Latest Scholarship

September 27, 2013

Angela Harris Festschrift

Professor Angela Harris's former colleagues at Berkeley Law are celebrating her incredible work with a daylong conference today.

Professor Harris is one of the nation's foremost scholars in the fields of critical race theory, feminist legal theory, and civil rights. She joined the King Hall faculty from UC Berkeley School of Law in 2011.

Here is the program for today's Festschrift:

Welcome / Opening Remarks

  • Melissa Murray (Berkeley Law)
  • Acting Dean Gillian Lester (Berkeley Law)

Panel 1: Feminist Legal Theory

  • Kathryn Abrams (Berkeley Law) Moderator
  • Mary Anne Franks (University of Miami)
  • Priscilla Ocen (Loyola LA)
  • Camille Gear Rich (USC)
  • Madhavi Sunder (UC Davis)

Panel 2: Race and Criminal Justice

  • David Sklansky (Berkeley Law) Moderator
  • Mario Barnes (UC Irvine)
  • Aya Gruber (Colorado)
  • Cynthia Lee (GWU)
  • L. Song Richardson (Iowa)

Lunch and Keynote Address

  • Keynote Speaker: Dean Rachel Moran (UCLA)

Panel 3: Economic and Environmental Justice

  • Robin Lenhardt (Fordham) Moderator
  • Tucker Culbertson (Syracuse)
  • Sheila Foster (Fordham)
  • Trina Jones (Duke)
  • Emma Coleman Jordan (Georgetown)
  • Angela Onwuachi-Willig (Iowa)

Closing Remarks

  • Angela Harris

Reception with Alumni and Festschrift Guests

Dinner (with remarks by Dean Kevin R. Johnson, UC Davis)

September 17, 2013

An Immigration Gideon for Lawful Permanent Residents

I had the privilege of participating in a Yale Law Journal symposium entitled "The Gideon Effect:  Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright."  Gideon, of course, was the path-breaking decision guaranteeing counsel to defendants on criminal prosecutions.  The symposium included a star-studded cast of speakers, including Carol Steiker, Erwin Chemerinsky, Paul Butler, Neal Kumar Katyal, Jack Chin, and many others.

My contribution is entitled An Immigration Gideon for Lawful Permanent Residents, 122 YALE L.J. 2394 (2013) and can be downloaded at: http://www.yalelawjournal.org/the-yale-law-journal/essay/an-immigration-gideon-for-lawful-permanent-residents/

Here is the abstract to the article:

In evaluating the legacy of Gideon v. Wainwright, it is critical to remember that the Supreme Court's decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. This Essay studies the right to counsel in a particular category of civil cases-immigration removal cases, which implicate life and liberty interests similar in important respects to those at stake in criminal prosecutions. It contends that classic due process analysis, including the constitutional protections previously extended by the Supreme Court to lawful permanent residents, requires guaranteed counsel for lawful permanent residents, the group of noncitizens most likely to have the strongest legal entitlement to remain in and the deepest community ties to the United States. Temporary visitors and undocumented immigrants generally lack such a weighty legal interest and community ties. Modern developments in U.S. immigration law and enforcement, including the dramatic increase in removal proceedings instituted by the U.S. government over the last ten years, limits imposed by Congress on judicial review of agency removal decisions, and the racially disparate impacts of immigration enforcement, make guaranteed representation for lawful permanent residents more necessary now than ever.

September 13, 2013

Precisely How Much Academic Freedom Should (Does) the First Amendment Afford to Professors and Teachers at Public Schools?

Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In the space below, we analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit.  We are quite sympathetic to the thrust of the Ninth Circuit ruling, but we think that a more concrete and categorical framework for resolving academic freedom disputes needs to be fashioned, lest public schools and their faculties be embroiled in a great deal of time- and money-consuming litigation that will generate inconsistent and unpredictable results.

Some Background on the Demers Case

As is relevant here, the facts of the Demers case are pretty straightforward.  David Demers is a tenured member of the faculty at the Edward R. Murrow College of Communication at Washington State University, a large, public, research-oriented university located in Pullman, Washington.  While serving on a university committee charged with exploring possible changes to the way in which the Murrow College was organized and the way it should relate to other units of the University, Demers wrote and distributed a document called "The Plan."  The Plan was Demers's two-page blueprint for dealing with some of these issues of organizational structure and funding (and some other matters too).  Demers did not distribute The Plan to other members of the committee on which he served, but he did send The Plan to high-level administrators at Washington State, as well as to members of the media and others.  After suffering what he claimed were adverse employment actions, Demers brought suit against various members of the Washington State administrative hierarchy alleging that they had retaliated against him, in violation of his First Amendment rights, for distributing The Plan and the ideas contained in it.

The defendants denied that any action they ever took against Demers was in retaliation for his having distributed The Plan. They also argued that, in any event, The Plan was not protected speech under Supreme Court doctrine because it was written and circulated "pursuant to Demers's official duties."  The trial court ruled in the University's favor. On appeal, the Ninth Circuit reversed the trial court's decision, at least in part.

The Ninth Circuit's Decision That Garcetti Does Not Apply

The three Judges on the Ninth Circuit panel agreed with the University that "The Plan" was undertaken pursuant to Demers's official duties (even though he tried to characterize it as something he wrote and circulated in his private-person capacity) because it addressed much of the subject matter of the University committee on which he served, and because he sent it to, among others, University administrators who might have been able to act on it.  But the Ninth Circuit then definitively held that not all things that a public school academic employee writes and distributes in connection with his official duties are without First Amendment protection. In particular, the Ninth Circuit ruled that the complete-deference-to-the-government standard of Garcetti v. Ceballos-a 2006 United States Supreme Court decision-does not apply in the setting of public employees who are teachers and scholars.

Garcetti involved a memorandum written and publicly disseminated by a deputy district attorney alleging that a police search warrant affidavit contained problematic falsehoods and misrepresentations.  When higher-ups in the DA's office seemed to punish him for blowing the whistle in this way, he filed suit contending that he had been the victim of retaliation for his comments, in violation of the First Amendment.  The Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Ninth Circuit in Demers held, building on language in some of the opinions in Garcetti and other cases discussing "academic freedom," that the Garcetti framework does not apply to "speech related to scholarship or teaching."  Instead, according to the panel, teaching and academic writing that are performed pursuant to the official duties of a teacher and professor should be governed by the two-part balancing test laid out by the Supreme Court in the pre-Garcetti case of Pickering v. Board of Education.  Under that test, the employee must show first that his or her speech addressed matters of public concern.  If this requirement is satisfied, then the employee's speech is protected from punishment if the employee's interest "in commenting outweighs the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Our Evaluation of the Ninth Circuit's Course of Action

We well understand why the Ninth Circuit decided not to apply the Garcetti approach to the university-professor setting across the board.  But we are troubled by the indeterminate, ad-hoc character of the Pickering balancing test, and we think that more categorical boundaries need to be identified in order to provide an appropriate structure for the litigation between schools and their academic employees that will likely ensue once Garcetti is found not to govern these disputes.

Let us begin by explaining why we think there is a strong case to be made that university professors deserve First Amendment protection for at least some of what they say and do, even when they do it on the government's dime and pursuant to their public-employment duties. It is always dangerous to identify certain classes of public employees who should enjoy more free speech rights than others, but we think that a distinctive protection for professors can be derived from a functional analysis of the jobs that universities are supposed to play in modern society.  We focus on two functions, in particular:

First, many universities play a unique role in our society in pressing beyond accepted wisdom to critique and expand our knowledge of the world.  Universities are committed to certain methodological principles, but so long as research is done within that methodological framework-which requires, among other things, comparison of theory to empirically verifiable phenomenon, rigorous logic, and the careful separation of premises from conclusions and correlations from causes, and attention and responses to counterarguments that have been made or are likely to be made against any particular thesis-universities are committed to going wherever the search for truth leads.

Second, universities serve as an independent source of values and authority and as such they operate as a check on government power-a function that is comparable to the ways in which the press or organized religion can serve as a check on government abuses or mistakes. University academics have blown the whistle on many instances of government error or overreach.  The difficulty with applying this argument to public universities, however, is that we would be asking the government to fund a check on its own authority. But the idea is not implausible. The basic notion is, after all, intrinsic to all the separation of powers; the legislature funds the courts, for example, which themselves serve as a check on legislative authority.

For these reasons (which largely explain some of the stray Supreme Court language, extolling the virtues of academic freedom, on which the Ninth Circuit relied in rejecting the applicability of Garcetti), we see potential room to carve out special protections for academic speech. But if a functional analysis helps make the case for special protections for university scholars, it also substantially undercuts the claim for academic freedom by elementary- and high-school teachers (which the Ninth Circuit also recognized albeit in dicta.)  Elementary and middle schools, of course, serve different purposes than universities.   The range of stakeholders is broader. More importantly, public-school education involves a mixture of values and cultural inculcation-that is, teaching children what society wants and needs them to accept-as well as the development in students of intellectual maturity, independence, and the ability to think for themselves.  And there is no consensus (the way that there might be a consensus on the purposes of research universities) on how that mix should work. As a result, there is a much shakier foundation for judicial review. And simply substituting judges' opinions on pedagogical issues for those of school boards or administrators seems troubling in principle and chaotic in practice.

Relatedly, elementary- and high-school teachers are not in the business of generating new knowledge; it's not part of their function. As a result, there is no functional need to promote free inquiry in the performance of their jobs. In a similar vein, high schools are not intended to serve as sources of values that serve a checking function on government.  And finally, operating the public schools is a traditional local governmental function. Community interests, values, and needs may differ by location. Democracy is responsive to local differences and concerns. First Amendment doctrine might have the tendency to universalize, homogenize, and nationalize public-school curricula and pedagogical decisions.

Because universities are so different from elementary and high schools in this regard, we think that the Ninth Circuit should probably have limited its holding concerning Garcetti's applicability (or non-applicability) to the research-university setting.  Even though the Ninth Circuit observed that the Pickering test must be attentive to context, we can foresee much mischief if an ad-hoc balancing test like Pickering's leads to a flood of lawsuits brought by elementary-school and high-school teachers who object to the pedagogical decisions made by principals and local school boards on first amendment grounds.

And even within the realm of the university, we wonder whether the Pickering formula is too open-ended, and likely to produce costly litigation that is so fact-specific that it cannot be resolved short of full-blown and time-consuming trials.  The Ninth Circuit does say that some deference to universities is owed in some settings, but not all lower courts will be clear about how much deference to afford, and free-speech review involving tests that demand indeterminate balancing may be an invitation to constitutional litigation by every scholar who disagrees with the evaluation of his or her teaching or scholarship.

A more categorical approach is greatly preferable. Various substantive decisions, as long as they are clearly communicated to the faculty so as to avoid any notice/due process problems, should be beyond the scope of constitutional review. (State legislatures or public universities may elect to subject these decisions to judicial review, but the Constitution does not require that they do so. That way, if review becomes problematic and unreasonably costly, it can be modified without changing constitutional doctrine.)

For example, universities should be free to determine their curricula, and also be free to prescribe precisely what particular classes should cover. Professors can be required to teach assigned classes, notwithstanding their subject-matter preferences. Universities can determine classroom hours, etc. If an economics professor decides instead to write literary criticism, the department can reject his work as unacceptable within the discipline in which he was hired to teach. The Supreme Court case of Arkansas Public Television Comm. v. Forbes suggests that judicial review under the free speech clause is inappropriate when government engages in functions that require the exercise of substantial editorial discretion.

Clearly, that reasoning applies to many content-neutral and content-discriminatory university decisions. And even a fair bit of viewpoint discrimination may be permissible. For example, to our minds it does not necessarily violate the First Amendment for a university to require balanced teaching on controversial subjects in the classroom, even if a professor would have a preference to be more polemical.

In the space of this essay, we cannot, of course, construct all the categories we think should be identified to guide and reform otherwise standardless judicial balancing, but we hope that Demers is the first step in the direction of that enterprise by lower courts.

 

September 3, 2013

A Debt of Gratitude for the Civil Rights Movement

Cross-posted from the American Constitution Society Blog.

As Americans reflect on events a half century in the past, I hope they will consider how it might guide our actions now. In particular, I hope people will think about what Americans still owe the African American community.

On August 28, 1963, the date of the March on Washington, the United States was pervasively discriminatory to a degree not fully appreciated today.  African Americans bore a significant burden; in many or most parts of the country, they could not vote, attend public schools with whites, patronize the public accommodations or live in the housing that they wished, or hope to be hired for a broad range of public and private employment. 

But African Americans were hardly the only oppressed group. Rape within marriage was no crime, and, although the Equal Pay Act was on the books and would take effect in 1964, employers could get around it simply by not hiring women for good jobs.  The idea that gay men and lesbians might legally marry someone of the same sex was absurd; instead, investigation, prosecution, and imprisonment for sodomy were an important part of the business of law enforcement.  Un-American immigrants (Africans, Jews and Catholics) were discouraged from immigrating through gerrymandered quotas; Asians were excluded by race.  The list of those whose marginalization was justified and defended as obviously correct was long, and included people with mental or physical disabilities, Indians, religious minorities including Jews and Muslims, children born out of wedlock, and single mothers.

America was remade thanks to the bodies and blood of African Americans -- whites and others also participated in the civil rights movement, of course, but, primarily, it was African Americans. The civil rights struggle, exemplified by the March on Washington, had revolutionary consequences. Part of its effect was near-term changes like passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the unsung but perhaps most effective anti-racist legislation of the period, the Immigration and Nationality Act Amendments of 1965, which, by allowing for immigration on a non-racial basis, put America on the path to being a majority-minority nation.  

But more fundamentally, the movement established a principle of equal dignity and treatment that is still bearing fruit, not just for African Americans but for all people. Perhaps its major legacy is that a working majority of Americans are skeptical of any claim that a group should be excluded or disadvantaged; discrimination must justify itself, and, usually, it cannot.

The bitter irony is that African Americans have not enjoyed a full share of the social changes which they unleashed.  Women as students, workers and political leaders have made great strides in just a few decades.  Asian and Latino immigration has exploded; Latinos are now the country’s largest minority group.  Homophobia as a legal policy is rapidly collapsing.  But, because of current discrimination and the present effects of past discrimination, African Americans remain residentially and educationally segregated, over-incarcerated and under-employed.  They are poorer, less healthy and otherwise disadvantaged not only in comparison to whites, but also in some respects compared to recent immigrant groups.

The truth is that it is not obvious that naked self-interest compels women, Asians, gays and Latinos to be concerned about the African American community. If the food stamp program is cut or affirmative action for African Americans is eliminated, for example, that likely will not reduce female participation in higher education or undermine support for gay marriage. And all of those groups suffered in their own ways and can take credit for fighting their own battles to win a place at the table.  Nevertheless, African Americans do not enjoy basic equality in the sense of a full and fair shot to make it in this country. For all Americans concerned about justice, particularly those who would not be where they are, or here at all, but for the African American contribution to the principle of equality, this anniversary should be a reminder that there is important unfinished business.