless, the district court held the harassment was insufficiently severe to survive a motion for summary judgment. Cases like Baldwin create a “domino effect” of binding and persuasive precedent that make the path more difficult for future plaintiffs. This framework discourages reporting of sexual harassment and incentivizes those who do seek a remedy to forego litigation in favor of settlements and private arbitration. These settlements often include non-disclosure agreements that prevent the victim from discussing the details of the events. This, in turn, allows serial misconduct to occur, as was the case with Harvey Weinstein.

For many, the #MeToo movement has illuminated the pervasiveness of sexual harassment and misconduct in the workplace. The Time’s Up Legal Defense Fund is an important step in addressing this problem.  It faces significant challenges, however, as the current state of employment discrimination jurisprudence too often fails victims of sexual harassment. If Time’s Up really wants to change sexism in the workplace, the movement will have to start by changing the law.

Star Athletica v. Varsity Brands: Fashion Copyright in Vogue

Written by Thomas Heiser

Image by hkseven, Creative Commons (CC BY-NC-ND 2.0) License.
“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” —Justice Oliver Wendell Holmes, Bleistein v. Donaldson Lithographic Co. (1903)

The fashion industry represents a multi-trillion dollar global business—casting a wide net and covering a range of industries from agriculture to manufacturing to design. It’s an industry almost every consumer engages with on a daily basis. Although it is dominated by global brands and large-scale manufacturing, independent entrepreneurs play a significant role. But what protections exist for the fashion designer? How does the administration of copyright law affect the balance of artistic innovation and competition?

At its core, copyright exists to provide an economic incentive for authors—including fashion designers—to invest the time and capital into creating new artful designs. Without copyright law, the incentive for fashion designers to invest in new designs diminishes because the possibility of a fair return on their investments declines. This concern manifests in the administration of copyright law as an exercise in managing the trade-off between artistic protection and innovation. Because the Constitution grants Congress the power “to promote the progress of science and useful arts,” the creation of new works furthers its aim. This creation requires a balanced system that rewards creativity and fosters innovation without impeding competition.

Most recently, in the 2017 case Star Athletica v. Varsity Brands, the Supreme Court upset this balance by establishing broad protection for designs of cheerleading uniforms through its interpretation of the separability doctrine in the Copyright Act of 1976. Separability exists to guarantee “the notion that an otherwise copyrightable item should not be denied protection just because it is employed as part of a useful article.” In short, if a design can be perceived as having pictorial, graphic, or sculptural features that can be identified and separated from the utilitarian function of the work, then it is eligible for copyright protection. Before Star Athletica, the test for separability consisted of a physical and conceptual undertaking that resulted in a multitude of approaches and years of conflict among the lower courts. Now, if an article’s aesthetic outweighs its utility, then it is likely eligible for protection. This new approach, based solely on the statute’s text, creates a highly subjective rule that will be difficult to apply in practice. It also requires judges to engage in the type of aesthetic discrimination that Justice Holmes warned against over a century ago, in Bleistein v. Donaldson Lithographing Co. (1903).

An analysis of three cases post-Star Athletica sheds light on the applicability of the new separability standard. First, Design Ideas v. Meijer (C.D. Ill. June 20, 2017) involved the copying of a clothespin design that contained a bird sculpture. This case demonstrated the concern about framing the utilitarian aspect of the article. Because of a narrow framing, the court valued the aesthetic of the bird sculpture over any utilitarian qualities it might possess with respect to the clothespin, ultimately allowing copyright protection. Second, Jetmax v. Big Lots (S.D.N.Y. Aug. 28, 2017) involved the copying of a light set that contained an ornamental covering. Similar to Design Ideas, the court narrowly framed the utilitarian aspect of the light set as providing light. It also implicitly devalued the utility of the ornamental covering—to protect the lightbulb—compared with its aesthetic and in relation to the utility of a light set. Such a narrow framing of the useful article broadens the copyright protection available for the aesthetic nature of a work. Finally, Triangl v. Lingzhi (S.D.N.Y. June 22, 2017) involved a Chinese manufacturer who copied and sold infringing swimsuit designs. This case, although it misapplied Star Athletica, extended protection to an arguably unoriginal design. In all three cases, the copyright owner won.

While Star Athletica is recent and few cases have followed, it will likely play a major role in copyright protection for fashion design going forward. Broad protection for copyright owners can pose significant threats to the delicate administration of copyright law. As Justice Thomas premised in his majority opinion, Star Athletica was not “a free-ranging search for the best copyright policy.” As such, Congress bears the responsibility of resolving any remaining uncertainty to prevent rampant monopolies. While the current separability doctrine may benefit copyright owners, it may hinder creation of additional works in the future by limiting the amount of material available in the public domain, thus harming the artistic benefits to society copyright law seeks to incentivize.

International Megan’s Law Raises Constitutional Concerns Over Sex Offender Rights

Written by Shafaq Hasan

Photo by dierken, CC BY 2.0 License.

In the last months of his presidency, former President Barack Obama focused on pushing forward criminal justice reform. Throughout his eight years in the Oval Office, he also prioritized  “banning the box” on federal job applications and reforming conditions in federal prisons. Given his dedication to criminal justice reform, some have been perplexed by his signing of International Megan’s Law, which may violate sex offenders’ constitutional rights.

President Obama signed the bill into law in February 2016 and it went into effect in 2017 under President Trump. The law requires registered sex offenders convicted of crimes against minors to carry a special passport that states their conviction when traveling abroad. Further, a sex offender must inform the Department of Homeland Security of any international travel plans in advance, after which the U.S. government will inform the country to which the individual is traveling that a “covered sex offender”—one convicted of a sexual offense against a minor—will be traveling there. The law also requests that other countries inform the U.S. if a known sex offender is seeking to cross their borders.

International Megan’s Law is an expansion of the federal Megan’s Law. Signed in 1996, it became the model for individual states to adopt. One of the motivations behind the expansion was to eradicate the sexual exploitation of children, as some predators travel abroad to exploit children in other countries. As the law indicates, child pornography and child sex tourism are international phenomena that law enforcement have struggled to adequately address. A 2010 report by the Government Accountability Office found that the federal government had no legal means of monitoring or denying passports to registered sex offenders, except those convicted of sex tourism.

The International Megan’s Law would seem to provide a solution to the problem because some American sex offenders will now be tracked and readily identifiable outside the country. However, several civil rights groups and commentators criticized the bill before and after it became law. Some likened the special passports to a scarlet letter or even the “yellow star” under the Nuremberg Race Laws. Others questioned whether the law would even combat child sex trafficking or exploitation. In early January 2018, the Alliance for Constitutional Sex Offense Laws and two California sex offenders filed a lawsuit alleging the State Department violated public comment procedures and threatened not to issue passports to some offenders.

As these challenges indicate, tracking sex offenders as they travel abroad poses serious constitutional concerns. One concern is that the law is both overbroad and too narrow, undermining its effectiveness.

The law has the potential to affect many people: a “covered sex offender” under the law means anyone convicted of an offense against a minor, which may be more than 500,000 people, not all of whom are violent predators. One criticism of the sex offender registry is that low-risk—or no-risk—one-time offenders who were convicted in special circumstances should be excluded from the registry. Similarly, this law would affect a sixteen-year-old convicted of statutory rape for having sex with his fifteen-year-old girlfriend when the age of consent in the state is sixteen because, according to International Megan’s Law, a minor is anyone under the age of eighteen. In one case, a nineteen-year-old who had been flirting with a girl who said she was seventeen, but who was actually fourteen, was also placed on the registry.

International Megan’s Law affects both of these types of individuals, despite each having a very low risk of reoffending. On the other end, the law excludes sex offenders who may be dangerous and at a high risk to reoffend, but who did not commit an offense against a minor. A prior offense against a minor is not necessarily a prerequisite for exploiting a child abroad. In general, data suggest that sex offenders have among the lowest same-crime recidivism rates. These discrepancies illustrate that the law may be more effective if it considered specific, aggravating factors in a sexual offense, such as interstate travel to have sex with a minor or a particularly brutal assault.

As it stands, some have argued, International Megan’s law is both over- and under-inclusive. It remains to be seen whether the law will effectively address child sex tourism if it does not take into account the nuances of sexual assault convictions.

A North Carolina Case Deals Another Blow to Partisan Gerrymandering

Written by Matt Freilich

Original cartoon by Elkanah Tisdale (1771–1835), of “The Gerry-Mander,” from which the term derives. Public domain, courtesy Wikipedia.

Gerrymandering, the practice of drawing electoral districts to advantage a particular political party, is under attack in courts across the country. The Supreme Court recently heard arguments in one case challenging the constitutionality of partisan gerrymandering and is scheduled to hear a second this Spring. Former Attorney General Eric Holder, with support from President Barack Obama, has embarked on a campaign to eliminate the practice. Last Monday, the Supreme Court of Pennsylvania declared the state’s electoral maps to be in violation of the Pennsylvania state constitution.

But while the Supreme Court has yet to say once and for all whether partisan gerrymandering is constitutional, a recent decision by a three-judge panel of the U.S. District Court for the Middle District of North Carolina provides some insight. Earlier this month, that court made history by becoming the first to declare partisan gerrymandering unconstitutional, and ordered the North Carolina state legislature to redraw its entire electoral map. Although the Supreme Court granted a stay of the district court’s decision, likely ensuring that North Carolina’s maps will remain unchanged for the 2018 midterm elections, the district court’s opinion may reveal one way the Supreme Court could find gerrymandered maps to be unconstitutional.

The case, Common Cause v. Rucho (M.D.N.C. 2018), featured a redistricting scheme that was candidly partisan. North Carolina Representative David Lewis and North Carolina Senator Robert Rucho, members of the Republican-controlled redistricting committee, collaborated with a Republican strategist, who also served on the party’s “redistricting team,” to draw the state’s electoral maps. The team, part of the party’s Redistricting Majority Project, or “REDMAP,” was tasked with drawing the state’s maps to “solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives for the next decade.” During debate in the North Carolina House of Representatives, Lewis flatly admitted his motivation in helping create the maps was that he thought “electing Republicans is better than electing Democrats.” Thus, absent any pretextual justification for the way the maps were drawn, the court addressed the issue of whether partisan gerrymandering standing alone is constitutional.

The court, in an opinion written by Judge Wynn and joined by Judge Britt, concluded that the state legislature’s redistricting plan violated the Equal Protection Clause, the First Amendment, and Article I of the U.S. Constitution. It then required the legislature to file a proposed remedial plan by the end of January and appoint a Special Master under Rule 53 of the Federal Rules of Civil Procedure to assist in drafting the plan. Judge Osteen concurred with respect to the majority’s Equal Protection and Article I analyses, but dissented with respect to its First Amendment analysis and decision to appoint a Special Master before allowing the legislature another chance to draw permissible districts itself.

Perhaps the most important aspect of the opinion in terms of predicting the future of partisan gerrymandering is how it dealt with justiciability. In Vieth v. Jubelirer (2004), a plurality of the Supreme Court held that partisan gerrymandering is a “political question,”  which courts cannot review. However, Justice Kennedy, who provided the plurality with a fifth vote, stated that the issue may eventually become justiciable if “judicially manageable standards” are developed to determine when a state’s redistricting scheme becomes unconstitutionally partisan. Unlike the challengers in the Wisconsin case currently pending in the Supreme Court, who attempted to devise such standards mathematically by measuring the amount of “wasted votes” in an election, the challengers in Rucho relied on a variety of empirical evidence allegedly demonstrating that supporters of non-Republican candidates would be significantly underrepresented in elections under the state’s maps. While the court there was persuaded by the plaintiff’s “academically derived, social science evidence,” whether such evidence would persuade Justice Kennedy, whose vote will likely decide the pending Supreme Court cases on the issue, is less clear.

South Dakota v. Wayfair, Inc.: Supreme Court Will Decide the Fate of Online Sales Tax

Written by Lisa Gunter

Image by Scott Lewis, CC BY 2.0 License.

Earlier this month, the Supreme Court agreed to hear South Dakota v. Wayfair, Inc. (S.D. 2017), a case that has the possibility to fundamentally change the circumstances in which online sales taxes must be collected, not only in South Dakota but nationwide. In Wayfair, South Dakota seeks to overturn Quill v. North Dakota, a 1992 Supreme Court ruling that South Dakota calls outdated. Quill involved an out-of-state office supply retailer that sold floppy disks without charging sales tax. The Quill Court held that a state cannot require a retailer to collect sales tax from a customer unless that retailer has a physical presence in the state. The state of South Dakota argues that the reasoning and logic used in Quill has largely gone the way of the floppy disk.

In Quill, the Supreme Court held that under the Commerce Clause, the existence of customers in a state alone did not create the sufficient nexus for North Dakota to impose a sales tax. Instead, a taxpayer must have a physical presence (e.g., offices, branches, warehouses, employees) in a state to require collection of sales tax for purchases made by in-state customers. This reasoning was at least partially based on the fact that in 1992, there were over 6,000 separate sales and use tax jurisdictions in the U.S. and to impose a sales tax collection obligation on a remote seller would be far too much of a burden. The Supreme Court held that any change to such a scheme was a task for Congress.

However, in a 2015 case involving a similar issue, Justice Kennedy penned a concurrence stating that the Court should reevaluate Quill in light of “changes in technology and consumer sophistication.” As a direct response to Kennedy’s concurrence and as a direct challenge to the precedent set in Quill, South Dakota passed a law requiring the collection of sales tax from certain remote sellers and brought suit against retailers who did not comply. Consequently, Wayfair, Inc., an online furniture retailer, along with other similarly-situated online retailers, challenged the statute as unconstitutional in light of Quill.

Ruling in favor of South Dakota would require the Supreme Court to explicitly overturn the Quill ruling, a seemingly tough ask. However, in addition to Justice Kennedy, then-Federal Appellate Judge Gorsuch stated in Direct Marketing Associationn v. Brohl that the Quill decision had an “expiration date” and that it seemed “deliberately designed to . . . wash away with the tides of time.” Thus, there seem to be at least two Justices strongly in favor of South Dakota’s argument. However, the direction in which the remaining votes will fall seems largely up for debate and will be something to watch closely in the coming months.

The outcome of Wayfair will have tremendous ramifications for all online retailers, as well as all consumers who shop online. While certain online retailers, like Amazon, have individually made the decision to collect sales taxes in all states, the majority do not currently collect sales taxes in jurisdictions in which they have no physical presence. The U.S. Government Accountability Office estimated in a November report that states and municipalities could gain between $8 billion and $13 billion in annual revenue if they could require online retailers to collect sales tax. A ruling in favor of South Dakota would allow states to tap this currently inaccessible, and ever-growing, source of potential revenue. Additionally, traditional brick-and-mortar retailers argue that this would help even the playing field between them and online retailers, as it would require both types of businesses to levy sales taxes on customers.

The Supreme Court is expected to hear oral argument in Wayfair in April.