Civil Rights Archives - Princeton Legal Journal

More Than Money: The Costs of Caretaking for People with Disabilities

Jeannie Kim

Many states have instituted governmental programs that provide support for people with disabilities that also assist those who are low-income. One major federal provision that often intersects with these disability rights programs is the U.S. Housing Act of 1937. Section 8 of this piece of legislation includes the Housing Choice Voucher program, which helps low-income families obtain housing that they can afford. Families that qualify as low-income receive vouchers that they can use to subsidize their rent for eligible properties. The voucher subsidy amounts are calculated based on the property and the family’s income. Due to payments from state programs that offer support for disability caretaking, however, many people with disabilities and their families often struggle to receive adequate and fair subsidies. Although the entire nation has made significant progress in increasing disability rights and care, this is an ongoing journey to increase protection for those with disabilities.

The case Reilly v Marin Housing Authority (2020) involves both the Section 8 Housing Choice Voucher program and California’s In-Home Supportive Services (IHSS) program. IHSS allows those with disabilities to stay in the safety of their homes instead of entering a care facility by paying for the caretaking services that the individual receives at home, such as protective supervision, personal care services, and more. In this case, Kerrie Reilly and her family were supported by Section 8 Housing Choice Vouchers for their rent, and Reilly was also paid by IHSS to take care of one of her daughters who had a serious developmental disability. However, Marin Housing Authority (MHA) included these IHSS payments in their calculation of Reilly’s income when determining the amount for her voucher subsidies, resulting in lower subsidies. Reilly’s request for her IHSS payments to be excluded from MHA’s calculations was denied. Ultimately, the California Supreme Court ruled that the MHA was violating Section 8 and that the IHSS payments should not be incorporated into the calculation of Reilly’s income. This case meaningfully expanded the rights of those with disabilities coming from low-income households, and its ruling should be applied to other related cases to expand disability rights.

Most significantly, Reilly solidified the precedent of a more expansive interpretation of Section 8. IHSS’s payments are supposed to offset the costs that a family endures by taking care of the family member with a disability. During the case, MHA claimed that “cost” solely refers to money: it “does not encompass emotional costs Reilly bears in caring for her daughter, nor any lost opportunity costs when Reilly forgoes outside employment to be her daughter’s IHSS provider.” However, the California Supreme Court rejected this narrow view. The majority opinion declared that the term “cost” not only entails the monetary definition, but also “the expenditure of something, such as time or labor, necessary for the attainment of a goal,” which in this case is providing adequate care to Reilly’s daughter. This comprehensive understanding of “cost” has powerful implications for the future of those with disabilities: it is remarkably unrealistic to believe that caretakers only encounter strictly monetary obstacles. MHA’s perspective is, therefore, a superficial understanding of the time and effort required in caretaking for people with disabilities, and proceeding with their definition would result in countless instances of careless oversight by IHSS providers. By establishing a more holistic definition of the term “cost,” the California Supreme Court encouraged a more accurate governmental and legal understanding of caretaking and ensured that those with disabilities and their caretakers are legally protected.

Other related cases, even those that take place in other states, should be reconsidered through the framework of this more expansive interpretation of “cost” in order to better protect the financial security and emotional wellbeing of those with disabilities. For instance, Anthony v. Poteet Housing Auth (2009), mentioned in the dissent for Reilly, saw plaintiff Brenda Anthony and her disabled son living together in low-rent housing calculated based on income. Anthony’s son required attentive care and qualified for personal-assistant services through an organization called MED TEAM. Anthony started working at MED TEAM as a personal-care attendant; her main client was her son, but she also had other patients. Anthony’s salary from MED TEAM was included in calculations of her income for her rent, and Anthony argued that it should be excluded. The United States Court of Appeals for the Fifth Circuit ruled that Anthony did not qualify for wage exemptions because she never “[incurred] any costs.” The majority opinion in Reilly also argues that Anthony does not apply at all because it is impossible to distinguish between Anthony’s MED TEAM wages for her son and for her other clients. This is a misguided evaluation: applying the broader definition of “cost” from Reilly, regardless of the fact that Anthony also received payment for other clients, Anthony was still incurring costs specifically because of her services for her son. It is important to consider the opportunity cost of this situation: if, for example, Anthony did not have to provide services for her son, then she could have worked with more patients and increased her wages. To determine that the lack of clarity among Anthony’s various sources of income is more important than the costs she endured disregards the root issue: Anthony’s losses from taking care of her son. Therefore, Reilly should provide a new method of understanding this case by raising questions beyond the monetary element of Anthony’s relationship with MED TEAM.

Another relevant case which merits the application of this more expansive perspective of “cost” is in the Matter of Cindi Ali (2020), an appeals case that came before the Minnesota Supreme Court. The case is similar in many ways to those previously discussed. Cindi Ali’s son has autism spectrum disorder and was eligible for protective services through Minnesota’s Developmental Disability Waiver program. Ali received monetary support from the Consumer Directed Community Support (CDCS) program, and she utilized part of this budget to pay herself as the main caretaker for her son. The amount of CDCS money that Ali allocated as her own wages was included in calculating her income for Section 8 housing. The court ruled that “cost” simply refers to monetary expenses, and since Ali incurred no monetary expenses for taking care of her son, her income was rightly calculated. Once again, this is a flawed conclusion—“cost” is a term that should be used to entail the “expenditure (as of effort or sacrifice) made to achieve an object,” as Ali argued. Just like Reilly, however, Ali should have received protection. While Minnesota’s programs and legislation for this issue differ slightly from California’s IHSS program, both programs entail offsetting costs in relation to Section 8. Other states like Minnesota should adopt California’s expansive view of this topic to increase legal protections for those with disabilities.

Revisiting and analyzing related cases according to the Reilly majority opinion illuminates previously neglected concerns regarding the challenges faced by those taking care of people with disabilities. Reilly’s definition of “cost” should be applied to other cases to better protect disability rights, and its interpretation of IHSS’s protections should also be adopted by similar programs in other states. This will have a transformative effect on creating a safer environment, society, and legal climate for those with disabilities.

Bill 96: A Violation of English-speaking Rights in Québec

Sidney Singer

In Canada there are multiple pieces of legislation that protect the rights of citizens to live their lives in one of the two official languages, English or French. The earliest, the British North America Act in 1867, implemented French and English as official languages of the parliament, followed by the Official Languages Act in 1969, and the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter of Rights and Freedoms specifically pertains to education and holds that Canadian citizens have a right to be educated in either English or French. In June 2022, Bill 96 was passed in the Canadian Province of Québec. The bill states that its purpose is “to affirm that the only official language of Québec is French.” It also affirms that French is the common language of the Québec nation.” However, I argue that Bill 96 is unconstitutional under Section 23 of the Canadian Charter of Rights and Freedoms, due to enrollment caps placed on English language schools.

The bill also targets Quebec’s English language educational system, placing caps on the amounts of students permitted in each of the “English-language institutions providing college instruction” at the Minister of Higher Education, Research, Science and Technology’s discretion. The Bill further states that the total number of English-language students cannot exceed 17.5% of the French-language student population, and that the proportion of English and French students must stay the same from year to year.

Immediately after the passage of Bill 96, the English Montreal School Board (EMSB) voted to challenge the bill, with spokesperson Joe Ortona for the EMSB saying that “I’m ready to stand up and fight as an English-language school board and an English-language institution and to stand up for these rights that the government has decided they can throw out the window.”

The EMSB challenge to Bill 96 specifically cited Section 23 of the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter is as follows:

Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.

In other words, Section 23 of the Charter of Rights and Freedoms guarantees that if a parent is educating one child in their family in either English or French, they have the right to have all their children receive their instruction in that language. However, what happens if one child is enrolled in an English language school, but due to enrollment caps, their sibling is unable to enroll? Such a scenario would directly violate section 23 subsection 2 of the Charter, which states that “the right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province.”

Association des Parents ayants droit de Yellowknife et al. v Attorney General of the Northwest Territories et al., a 2012 case in Canadian Supreme Court of the Northwest Territories, is particularly pertinent as it dealt with the number of students in Yellowknife that had the right to attend Francophone schools. The court looked at census data, determined that there were around 500 eligible students that could attend francophone schools, and concluded that “the capacity of the minority school had to be increased to take into account the number of students it may have to accommodate in the future. The capacity of the school had to be between that number and the existing demand.”

This decision was decided under section 23 of the Charter, due to the fact that all children who had the right to minority-language education needed to be able to have a place in the French schools if they so wished. Yet the court’s ruling quite clearly contradicts the recent cap on English Language student enrollment in Quebec under Bill 96. If minority language schools must “take into account the number of students it may have to accommodate,” the action of capping enrollment for minority language institutions is directly contradictory.

The Case of Bill 96 is an interesting inversion of the usual fight for language rights within Canada, wherein French is most often the minority language. However, the reversal of the roles of English and French does not mean that they can be treated differently under the constitution, which aims to protect the rights of English and French speakers equally. Just as all children who have the right to be educated in French must be afforded the right to attend school, all children who have the right to an English language education must be treated the same.

Directly looking at the rights entrenched in the Charter of Rights and Freedoms, it is evident that the proposed enrollment caps on English language institutions and instruction in Quebec is unconstitutional. If all citizens have the right to receive an education in their first language, the idea that one can cap the enrollment in certain language schools will force students to abandon their charter rights to receive an education. If there are more students who qualify for English education than there are spots for enrollment, the constitutional rights of these students to receive an English language education, if they so desire, are being violated.

Justice Until Death: The Necessity of Swift and Good-Faithed Capital Punishment

Justin Murdock

Abstract

There are two factions when it comes to the debate over capital punishment: one believes it is legitimate retribution for heinous criminal acts, while the other believes it is the epitome of archaic punishments which violate the principles of the Eighth Amendment. Capital punishment in the United States is limited to five main methods: lethal injection, electrocution, lethal gas, hanging, and firing squad. Lethal injection remains the most popular method of the death penalty. Consequently, in states that continue to employ lethal injection, cases of botched execution have long posed issues. One such example is the recent botched lethal injection of Kenneth Eugene Smith. I argue that given these instances of negligence in applications of capital punishment, more states should use newly-available alternative methods, such as nitrogen hypoxia, when administering capital punishment.

Background

The case study of focus sparked one of the greatest, most drawn-out legal fights pertaining to capital punishment. Kenneth Eugene Smith was convicted of murder in 1989 by a jury vote of 10-2 and sentenced to death row for grotesquely killing Elizabeth Dorlene Sennett in a murder for hire. Smith appealed his case for a retrial through Kenneth Eugene Smith v. State (2000), which resulted in a jury vote of 11-1 to sentence him to life without parole. However, the judge invoked §13A-5-47(e) of the 1975 Alabama Code, which allowed him to overrule the jury’s recommendation, and sentenced Smith to death. In 2017, however, Alabama introduced a statute to abolish the ability for judges to override a jury’s decision. Nevertheless, the law was not retroactive, so when Smith appealed to the Federal Supreme Court, he was denied review.

Smith argued in the same appeal that the Alabama Department of Corrections violated his due process rights under the Fourteenth Amendment since he was not accordingly notified of a nitrogen hypoxia alternative when made available in 2018 in Alabama. Following his final unsuccessful objection to his capital sentence, Smith later had his execution administered. Smith was strapped into a gurney and not fully anesthetized, resulting in the jabs in his limbs and groin feelings “like a knife”. This execution was administered quite late, and since the death warrant restriction expired at midnight, the process had to be called off. Smith’s failed execution is just another piece in Alabama’s history of botched executions: the state also botched the executions of Alan Miller and Doyle Lee Ham, with officers sleeping on their jobs and the inmates suffering from delays and chemical burns resulting from improper injections. All these cases have been united in their application of the Eighth Amendment based on their grotesque execution.

The final court decision in Smith’s case accords with the national precedent on capital punishment but opens interesting nuances to the penal issue. The reigning District Judge R. Austin Huffaker Jr. dismissed the appeal, stating that the violations alleged against the Alabama Department of Corrections (ADOC) should not pose a constitutional issue according to the Eighth Amendment—specifically its prohibition on “cruel and unusual punishment.” Past plaintiffs such as Miller and Ham have also cited a violation according to the Eighth Amendment, showing that based on precedent, the negligence of ADOC raises the question of constitutionality of the method of capital punishment rather than the practice of capital punishment itself. Essentially, the intended punishment inherently is not deemed a constitutional violation, but the actual application raises questions into the viability of the action.

Given the facts of Smith’s case and prior cases demonstrating consistent problems of negligence and inefficiency, this article brings two claims about the motive behind capital punishment and the future regarding lethal injection practices. To clarify, this article is not intended to discuss the merits of the death penalty as a whole. This concept has been disputed many times in court, often siding with its federal legality, so arguing against it in this piece would be futile. Instead, this article breaks apart specific kinds of capital punishment. In particular, the death penalty should be administered both swiftly and in good faith. If the accessory pain associated with the method of capital punishment goes beyond and impairs the ability to administer a swift execution, it could rise to cruel and unusual punishment. Since lethal injections are prone to failures that can lead to violations of the Eighth Amendment, courts should instead open viable, convenient alternatives such as exploring the safer nitrogen hypoxia execution method to accomplish the motives of the death penalty.

Legal Bases

Two parts of two amendments are fundamental to determining the legality of the punishments Smith, and others like him, suffered: the Eighth Amendment’s prohibition on “cruel and unusual punishment” and the Fourteenth Amendment’s prohibition on the abridgement of “due process.” Especially when alternatives are available but not fully delineated to the defendant, like Smith, the Fourteenth Amendment is crucial in piecing together the defendant’s rights against government punishment. If the purpose of these amendments is to protect minorities and the vulnerable by ensuring equal rights for all, any mishandled implementation of this measure could be viewed as the government exceeding its due authority to administer fair punishment. Therefore, this shows that the administration of botched lethal injection procedures, at least by the ADOC, should search for viable alternatives to avoid remaining within the bounds of the Eighth and Fourteenth Amendments.

While justices have typically sided with the government in capital punishment cases, key insights have nevertheless been shed about the merits of certain procedures, such as Smith’s botched lethal injection. For instance, in a 7-2 decision in Baze v. Rees (2008), the Supreme Court addressed the constitutionality of a four-drug lethal injection. While the Court concluded that the lethal injection as a concept did not violate the Eighth Amendment, members of the Court suggested that if states consistently utilize methods without sufficient justification compared with better alternatives, that may amount to cruel and unusual punishment. Additionally, Bucklew v. Precythe (2018), decided 5-4, involved an appeal in which Bucklew argued that his pre-existing medical condition of blood-filled tumors subjected him to excessive pain when receiving a lethal injection, culminating in “cruel and unusual punishment.” Again, the Court did not find the death penalty to amount to an unconstitutional punishment. However, Justice Gorsuch’s remarks do hint at this article’s claims of swift and good-faithed execution practices. Saying that the punishment should not provide “superadd[ed] . . . terror, pain, or disgrace,” he wrote that the death penalty should ideally be quick, but is not guaranteed to be entirely pleasant or easy. While there will undoubtedly be some degree of pain associated with the highest level of punishment there is in the country, inmates do still have rights that are supposed to prevent the administration of that punishment from being unnecessarily painful. ADOC’s negligence, however, caused it to infringe upon these rights.

Conclusions

Given the history of repeated botches and potential alternatives, insights from concurring and dissenting opinions should be kept in mind when witnessing this persistent negligence in capital punishment. If developments in nitrogen hypoxia make it a reasonable alternative, like in Alabama in 2018, defendants should be informed of such rights. Even if this novel practice has just surfaced in the realm of capital punishment, it should still be explicitly available if the state deems it to be safe. Even if nitrogen hypoxia is not safe according to other states’ laws, it is still abundantly clear that the ADOC failed its procedure and demonstrated incapability in administering lethal injection. If states still stalwart this process and refuse to provide viable alternatives, as even Supreme Court justices have opined, states will unfortunately continue to find themselves in a flurry of contested Eighth and Fourteenth Amendment violations.

Electronic Surveillance, the Fourth Amendment, and the NYPD’s “Muslim Surveillance Program”

Annie Akbar

In a letter to James Madison after the French Revolution had begun, Thomas Jefferson wrote, “The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.” Here, Jefferson is advocating for a periodic revision of the Constitution, one in which the citizenry rethinks its guiding document in light of the circumstances of a new era. When comparing our age to that of our Founding Fathers, it is not difficult to understand Jefferson’s sentiment. The advancement of our society, especially in terms of technology, has significantly affected the ways in which civil rights (and their infringement) appear. This is especially true when examining electronic surveillance and its implications for Americans’ constitutional liberties. For example, in Hassan v. City of New York (2015), the United States Court of Appeals for the Third Circuit held that, under the First and Fourteenth Amendments, the New York City Police Department’s “Muslim Surveillance Program,” in which electronic surveillance was used to “infiltrate and monitor Muslim life in and around New York City,” was unlawful. While this decision undoubtedly finds legitimacy in the aforementioned amendments, I contend that applying a modern interpretation of the Fourth Amendment—one rooted in “living constitutionalism,” or the idea that “constitutional law can and should evolve in response to changing circumstances and values”—can also prove the program’s illegality.

In Hassan v. City of New York (2015), lead plaintiff Syed Faraj Hassan and others associated with Islam testified that, since January 2002, the New York City Police Department (NYPD) used what was informally known as the “Muslim Surveillance Program” (also called “the Program”) to monitor the lives of Muslims and their businesses, mosques, organizations, and schools in New York City and neighboring cities and states. The Court of Appeals found that the plaintiffs—“persons associated with Islam who claimed to be targets of police surveillance program”—had standing to sue in federal court to “vindicate their religious-liberty and equal-protection rights” and that their claims were justified under the First and Fourteenth Amendments. It is clear why the Program, which “targeted Muslim American communities in New York, New Jersey, and beyond,” would violate the First and Fourteenth Amendments. However, employing the Fourth Amendment to assess the Program’s “sprawling and secretive human mapping and suspicionless surveillance program” may provide an additional legal foundation for the decision.

The Fourth Amendment affirms that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In short, the Fourth Amendment outlaws unreasonable searches and seizures. The NYPD’s participation in the Program, though, constitutes an unreasonable search and seizure of data on Muslims in the greater New York area via electronic surveillance.

The plaintiffs in Hassan argued that the NYPD monitored Muslims in several ways, such as by taking pictures, shooting videos, and gathering license plate information of mosque attendees. Officers also pointed surveillance cameras at mosques, which they could then control remotely. Furthermore, the plaintiffs asserted that the NYPD would send undercover cops into mosques, student organizations, businesses, and neighborhoods that it characterized as “heavily Muslim” to listen in on sermons and conversations before reporting back to their department. These surveillance methods were not solely concentrated in New York City—they extended into New Jersey, Connecticut, Pennsylvania, and other areas of New York state. In addition, the NYPD collected information on the locations of religious schools, the religious affiliations of certain public establishments, the number of businesses operated or visited by Muslims, and the names of people involved with Muslim Student Associations (MSAs) in the area. The NYPD also “compile[d] databases of new Muslim converts who [took] Arabic names, as well as Muslims [who took] names that [were] perceived to be ‘Western.’”

The plaintiffs declared that the intelligence gathered by the NYPD through the Program was compiled into many reports. Such reports included information on Newark’s Muslim population, over 20 precinct maps of Newark showing the locations of mosques and Muslim businesses and the ethnic composition of the Muslim population, and “analytical report[s] on every mosque within 100 miles of New York City.”

From this, it is obvious that the NYPD’s program was meant to target Muslims and their daily activities, indicating religious discrimination that the Court of Appeals affirmed in its ruling. However, I assert that the Program’s electronic surveillance to collect an expansive collection of data by itself is sufficient to warrant a contravention of the Fourth Amendment.

Regarding the Fourth Amendment, the Court of Appeals utilizes Justice Scalia’s point in Whren v. United States (1996) about selective enforcement of the law: “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.” While I agree with the appellate court’s reasoning, I believe that the Program’s methods of collecting people’s information, regardless of their religion, can be considered a Fourth Amendment infraction.

But first, does electronic surveillance even fall under the jurisdiction of the Fourth Amendment? In Katz v. U.S. (1967), a case involving electronic surveillance, the Supreme Court held that the Fourth Amendment protects “any place where an individual maintains a reasonable expectation of privacy.” In his concurring opinion, Justice Harlan stated that “a person has a legitimate expectation of privacy if he honestly and genuinely believes the location under surveillance is private.” Due to the separation of church and state found in the Constitution, places of worship are commonly regarded as private institutions—institutions in which a person “has a reasonable expectation of privacy.” Under this ruling, the Fourth Amendment prohibits unreasonable searches and seizures involving data collection through electronic surveillance—precisely the sort of search and seizure in which the NYPD engaged.

Now that this has been established, I will use the Fourth Amendment to provide further support for the decision in Hassan. According to the federal courts, the Fourth Amendment prohibits unreasonable searches and seizures by the government (and government agencies like police departments), but only those that are perceived as unreasonable from a legal standpoint. This is referred to as the reasonability requirement. Judges are to consider the main factors when determining whether or not a search was reasonable: the search’s infringement on a person’s Fourth Amendment rights and compelling interests that may allow for such an infringement. For an interest to be compelling, the government must use the “strict scrutiny test” to show that the interest is “important enough that it justifies infringing on a fundamental right, and [that its] infringement on rights is done in ‘the least restrictive’ or most careful way possible.” However, in Hassan, the Court of Appeals held that the “municipality’s assurance that police surveillance was justified by national-security and public-safety concerns did not satisfy its burden of producing evidence to overcome heightened scrutiny’s presumption of violation of equal protection.” Because the NYPD failed to prove that electronically surveilling Muslims was a compelling interest, the “Muslim Surveillance Program” fails to fulfill the reasonability requirement. Moreover, “least restrictive means” refers to a method that places “the least possible restriction on personal liberty and the exercise of rights.” While public safety and thus crime prevention are certainly compelling interests, the NYPD’s surveillance program is clearly not the least restrictive means possible to achieve its desired ends. This is due to its surveillance of basically all Muslims in the greater New York area, rather than just those on watchlists or things of that nature.

Though Fourth Amendment jurisprudence is beginning to incorporate electronic surveillance threats to privacy, an obstacle to this development may arise from originalists who disagree with applying the Fourth Amendment to this issue. These individuals proclaim that the “original meaning of search seems to be the ordinary meaning at the time [of the Fourth Amendment’s adoption] of ‘looking over or through’ or ‘examining by inspection’” and that an unreasonable search is only one that “violate[s] the common law rules for searches at the time of the Fourth Amendment.” However, taking into account the privacy and “search and seizures” problems that are related to electronic surveillance is crucial to upholding the protections of the Fourth Amendment. According to the Brennan Center for Justice, as cell phones, watches, cars, and other electronic devices become “smarter,” they “create detailed records about our private lives, potentially revealing not only where we have been but also our political viewpoints, consumer preferences, people with whom we have interacted, and more.” This information can be used by “law enforcement for use in investigations and prosecutions, and much of it is currently available without a warrant.” Thus, establishing legal limits to such electronic collection of data is a worthwhile endeavor to maintain the sanctity of our rights.

The idea of electronic surveillance and its potential infringement of people’s Fourth Amendment rights is one that warrants attention because, as technology continues to progress in terms of its abilities, so will the means by which data is collected. Without implementing proper legal restrictions on the use of data collection, the privacy of American citizens under the Fourth Amendment may be in danger.

The Economic Impact of Prison Labor for Incarcerated Individuals and Taxpayers

Sarah Payne

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2 Prin.L.J. 14

Introduction

The United States’ prison population is currently the second highest globally, falling closely behind China at just over 1.5 million individuals incarcerated.^[1] This means the United States accounts for approximately 25% of the world’s prison population, despite accounting for just 5% of the world’s population overall.^[2] Furthermore, the average cost of incarceration in the United States of America sits at approximately $80 billion per year for the taxpayer,^[3] while corporations within the private prison industry are estimated to bring in an estimated $374 million annually.^[4] Given the disproportionate number of incarcerated individuals in the United States of America, the private prison industry is opportunely positioned to make a profit from cheap prison labor. The labor, however, is exploitative not only to incarcerated individuals, but also to taxpayers. At play within this legal situation is the profit of corporations complicit in the prison industry, the well-being of incarcerated individuals, and the financial implications for the taxpayer. This paper offers an alternative approach to the carceral system that deprioritizes corporate profit margins to better prioritize the incarcerated community and taxpayers.

History and Previous Cases

While the Thirteenth Amendment outlawed slavery in United States, it did not eliminate the possibility of slavery does persist as a form of punishment for convicted criminals.^[5][1] Thus, despite the Thirteenth Amendment, slavery has since remained in the United States of America, in a roundabout fashion. Not only does the Thirteenth Amendment enable prison labor, but the Fair Labor Standards Act (FLSA) also enables prison labor through its definitions of ‘employees’ and ‘employers.’

In 1996, during Burleson v. the State of California, prison inmates attempted to receive federal minimum wage back-pay for work that took place within a California prison. At the conclusion of this case, the inmates did not receive the minimum wage compensation they sought, as they were not technically employees of the state according to the FLSA.^[6] To fall under the definition of “employee,” individuals must pass the economic reality test, a legal test designed to determine the status of someone’s employee-employer relationship. More specifically, an employee, under the definition of the economic reality test, is someone who “follows the usual path of an employee and is dependent upon the business which he or she serves.”^[7] Because this prison labor is penological rather than pecuniary, these incarcerated individuals did not pass the economic reality test.^[8]

In 1992, incarcerated individuals in an Arizona state prison also sought to recover minimum wages from a plasma treatment center, which held a contract with the State Department of Corrections. The inmates failed to receive minimum wage retribution as the court this time held that neither the plasma treatment center nor the Department of Corrections fell within the Fair Labor and Standards Act’s definition of an ‘employer,’ which is defined as, “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency but does not include any labor organization or anyone acting in the capacity of officer or agent of such labor organization.”^[9]

Understanding the Economic Implications

The nature of prison labor varies from institution to institution. For example, the California Penal Code requires, “of every able-bodied prisoner imprisoned in any state prison [to perform] as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections.”^[10] One firsthand account from a women’s prison details an eight-hour day participating in manual labor outside, without ample water sources or sunscreen.^[11] Another formerly incarcerated individual, Dominique Morgan, recounts his experience working as a chef while incarcerated. His workday would start at 4 am during breakfast hour, and he would work through dinner time at his facility. He made $2.25 per day and did not receive sick days, despite being diagnosed with HIV.^[12]

While subject to prison labor, incarcerated individuals within private prisons who do happen to receive pay are also subject to fees deductible from their wages. These fees include, but are not limited to, fees for room and board and other miscellaneous fees to offset the cost of incarceration. What is remarkable, however, is the fact that these fees are not a substitute for the federal funding these prisons receive. Rather, the private prisons can collect these fees in conjunction with federal funding from taxpayers.^[13] These institutions are not only exploiting incarcerated individuals as laborers; they are also pocketing money from taxpayers. This double-dipping of resources ultimately creates a profit for the private prison industry at the expense of citizens and incarcerated individuals.

In addition to these circumstances, private companies are also encouraged to utilize incarcerated individuals as laborers via tax credit.^[14] The Work Opportunity Tax Credit (WOTC) is a tax credit for employers for hiring individuals of certain demographics, such as veterans, summer youth employees, and long-term unemployment recipients; also included within the WOTC are felons.^[15] Thus, this legislation not only allows corporations to exploit incarcerated individuals with little to no wages but also incentivizes the usage of prison labor by providing tax credits to companies for using such labor. Yet again, this double-dipping of resources further increases profit margins for private prisons and corporations at the expense of exploited workers and taxpayers.

Given these two presented methods of financial profit, it is evident the exploitation of incarcerated individuals not only impacts these workers directly, but it also displaces taxpayer dollars into the hands of corporations through subtle schemes. While the exploitation of the incarcerated workers here is rather blatant, the negative impacts on the taxpayer are much more subtle[2] . Private prisons, as previously mentioned, are able to receive federal funding, which ultimately is derived from taxes. It is possible that this federal funding may be derived from the creation of new dollars within the United States; however, this production and distribution of money would still create the unintended consequence of inflation for the average citizen. Regardless, the structure of the private prison system demands a constantly laboring incarcerated population, which cannot exist without the financial support of facilities. Private companies utilizing prison labor benefit from WOTC, cheap labor, and federal funding. Incarcerated individuals within this system continuously labor; they do not receive the chance to rehabilitate or receive education, processes that are later illustrated in this paper as crucial to reducing recidivism[3] . Thus, the legal structures surrounding prison labor not only allow the demand for prison labor but also perpetuate recidivism. The taxpayer, within this system, is left indirectly funding this cycle of exploitation by nature of the prisons receiving federal funding.

Legal Argument

To address the economic concerns of the situation at hand, a three-pronged approach is presented. First, this approach uses different definitions of “employee” and “employer” than the FLSA to ensure the fair pay and treatment of working incarcerated individuals. Second, the approach disincentivizes the double-dipping behavior of corporations to partially alleviate the financial burden the current carceral system places on taxpayers. Lastly, the approach calls for the replacing of prison labor with educational opportunities that will subsequently reduce the rate of recidivism and thereby further alleviate the cost of incarceration placed upon taxpayers.

Definitions

Redefining “employee” and “employer” to comprehensively include incarcerated individuals working for corporations while in federal and private prisons is the most direct approach to addressing the economic implications of cheap prison labor. Currently, the Fair Labor Standards Act encompasses niche demographics such as child laborers, agricultural workers, service members, and politicians;^[16] however, it fails to directly encompass the demographic of incarcerated individuals. This exclusion of the prison population in the Fair Labor Standards Act is detrimental to the well-being of incarcerated individuals and taxpayers, as it facilitates the exploitation of those incarcerated. Without this comprehensive redefinition of employee and employer, there remains an incentive for mass incarceration for corporations, lobbyists, and politicians.^[17] The burden upon the taxpayer is an unintended consequence of this incentivized mass incarceration, as the carceral system, from the court system to county jails to state penitentiaries, is ultimately funded by taxes. Enforcing a minimum wage by defining prisoners as employees will lessen the appeal of prison labor for corporations as a profit-increasing tactic. This, in turn, will subsequently lessen the annual cost of incarceration that falls upon the taxpayer.

Disincentivizing Double-Dipping of Resources for Corporations to Better Prioritize a Reduction in Recidivism and Taxpayer Alleviation

It is also necessary to eliminate the ability of corporations to receive a tax credit for utilizing prison labor under the Work Opportunity Tax Credit legislation. The incentivization of this labor use 1) perpetuates the economic demand for constant availability of a prison workforce, funded by taxpayers, 2) comes at the cost of taxpayers, and 3) disincentivizes providing rehabilitation programs for incarcerated individuals before reentry into American society. These education programs may have otherwise replaced the time demand of prison labor, and research suggests they reduce recidivism.^[18] For example, one study proactive prison education significantly reduces the long-term costs of recidivism.^[19] The reinforcement of the financial benefits to corporations via prison labor not only constantly demands the presence of a prison population, but it also is directly funded by taxpayers via the WOTC. Furthermore, in a long-term model, using the prison population as laborers inhibits any sense of rehabilitation for said individuals.

Limiting a private prison’s ability to charge incarcerated individuals fees for expenses taxpayers already pay for has the potential to limit the profit margins that make prison labor preferable for corporations. Furthermore, if incarcerated workers are genuinely presented with the opportunity to establish savings, their ability to establish themselves upon reentry into society may increase. This will, in turn, reduce the likelihood of poverty-related crimes that contribute to recidivism. Research suggests there is a strong correlation between poverty and incarceration. One study illustrates how men in the bottom ten percent of the United States’ income distribution are twenty times more likely to be incarcerated between the age of thirty and forty than those in the top decile.^[20] Perhaps a more concerning revelation within this research, however, is the fact that within one year of release from prison, fewer than 20% of formerly incarcerated individuals earn more than $15,000.^[21] As a result, formerly incarcerated individuals are extremely at risk of poverty-related recidivism immediately following their reintegration into society. Overall, without the ability to receive both rehabilitative education and accrue savings, research suggests rates of recidivism starkly increase, posing another long-term financial burden upon the taxpayer yet again.

Education

Research illustrates that recidivism decreases as education increases, and among prison populations, those with no GED are the most likely to become incarcerated more than once.^[22] Furthermore, 19% of adult inmates are completely illiterate and 40% are functionally illiterate.^[23] Prioritizing literacy and a GED education for incarcerated individuals will better rehabilitate them for the demands of society upon reentry and better situate them to later secure jobs. Together, these improvements will help lower rates of recidivism. A study by RAND suggests that for every $1 spent on prison education, $4-5 of recidivism costs are saved in the initial three years after release from prison.^[24] Currently, there is a grant program established to facilitate education methods in the carceral system.^[25] Refining this grant program to prioritize the most at-risk demographics in the carceral system, those who are illiterate and without a GED, can decrease the population of the carceral system in future years. This refinement is a long-term investment that requires incarcerated individuals to forego labor[4] , but research does offer optimistic results.

Pros and Cons

The most immediate threat these law reforms pose is one to the profit margins of corporations. As these profit margins decrease, there is a possibility that this prison labor is simply outsourced to other countries by corporations for a similarly low price. Thus, labor exploitation would simply shift from the exploitation of the United States’ incarcerated population to the exploitation of foreign workers. While this outcome is not necessarily desirable, the burden placed upon the taxpayer would remain relieved. Additionally, the timeframe of the legislative changes is also a possible pitfall. Although the long-term results are worthwhile, restructuring labor within the carceral system is sure to take years. Furthermore, implementing the proposed educational reforms to reduce rates of recidivism will also take years and come with an initial price tag. However, lower rates of crime after reentry into society and reduced prison populations associated with a decline in recidivism will later offset these initial investments.

Conclusion

Given the financial appeals of prison labor, it is no surprise corporations have taken full advantage of this possible asset. However, the multimillion-dollar annual profit of the prison industry comes at the cost of the exploitation of incarcerated individuals and taxpayers. Redefining incarcerated individuals as employees in an employee-employer relationship, disincentivizing prison labor for corporations, and prioritizing education within the carceral system can address these concerns. While incarcerated individuals are often referred to as forgotten members of society, their incarceration and exploitation continue to have an impact upon all of society.

Bibliography

29 U.S.C.A. § 203, 29 USCA § 203 29 U.S.C.A. § 203 (West) § (2018).

34 U.S.C.A. § 10741, 34 USCA § 10741 34 U.S.C.A. § 10741 (West) § (2018).

Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

Center on Crime. “Education as Crime Prevention: Providing Education to Prisoners.” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

“Employment Relationship Under the Fair Labor Standards Act.” United States Department of Labor. Wage and Hour Division United States Department of Labor, March 2022. https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship#:~:text=An%20employment%20relationship%20under%20the,be%20subject%20to%20the%20Act.

Gilbreath v. Cutter Biological, Inc. 931 F.2d 1320 (9th Cir. 1991).

Hammad, Neveen. “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities.” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

Hendricks, Cindy, James E. Hendricks, and Susie Kauffman. “Literacy, Criminal Activity, and Recidivism ,” n.d.

Looney, Adam, and Nicholas Turner. “Work and Opportunity Before and After Incarceration.” Economic Studies at Brookings, March 2018.

McCormack, Simon. “Prison Labor Booms Despite High Unemployment.” HuffPost, December 10, 2012. https://www.huffpost.com/entry/prison-labor_n_2272036.

“Prison Population Total.” Prison Studies. World Prison Brief. Accessed December 8, 2022. https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All.

“Public Policy Impacts of Rand’s Correctional Education Research.” RAND. RAND Social and Economic Well-Being, n.d. https://www.rand.org/well-being/justice-policy/portfolios/correctional-education/policy-impact.html.

Rafieyan, Darius, and Cardiff Garcia. “The Uncounted Workforce.” Episode. The Indicator From Planet Money. National Public Radio, June 29, 2020. https://www.npr.org/2020/06/29/884989263/the-uncounted-workforce.

Sloan, Bob, and Mike Elk. “The Hidden History of Alec and Prison Labor.” The Nation. The Nation, June 29, 2015. https://www.thenation.com/article/archive/hidden-history-alec-and-prison-labor/.

U.S.C.A. Const. Amend. XIII, § 1, USCA CONST Amend. XIII, § 1

Wagner, Peter, and Bernadette Rabuy. “Following the Money of Mass Incarceration.” Prison Policy. Prison Policy Initiative, January 25, 2017. https://www.prisonpolicy.org/reports/money.html.

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“Work Opportunity Tax Credit.” Internal Revenue Service. Internal Revenue Service. Accessed December 8, 2022. https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit.

[1] “Prison Population Total,” Prison Studies (World Prison Brief), accessed December 8, 2022, https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All.

[2] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[3] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[4] Peter Wagner and Bernadette Rabuy, “Following the Money of Mass Incarceration,” Prison Policy (Prison Policy Initiative, January 25, 2017), https://www.prisonpolicy.org/reports/money.html.

[5] U.S.C.A. Const. Amend. XIII, § 1, USCA CONST Amend. XIII, § 1

[6] Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

[7] “Employment Relationship Under the Fair Labor Standards Act,” United States Department of Labor (Wage and Hour Division United States Department of Labor, March 2022), https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship#:~:text=An%20employment%20relationship%20under%20the,be%20subject%20to%20the%20Act.

[8] Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

[9] Gilbreath v. Cutter Biological, Inc. 931 F.2d 1320 (9th Cir. 1991).

[10] West’s Ann. Cal. Penal Code § 2700, CA PENAL § 2700.

[11] Simon McCormack, “Prison Labor Booms Despite High Unemployment” (HuffPost, December 10, 2012), https://www.huffpost.com/entry/prison-labor_n_2272036.

[12] “The Uncounted Workforce,” The Indicator From Planet Money (National Public Radio, June 29, 2020), https://www.npr.org/2020/06/29/884989263/the-uncounted-workforce.

[13] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[14] “Work Opportunity Tax Credit,” Internal Revenue Service (Internal Revenue Service), accessed December 8, 2022, https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit.

[15] “Work Opportunity Tax Credit,” Internal Revenue Service (Internal Revenue Service), accessed December 8, 2022, https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit.

[16] 29 U.S.C.A. § 203, 29 USCA § 203 29 U.S.C.A. § 203 (West) § (2018).

[17] Bob Sloan and Mike Elk, “The Hidden History of Alec and Prison Labor,” The Nation (The Nation, June 29, 2015), https://www.thenation.com/article/archive/hidden-history-alec-and-prison-labor/.

[18] Center on Crime, “Education as Crime Prevention: Providing Education to Prisoners,” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

[19] “Public Policy Impacts of Rand’s Correctional Education Research,” RAND (RAND Social and Economic Well-Being), https://www.rand.org/well-being/justice-policy/portfolios/correctional-education/policy-impact.html.

[20] Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Economic Studies at Brookings, March 2018.

[21] Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Economic Studies at Brookings, March 2018.

[22] Cindy Hendricks, James E. Hendricks, and Susie Kauffman, “Literacy, Criminal Activity, and Recidivism.”

[23] Center on Crime, “Education as Crime Prevention: Providing Education to Prisoners,” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

[24] “Public Policy Impacts of Rand’s Correctional Education Research,” RAND (RAND Social and Economic Well-Being), https://www.rand.org/well-being/justice-policy/portfolios/correctional-education/policy-impact.html.

[25] 34 U.S.C.A. § 10741, 34 USCA § 10741 34 U.S.C.A. § 10741 (West) § (2018).

The Implications of New Title IX Regulations for Institutions of Higher Education

Anna Shin ’24

The establishment of Title IX, which prohibits sex-based discrimination in schools that receive federal funding, has protected students for nearly five decades by holding educational institutions accountable for cases of sexual discrimination. Notably, Title IX has played a significant role in equity in athletics, sexual harassment and violence, and protections for transgender students.

But while this law’s foundation was built on sex equality, the specific nuances of Title IX policies have varied among the presidential administrations, most recently the Trump administration. On May 14, 2020, the ACLU and law firm Stroock & Stroock & Lavan LLP filed a lawsuit against Former Secretary of Education Betsy DeVos on behalf of four activist groups: Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools (Know Your IX v. DeVos). The lawsuit was in response to new revisions released on May 6th to existing Title IX policies (otherwise known as the “Final Rule”) for sexual harassment on college campuses set forth by the DoE. The ACLU and Stroock & Stroock & Lavan LLP have argued that colleges and universities conduct sexual misconduct cases from a higher standard than reports of discrimination based on race, national origin, disability, etc. Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, called the new rule a “double standard that is devastating for survivors of sexual harassment and assault, who are overwhelmingly women and girls.” But Secretary DeVos has stated that the new regulations will secure due process rights for both the accused and the accuser, claiming that the 2020 revisions will allow Title IX officials at colleges and universities to use either a preponderance of of the evidence or a “clear and convincing standard” to prove sexual harassment claims, thereby setting a higher burden of proof. This contrasts from the policy of the Obama administration (2011), which used a “preponderance of evidence” to determine guilt in sexual misconduct claims. This consequently led to many college males filing civil lawsuits based on the claim that they were being unjustly accused of sexual harassment.

There are several issues the ACLU claims violates the due process of sexual violence victims. Firstly, they claim that the Final Rule redefines “sexual harassment” into three distinct traits: to be “so severe, pervasive, and objectively offensive” that it denies the person equal access to educational opportunities. This arguably narrows the scope for sexual misconduct claims, because the complaint must meet all three conditions for sexual harassment to be even be applicable. The previous definition used “or” in place of “and.” Secondly, any allegations or reports of sexual misconduct can be tossed and not investigated if not reported to the “right” person, or the individual formally in charge of all Title IX-related issues. Thirdly, the alleged sexual misconduct “must have taken place during a school-sanctioned activity, building, or event in which the institution has ‘substantial control.’” This disregards locations such as off-campus apartments, study abroad programs, and field trips, all of which should still fall under the school’s jurisdiction. Fourthly, it installs a “quasi-judicial system” that allows the cross-examination of both parties, which can further retraumatize victims and discourage them from coming forward about the misconduct. Finally, the current COVID-19 pandemic has heavily impacted universities’ budgets and systems, making it difficult for them to adhere to the DoE’s August deadline to implement these revisions.

On October 20, 2020, U.S. District Court Judge Richard Bennett dismissed the case on the basis that Know Your IX was unable to prove that the Final Rule was directly reducing reports of sexual misconduct, and that it was creating more work for the organization. Other reasons discussed how the claim was arbitrary and “speculative.” Similar cases such as Women’s Student Union v. U.S. Department of Education, which made a congruent argument to the Know Your IX case except for high school students, are still ongoing. So far, none of the lawsuits filed against the Final Rule have been successful. So what does this entail for the future of the Final Rule in universities? The answer is still quite unclear, largely due to the fact that it is relatively new. Most colleges have yet to fully recover from the impacts of the COVID-19 pandemic, both financially and systematically, making it difficult to assess the true consequences of the rule. But Know Your IX and the ACLU have a promising argument — by creating blockades in sexual misconduct reporting and scope, especially during a time where almost everything was conducted within a virtual space, the Final Rule could not have come at a worse time for sexual misconduct claims to go unnoticed or ignored. Universities must continue to stay vigilant on how the implementation of the Final Rule is impacting their prosecution of sexual misconduct cases. Know Your IX v. DeVos, while in itself may not have been successful, is the necessary, groundbreaking case for future lawsuits that will continue to challenge the due process of the Final Rule.

Asian American Lawyers: Then and Now

by Rebecca Cao

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1 Prin.L.J.F. 29

Introduction

Conversations about Asian Americans have only just captured national attention as anti-Asian hate crimes have escalated amidst the COVID-19 pandemic. Within the past two years, numerous discussions about Asian American identity, stereotypes of Asians, and America’s egregious history of exclusion against Asian Americans have surfaced, and, most recently in July 2021, Illinois became the first state to require the teaching of Asian American history in public school classrooms. As an aspiring lawyer who has paid attention to and often participated in such discourse, I have especially wanted to learn more about Asian American lawyers, who I believe can further enrich and complicate our understanding of Asian Americans overall. In what context did the first Asian American lawyers emerge? Who were some of the most prominent Asian American lawyers in the past, and how have they shaped American law? What are the unique obstacles that Asian American lawyers endure today? These are just some of the questions that have long interested me, and I will attempt to answer them in this article.

While I have discovered a few sources that already examine these issues (which will be referenced later), this article will aim to provide a more cohesive narrative demonstrating the overall journey of Asian American lawyers from the 1880s to modern years. Its purpose is twofold: to briefly trace the emergence of Asian American lawyers throughout American history, and to illuminate the present conditions and challenges of Asian American lawyers today. To be clear, it is beyond the scope of this article to be comprehensive; it does not attempt to identify every single Asian American lawyer in Asian American history, and neither will it attempt to explicate every event or idea relevant to this topic. Instead, it will focus on what appears to be the most salient, recurring themes that characterize the Asian American experience in the legal field. More information about Asian American lawyers will likely be unearthed in later years, but I hope that this article will inspire more conversations about their impact and struggles in the meantime.

Asian American Lawyers Throughout American History

The first Chinese American licensed to practice law in the U.S. was Hong Yen Chang, born in Guangdong, China, who immigrated to America in 1872 as one of the 120 Chinese boys sent to study in the U.S. through the Chinese Educational Mission. Chang had arrived during a time of escalating anti-Chinese sentiment in America. One reason for such racial hostility included claims that the Chinese were inherently inferior, as demonstrated in the California Supreme Court’s 1854 ruling in People vs. Hall where Chief Justice John Murray wrote that the Chinese were “incapable of progress or intellectual development beyond a certain point, as history has shown.” As the number of Chinese immigrants working in America’s gold mines, factories, and agriculture grew, allegations from other laborers in America’s economy that the Chinese posed an economic threat further exacerbated racial tensions. Pressured by such xenophobia pervading the nation, the government eventually passed the Chinese Exclusion Act of 1882, which suspended skilled and unskilled Chinese laborers in mining from immigrating to the U.S. for ten years (and it would eventually be extended for another 10 years by the 1892 Geary Act, which also required all Chinese living in the U.S. to carry identification papers—which many observed were similar to “dog tags”—at all times or suffer deportation). When Chang sought admission to the New York State Bar Association, the state’s Supreme Court rejected him since the Exclusion Act barred him from U.S. citizenship. But after Chang pressured the Association for two years, they eventually issued him a naturalization certificate and allowed him to reapply to the bar again. He was admitted in 1887. However, Chang was not as fortunate when he later moved to California, where the state’s Supreme Court deemed that his naturalization certificate from New York was invalid and thus rejected him from the bar. Chang was never allowed to practice law in California, although thanks to petitions from groups of law school students such as the Asian Pacific American Law Students Association, he was posthumously granted admission to the state’s Bar Association 130 years later in 2015. The first Chinese American lawyer in California wouldn’t emerge until nearly four decades after the Court’s decision in Chang’s case, when You Chung Hong, a son of Chinese immigrants, passed the state’s bar in 1923. He worked to repeal the Chinese Exclusion Act of 1882 that had obstructed Chang’s admission to the bar, testified in the U.S. Senate on immigration laws, and in 1933, became the first Chinese American permitted to practice before the Supreme Court.

Alongside the Chinese Exclusion Act, the government also passed legislation thwarting South Asians from entering the U.S during this time. In 1917, the U.S. banned immigration from the entire Indian subcontinent through the Barred Zone Act. In the 1923 case, U.S. v. Bhagat Singh Thind, the Supreme Court ruled that Southeast Asians were ineligible for naturalization. An immigrant from Punjab, India, Dalip Singh Saund campaigned against these discriminatory policies. His efforts eventually resulted in Congress passing the Luce-Celler Act of 1946, which permitted more South Asians to immigrate to the U.S. and become U.S. citizens. After becoming a naturalized U.S. citizen in 1949, Saund was elected to Congress in the House of Representatives—and re-elected twice—thus becoming the first Asian American, Indian American, and first Sikh American to do so.

More Asian American lawyers emerged during and shortly after the U.S.’ participation in World War II. For example, Minoru Yasui, a Japanese American lawyer, established a practice in Portland to help Japanese Americans affected by Executive Order 9066, by which President Franklin Delano Roosevelt authorized the internment of Japanese Americans and noncitizens from Japan. Yasui also refused to evacuate to an internment camp and was consequently sentenced to a year in prison. When he was released in 1944, he practiced law in Colorado, where he advocated for the Japanese community in America to receive reparations. During this time, Fred Korematsu, a son of Japanese immigrants, was arrested for resisting his displacement to an internment camp; this incident would eventually result in Korematsu vs. U.S. (1944), where the Supreme Court upheld Executive Order 9066—but nearly four decades later in 1983, Dale Minami, an Asian American lawyer, would reopen and help overturn this decision.

Furthermore, although they are often overlooked, Asian American lawyers directly served in America’s war efforts. Herbert Choy, a graduate of Harvard Law School, served in the U.S. Army Judge Advocate General’s Corps (from 1942-1946), which “represents the legal interests of soldiers and the U.S. Army,” according to the U.S. Army Judge Advocate General’s Corps brochure. When he returned to America, he became the first Korean American in the United States admitted to the bar. Another Asian American graduate of Harvard Law School, Hiram Fong, served as Judge Advocate in the U.S. Air Force, after which he became the first Asian American U.S. Senator from 1959 to 1977 from Hawaii and the first Asian American to receive delegate votes to be nominated for the President of the United States.

Asian American lawyers also actively contributed to the social change movements that swept America in the 1960s—most notably, Patsy Mink, a third-generation Japanese American from Hawaii and graduate of University of Chicago Law School. Several years after being rejected from all jobs she applied to because of her interracial marriage, Mink became the first Asian American woman to serve in Congress when she won a seat in the U.S. House of Representatives in 1964. As a Congresswoman, Mink helped address the needs of the women’s rights movement through sponsoring the first childcare bill, in addition to passing the 1974 Women’s Educational Equity Act which allocated $30 million a year for programs in schools that promoted gender equality, improved women’s academic and job opportunities, and expunged gender stereotypes from educational curricula. She even co-wrote the Title IX law which stated that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Mink also championed educational reform more broadly as she pushed for legislation introducing bilingual education, in addition to introducing the first Early Childhood Education Act.

Asian American Lawyers in the Modern Era

The population of Asian American lawyers has grown considerably since the 2000s. According to “A Portrait of Asian Americans in the Law,” a 2017 report published by Yale Law School and the National Asian Pacific American Bar Association and compiled by Eric Chung, Samuel Dong, Xiaonan April Hu, Christine Kwon, and Goodwin Liu, “the number of Asian American lawyers has grown from 20,000 [in 2000] to 53,000 [in 2017], comprising nearly 5 percent of all lawyers nationwide.” Additionally, the report establishes that over the past three decades, the number of Asian Americans enrolled in law school has nearly quadrupled to 8,000, demonstrating the largest spike of any racial or ethnic group—and that they are more likely to attend highly ranked law schools. But it also notes that most recently in 2016, the number of Asian American students entering law school in general was the lowest in more than 20 years. The report doesn’t attribute an exact reason for such a steep decline and recommends further research into this trendline.

With respect to the numerous Asian American lawyers who are already in the field today, however, data from the report reveals that very few of them hold leadership positions in the legal profession. Of course, while Kamala Harris has become the first South Asian American Vice President, most Asian American lawyers in general struggle to become leaders. Although 7.05% of respondents in the Vault and Minority Corporate Counsel Association’s (Vault/MCCA) 2015 survey of 225 law firms were Asian American, the data indicated that only 2.09% of them had seats on executive management committees, 2.32% on partner review committees, and 3.78% on associate review committees. Moreover, few Asian Americans serve as state judges. Even in states such as Maryland and New York—both home to a significant number of Asian Americans—less than 1 percent of their state appellate or general jurisdiction trial judges were Asian American in 2014. Even fewer Asian Americans serve in supervisory positions at the federal level; the “Portrait” highlights that in 2016, there were only three Asian American United States Attorneys in office—out of all 94 available positions—with one in each of the following areas: Hawaii, Guam and the Northern Mariana Islands, and the Southern District of New York. Data from a 2014 survey in the “Portrait” also found that, out of the 2,437 elected prosecutors in the nation, only four were Asian American. Asian Americans also rarely serve in the higher ranks of academic administration at law schools. In 2013, only three Asian Americans were law deans out of the 202 in the country, and only 18 Asian Americans out of the nation’s 709 associate or vice deans.

Why, despite demonstrating an overall and significant growth of lawyers, is there such a dearth of Asian Americans working as leaders in the law? A possible answer may include the model minority myth, which stereotypes Asian Americans as hardworking and “smart,” but too passive and socially inept to hold leadership positions. Indeed, in Elisabeth Frater’s article, “Asian American Attorneys: Shattering Conventional Norms,” Reed Smith Partner Min S. Suh confirms that “there is a perception, especially in the legal community, that Asian American lawyers are not suitable for management or leadership positions due to the stereotype that Asian Americans lack the personality to influence and lead others.” Joseph J. Centeno, a partner with Philadelphia’s Obermayer Rebmann Maxwell & Hippe, further buttresses this point: he adds that “in our society, to be a leader in any industry, you have to be bold, you have to take risks, and you have to be out there and network and create relationships with people… but Asian Americans [are often seen as] not being aggressive or assertive and being meek or sometimes a geek.” In the survey featured in the “Portrait,” many Asian American lawyers indicated that, throughout their experience in the legal profession, the most common traits that they were associated with at their jobs were “quiet,” “introverted,” “passive,” and “awkward.” Few to none of them reported that they believed they were seen as “assertive,” “extroverted,” or “loud.”

The misconception of Asians as perpetual foreigners in America may also account for another reason why Asian Americans struggle to further advance in the legal field. In the “Portrait” survey, one Asian American lawyer reported that “[she’s] an immigration lawyer. When [she] go[es] to immigration court, [she’s] mistaken for the alien.” Moreover, the Western fetishization of the sexualized, “exotic” Asian woman also poses significant obstacles for female Asian American lawyers that may thwart them from further elevating their legal careers. The same immigration lawyer from the “Portrait” survey mentioned above also revealed that “when [she] go[es] to jail to visit a client, [she’s] mistaken for their girlfriend.” Another respondent in the “Portrait” survey explained that “being an Asian woman added another layer as men were often more interested in expressing themselves as romantic prospects as opposed to colleagues.”

Moving Forward

Sources confirm that Asian American lawyers have demonstrated outstanding progress since the 1880s, despite having once been barred from practicing law. Yet they continue to face significant obstacles in the profession. Although Asian American lawyers have helped shape, build, and change American law for nearly 200 years, they are still reduced to outdated, fictitious stereotypes that preclude them from becoming leaders in the field today. Now it is time for those not only in the legal field, but also the rest of America in general, to reflect on these realities and consider how we should move forward and treat our Asian American lawyers in the future to help them reach their full potential.