2018, Vol. 113, No. 3
Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect front-line equitable screens, promote procedural fairness, and act as last-resort circuit breakers in the administration of federal deportation law. The dynamics are messy and contested, but these efforts in the long run help ensure the vindication of equity-based legitimacy norms in immigration enforcement.
In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts have refused to consider evidence of biased statements by government officials in cases alleging, for example, that facially neutral laws were enacted for the express purpose of singling out Muslims. Courts outright ignore explicit bias when they consider intentional discrimination to be justified by goals such as law enforcement. And courts have developed a “stray remarks doctrine” in employment discrimination cases to prevent juries from hearing evidence of explicit bias. This Article identifies and criticizes legal arguments against consideration of explicit bias, including concerns about the feasibility of inquiries into intent, worry about undermining otherwise legitimate policies, the desire to avoid chilling effects on free speech, and the fear that confronting explicit bias will result in backlash. It argues that discrimination law should dispense with doctrines that shield explicit bias from consideration.
Notes & Comments
Is That Appropriate?: Clarifying the IDEA's Free Appropriate Public Education Standard Post-Endrew F.
The Individuals with Disabilities Education Act (IDEA) requires schools to provide all students who qualify for special education services with a free appropriate public education (FAPE). However, the IDEA does not specify how much substantive educational benefit students must be afforded in order to receive a FAPE, leaving this question for the courts. For over thirty years, courts split over the amount of educational benefit that school districts must provide to their special education students, leading to significant confusion and anxiety among parents and school officials regarding their legal rights. The Supreme Court sought to clarify this standard in Endrew F. v. Douglas County School District RE-1 by ruling that special education students must receive an education that would allow them to make “appropriate progress” based on their individual circumstances. Unfortunately, the Court’s new standard created additional ambiguity and left lingering questions among stakeholders within the education community regarding school districts’ obligations to these students. This Note addresses these questions by identifying the implications of the Court’s appropriate progress standard for students, teachers, and school operations, and proposes that courts adopt a two-part test for applying the new standard that evaluates both the procedures of particular institutions and the substantive value of students’ individualized curricula. Defining the FAPE requirement this way would clarify the standard and provide stability in an area of law plagued by inconsistency.
The National School Lunch Program (NSLP) serves over thirty million children daily in over one hundred thousand schools across the United States. Though it is regulated at the federal level, state and local education agencies have a great deal of authority when it comes to actually implementing the NSLP. As a result, a number of schools nationwide have adopted practices that identify students who participate in the NSLP, which causes those students to experience stigmatization. This Note focuses on two of these practices: (1) the physical separation of paying and nonpaying students in the cafeteria, often resulting in de facto racial segregation, and (2) the practice of “shaming” students who are unable to pay for their meals. Given that minority students participate in the NSLP at a disproportionately high rate, this Note explores whether these state and local practices could potentially form the basis of an actionable claim of disparate impact under Title VI of the Civil Rights Act of 1964.
Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This Essay examines how President Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln, as well as the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can provide support for legal norms, lest we place all of our trust in presidential self-restraint and good judgment.