What History Teaches Us About “Critical Race Theory” Bans

Since the murder of George Floyd in 2020 and the mass protest movements that followed it, Americans of all colors have begun to pay renewed attention to the deep history of racial injustice in the United States and its ongoing negative effects for people of color. Majorities of Americans of all ethnic backgrounds now believe that systemic racism exists, and that society should work to address the ongoing impacts of discrimination.  

Despite this growing consensus (or perhaps because of it), right wing operatives have launched more than 600 local, state, and federal initiatives to suppress free discussions about race and racism in the nation’s schools, universities, and private businesses over the past three years. While these measures vary in their substance, many share a focus on censoring a vaguely defined set of “divisive concepts,” including the very notion that racism is systematic in nature. 

In suppressing discussion and debate about the nature of racial oppression in the U.S., right-wing leaders and operatives are drawing upon strategies first developed in the antebellum South to suppress criticism of slavery and targeting precisely the kind of speech the framers of the 13th, 14th, and 15th Amendments sought to protect after the Civil War. 

Abolition: the Original “Divisive Concept” 

Just as George Floyd’s murder and the social movements it sparked drew increased attention to racial injustice in 2020, abolitionist movements began to raise existential questions about slavery in the United States in the late 1820s and 1830s.  

A key development in abolitionist thought was David Walker’s 1829 “Appeal to the Colored Citizens of the World.” In blistering terms addressed directly to other free and enslaved Black peoples, Walker excoriated the hypocrisy of America’s failure to uphold the ideals of the Declaration of Independence (“compare your own language … with your cruelties and murders inflicted by your cruel and unmerciful fathers and yourselves on our fathers and on us”) and connected the dots between the exploitation of enslaved people and the enrichment of the nation (“The greatest riches in all America have arisen from our blood and tears”).  

Most crucially, the Appeal broke from prior anti-slavery writings by calling for the immediate abolition of slavery and for Black Americans to be treated equally within the United States, rather than the then-mainstream approach of the American Colonization Society which called for Black Americans to be gradually emancipated and resettled to other territories.  

Walker’s words caused an immediate stir across the country, and while his views were initially deemed radical, even by many Black readers and white allies, they helped to influence a new generation of advocates including Frederick Douglass and William Lloyd Garrison. In 1833, Garrison helped co-found the American Anti-Slavery Society (AASS), which took up Walker’s call for immediate and total abolition of slavery—and quickly began to supplant the American Colonization Society as the nation’s leading anti-slavery voice. By 1835, the AASS had launched a national pamphlet campaign aimed at raising the moral consciousness of white Southerners.  

Even in the deep South, Walker’s and others’ criticisms of slavery moved some to question the legitimacy, or at least the sustainability of the slave system. In 1831, in the wake of Nat Turner’s rebellion, which many linked to the Appeal, approximately 2,000 Virginians petitioned their state legislature to end slavery, with some describing the institution as a violation of “the first principles” of American democracy as well as “the immutable laws of justice and humanity.” A bill that would have gradually ended slavery in Virginia narrowly failed in the 1832 legislative session.  

The South’s Censorship Campaign 

While growing criticism of slavery moved some to question the status quo, it motivated other Southern politicians to stamp out critical conversations about slavery entirely. In 1829, shortly after the publication of Walker’s Appeal, Georgia passed a law making it a crime to instruct a person of color to read or write. Virginia and Alabama passed similar laws in 1831 and 1833. After the AASS began its 1835 mass mailing campaign directed toward white Southerners, Southern states responded by expanding the scope of censorship. In 1836, Virginia passed a law criminalizing speaking, writing, or publishing “incendiary doctrines” including the notion that people did not have the right to own slaves or that slaves had the right to rebel. The following year, Missouri’s general assembly passed a law to prohibiting “the publication, circulation, and promulgation of the abolition doctrines.” 

Southern fervor against the “incendiary doctrine” of abolition was so strong that Southern states petitioned the federal government to suppress abolitionist doctrines being sent by mail, and even called upon Northern states to take steps to suppress abolitionist speech. In practice, preserving the institution of slavery would require suppressing the free speech rights of free and enslaved people of all colors.  

After the Civil War, the framers of the revised Constitution saw abolition and free speech as inseparable virtues. As Sen. James Harlan put it, “slavery cannot exist, when its merits can be freely discussed.” John Bingham, the drafter of the 14th Amendment, drew on the experience of Southern suppression of free speech as a key argument for its passage, declaring “the American people cannot have peace, if, as in the past, States are permitted to take away freedom of speech, and to condemn men, as felons, to the penitentiary for teaching their fellow men.” In their eyes, defending the rights of all Americans would require being able to speak freely and openly on the most pressing injustices facing the nation.  

Today’s Battle for Free Discourse on Racial Justice  

Today’s efforts to limit free discourse and education about the role of race in American history bear striking parallels to the slaveowners' efforts to outlaw dissent and maintain ignorance among populations they desired to control. Current measures targeting “divisive concepts” might as easily apply to some of the rhetoric that the abolitionists used to rally their audiences against slavery.  

Teaching William Lloyd Garrison’s famous assertion that the Constitution was a “covenant with hell” (due to provisions like the Three-Fifths compromise which protected slavery) would arguably run afoul of new Iowa standards censoring the concept that the United States is “systematically racist.” Similarly, teaching the abolitionists' broadsides against slaveowners might violate new Tennessee standards prohibiting “division between or resentment of... a social class.”  

Unfortunately, due to the inherent vagueness of these standards and the consequences of violating them, many educators are now afraid to speak out on some of the most important topics of our times—according to a recent national survey of educators, nearly 1 in 4 educators have altered or moderated their lesson plans for fear of broaching topics that parents or officials might deem controversial. 

Free speech remains a key tool in the ongoing struggle for true equality. As history informs us, the stigmatization of “divisive concepts” is too often a tool for suppressing dissent and reinforcing unfair power structures. Just as slavery could not exist when discussed freely, critical education and debate about current forms of exclusion and exploitation is one of the surest tools in our continued liberation.  

There is More Work to Be Done to Eliminate Oppressive Child Labor

This piece is the second in a month-long blog series that celebrates Labor History Month and examines how the labor movement’s past struggles and victories can inform the present fight for workers’ rights.

“[I]f there is any matter upon which civilized countries have agreed…it is the evil of premature and excessive child labor." - Justice Oliver Wendell Holmes Jr.

Child labor has long been a source of exploitation, injury, and death among youth in the United States. Where it hasn’t caused physical or psychological harm, it has kept children from being educated and limited their future potential. Many assume that the scourge of child labor is a relic of the past, but the exploitation continues, particularly in the wake of pandemic-related labor shortages, and particularly among children of low-income and migrant families.

In the early 20th century, Congressional efforts to protect children from excessive and harmful labor were thwarted by the Supreme Court. Congress responded by passing an amendment to the Constitution to empower the federal government to regulate in this area. The fact that the Child Labor Amendment (CLA) has not been ratified by enough states illustrates the challenges commonly faced when government seeks to protect children — strong deference to states’ and parents’ rights and the outsized influence of business interests in our political system.

Today, child labor is subject to regulation by both federal and state law. However, the existing regulatory framework has proven to be inadequate. Regulations include exceptions and loopholes, and enforcement is insufficient. Recent reports reveal children as young as twelve working long hours in dangerous places such as factories, tobacco fields, and meat-processing facilities, often in violation of federal law. For example, in a 2022 brief filed by the U.S. Department of Labor in support of an injunction against Packer’s Sanitation Services, the Department reveals:

  • children as young as thirteen working overnight shifts, falling asleep in class and missing school as a result
  • children suffering serious chemical burns from using chemical cleaners
  • children working on a slaughterhouse “kill floor” cleaning heavy, dangerous machinery, including head-splitters, meat pullers, skinners, and bandsaws.

At the same time, several states have begun to roll back their existing child labor laws. With the threatened weakening of state protections and the inadequacy of federal regulation, there is renewed interest in completing the ratification of the CLA. What seemed like a largely symbolic effort just a few years ago may have far greater significance in our modern society than previously assumed.

The Need for an Amendment

In 1924, Congress passed the CLA and submitted it to the States for ratification. The text of the CLA was straightforward, requiring nothing more than permitting Congress the authority to regulate child labor.

Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

Thus, the CLA would allow Congress to set a minimum floor of protection, with States remaining free to enact stronger protective regulations.

Predating the proposed Amendment, many states had enacted their own child labor protections. However, the laws varied among the states, allowing businesses to avoid those with stricter regulation, and enforcement was consistently lacking.

In 1916, the federal government attempted to regulate child labor, with Congress passing the Keating-Owen Child Labor Act, banning the sale of products derived from child labor. The U.S. Supreme Court struck down the law, finding it beyond Congress’s authority to regulate interstate commerce. Congress soon tried again, imposing a tax on profits earned on goods produced by child labor. This provision met a similar fate in the Court.

As Congress struggled to regulate child labor, an increasing number of young children were working excessive hours under hazardous conditions. As the Chief of the Children’s Bureau noted  in 1924, children continued to labor in steel mills, garment industry sweatshops, and even coal mines. In some areas of the country, as many as a quarter of all children ages 10–15 were at work in these and other occupations. With federal efforts stymied by the Supreme Court, an endorsement by the states to empower Congress to regulate seemed necessary. Moreover, several Constitutional amendments had recently been ratified, in relatively short order. The time seemed ripe to utilize this strategy in the interest of children.

The Stalling of the Amendment

When Congress passed the CLA in 1924, it was typical for state legislatures to respond positively and quickly to new amendments, providing few challenges to ratification. However, the CLA received a colder response from the states than expected. Industries that relied on child labor, including the textile industry and agriculture, bolstered the opposition. These interests successfully touted state’s rights and parental rights, stoking fear regarding federal government intrusion into something as integral to family and local communities as labor. The broad language of the amendment did nothing to quell that concern; however, broad language was necessary to overcome the limitations previously imposed by the Court.

The CLA ultimately garnered support in only 28 of the 36 states required for ratification. Continued efforts in support of the Amendment diminished following enactment of the federal Fair Labor Standards Act (FLSA) in 1938, which included the prohibition of “oppressive child labor.” The FLSA was challenged in the Supreme Court, as previous legislation had been, but this time Congress prevailed.

The FLSA and its regulations generally prohibit employment of youth under 16, except by parent or guardian, and the employment of youth under 18 in any hazardous work. Youth ages 14 and 15 can work outside school hours under certain conditions and subject to time limitations, but are prohibited from engaging in manufacturing or hazardous work. Youth under 14 can only work jobs exempt from the Act, such as paper delivery or babysitting.

There are looser standards under the FLSA with regard to agricultural employment, allowing minors 16 and older to perform any farm job at any time, even if considered hazardous. Children as young as 12 may work on a farm outside school hours with parental consent. Children of any age may be employed by their parent or guardian at any time, in any work activity, on a farm owned by the parent or guardian.

These provisions of the FLSA have provided the framework of child labor regulation for generations of children, largely relegating the CLA to the annals of history—until recently.

A Renewed Effort to Ratify the Child Labor Amendment

The FLSA has not been a panacea. Its permissive standards related to agriculture have allowed children to work in environments detrimental to their health without any legal protections. Enforcement of the protections that do exist is challenging, with an insufficient number of federal inspectors engaged in monitoring and investigating. Even so, the Department of Labor reported an increase of 283% in the number of children employed in violation of child labor laws between 2015 and 2022. It is understood that many more violations occur that never come to the attention of the Department. When violations are identified, penalties are often minimal and unlikely to disincentivize employers from hiring young workers.

Even as violations of federal child labor laws increase, there is a trend among mostly conservative states to loosen their own child labor regulations. In Arkansas, a recently enacted law eliminates age verification requirements for employers. In Iowa, a bill was introduced to allow 14 and 15-year-olds to work in meat coolers and to protect employers from civil liability for injury, sickness, or death while engaged in work-based learning. A Minnesota bill would allow youth 16 and up to work in construction. Several other states have proposed extending work hours for youth and lowering the minimum age for workers in certain sectors.

In light of these developments, advocates have renewed the effort to ratify the Child Labor Amendment. Although the effort stalled in 1937, the CLA is still officially pending and remains only ten states short of the required number of states to ratify. Some states, including New York, Rhode Island, Hawaii, and Nebraska, have recently introduced resolutions to ratify the CLA. Most recently, the Minnesota legislature introduced HF 3275 on April 20, 2023, reaffirming its ratification of the Amendment.

The suffering of children we are witnessing today is reminiscent of what led Congress to pass the Child Labor Amendment almost one hundred years ago. Although ratification may seem unnecessary in light of the FLSA, this legislation passed eighty-five years ago may not be capable of providing critical protection for children today. Ratification of the CLA could pave the way for more meaningful and effective federal action as states threaten to prioritize special interests over children. Even if the effort is viewed as largely symbolic, it would be a powerful and historically significant statement of this nation’s commitment to children’s rights.

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Jessica K. Heldman is the Fellmeth-Peterson Associate Professor in Child Rights at the University of San Diego School of Law.

Labor’s Past and Future: The New Deal Order, the Neoliberal Order, and Beyond

This piece is the first in a month-long blog series that celebrates Labor History Month and examines how the labor movement’s past struggles and victories can inform the present fight for workers’ rights.

Just after announcing his reelection campaign, President Biden’s first address was to the North America’s Building Trades Unions Legislative Conference. Biden called himself “the most pro-union president in American history,” telling the assembled crowd that he sees the country “through the eyes of the working people I grew up with … through the eyes of people like you.”

The announcement suggests the possibility that Biden might center labor in his reelection campaign. The labor movement and workers’ rights were once at the center of the American political and legal system. However, as the neoliberal order came into shape over the past half-century, labor issues have receded. Today, we are witnessing new and exciting forms of worker mobilization, and as progressives frame a strategy for moving beyond neoliberalism, a vision fusing work and care may be a promising path forward.

Labor Primacy in the New Deal

In the late nineteenth century, on the heels of the Civil War and with the Industrial Revolution roaring, the “labor question” was a core part of American political and legal discourse. The labor movement, intellectuals, and political leaders struggled with the implications of a society increasingly composed of workers in firms and this reality’s implications for democracy, republican values, and freedom.

Conflicts over labor and law’s role in labor relations evolved throughout the Progressive Era and into the New Deal. Then, labor issues came to the center of a broad constitutional discourse. Labor organizations and a host of other social movement actors worked successfully to put into place a “worker’s constitution,” composed of the National Labor Relations Act, Social Security Act, and Fair Labor Standards Act. These three statutes redefined economic freedom for workers around security and sought to entrench worker security in the constitutional fabric.

The New Deal was defined by its labor primacy—by its centering of labor in the efforts to build an “economic constitutional order.” Indeed, when envisioning building an economic constitutional order in 1932, FDR placed at its foundations the “right to make a comfortable living” and right to security when work dried up or injuries occurred on the job. Of course, the New Deal was about so much more; it involved, among other things, significant legislative achievements involving banking and securities, the environment, and public works. But the era’s fiercest social and political mobilizations were about work and workers. And those mobilizations helped to frame and personalize the problems of economic power that animated the New Deal transformation.

The New Deal also had significant limits. They include the ways its policies baked in patterns of exclusion along the lines of race and gender and failed to protect domestic and agricultural workers. New Deal policies brought stability and security for many workers, but also left many behind.

Labor’s Decline & the Neoliberalism of the Left

The New Deal order ultimately ceded to the neoliberal order, and the decline of labor primacy looms large in that transition. In the 1970s, neoliberalism—with its focus on reducing the power of government in society and shifting power (and government solicitude) to markets—began to take hold in the United States. Many factors made its rise possible, including currents in international affairs, the economic challenges of the 1970s, and the unraveling of the New Deal coalition around civil rights issues. But the rise of neoliberalism is also a story about labor, Democrats, and the left.

Gary Gerstle’s recent book, The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era, outlines various ways—including surprising ones—that Democrats and the left contributed to the rise of neoliberalism. Gerstle argues that the neoliberal shift was facilitated by Ralph Nader and Jimmy Carter’s presidency. Nader, who had significant influence in the Carter presidency, shifted the terrain from workers to consumers, and framed as evils both corporate and governmental power, undermining New Deal faith in the affirmative power of government. President Carter, torn between New Dealers and deregulatory forces within his own ranks, began a path of deregulation that would continue strongly not only in the Reagan presidency but also the Clinton presidency.

For Gerstle, too, the fall of the Soviet Union features in the rise of neoliberalism and decline of labor. “The fear of communism,” he writes, “made possible the class compromise between capital and labor that underwrote the New Deal order,” and the “collapse of communism … cleared the way of capitalism’s most ardent opponent.” As a result, the need for compromise with working people dissipated.

Across these examples, a connecting thread is that a political order characterized by its labor primacy shifted to one where labor was decentered. Along the way, faith in government and its ability to reshape economic power relationships and provide for the security of workers was also shaken.

Towards the Future: Fusing Work and Care

The question of what will replace neoliberalism—if the neoliberal era is coming to an end or has ended—is on the minds of many progressives. The future of labor will surely center in that conversation. A new political order, however, would have in its sights so much more, including climate change, voter suppression and disenfranchisement, student debt, childcare and healthcare, the power of big tech, and mass incarceration.

Gerstle’s book, however, reminds us that a political order is much more than an arrangement of policies and electoral victories; it also grows from and is sustained by a vision that reaches people where they are, drawing from the stuff of their lives to demonstrate the pitfalls of the old order and the promise of a new one. Progressives and New Dealers spoke to the insecurity that people felt on the heels of the Industrial Revolution and Great Depression; they promised that government could tame markets and provide security for workers. Neoliberals, including forces such as Ronald Reagan and Ayn Rand, offered those facing a growing bureaucratic state an ecstatic vision of freedom—of being unbound, spontaneous, innovative, and unconstrained. The idea of freedom as throwing off restraint also resounded with the “new Left” and its critiques of “the system.” As with the rise of neoliberalism, its replacement—to the extent there is one—will likely arise from articulating what neoliberalism robs and what a new order can bring or restore.

Today, in charting such a path forward beyond neoliberalism, it would be a mistake to return to a strategy of pure labor primacy. As that strategy developed in the New Deal, it focused too much on the workplace as a unit of emphasis and linked too many goods—including healthcare—to that unit. But this does not mean that it would be wise to decenter labor, either. Instead, a promising path forward may be articulating a progressive vision fusing labor and care.

At the most basic level, these things hit home. So many of us spend our lives primarily engaged in work and care. A progressive vision centering these core life activities can meet people where they are and offer an opportunity to think about these activities and their relationship in broader and more inclusive ways. Such a vision might address the exclusion of housework and caregiving from how we understand the economy. And it might offer opportunities for the focus on labor to be expanded beyond its narrow historical lens. As an example, workers are increasingly “bargaining for the common good,” allying with other organizations to expand the sphere of bargaining to encompass broader policy and community issues, including healthcare, student nutrition, racial justice, and immigration issues. A progressive politics centering work and care thus provides an opportunity to think about how we define and support these endeavors and how we can engage in acts of solidarity and countervailing power to give people the security for which so many yearn.

Centering labor and care also holds the possibility of reaching and mobilizing people worn out by life under the neoliberal order. Neoliberalism affects people’s ability to work, care, and exist together securely. It takes the public spaces where people might gather, converting them for private gain. And it makes other spaces ones where people must bear sometimes maddening insecurity: where paying for childcare or elder care seems impossible; where family picnics go on the credit card; where job insecurity makes keeping the family afloat all the more difficult, while long hours take away time with loved ones; where an education brings with it debt that weighs heavily on young lives; where healthcare decisions pinch in painful ways; where the carceral state tears people apart; and so much more. As a society, we are impoverished by neoliberalism.

A progressive future might be sustained by a rejuvenated vision of security—of being together with a good measure of stability, being supported and healthy as we work and care, and doing so in a system that values human flourishing in engaging in these core life activities. A vision of labor and care is less ecstatic than the vision of freedom that neoliberals put forward, but potentially more cathartic, more attuned to present-day challenges and needs.

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Luke Norris is an Associate Professor of Law at the University of Richmond School of Law.

Racial Justice Depends on Nixing the Blue Slip

When a single district court judge in Texas is able to threaten access to abortion medication across the United States, the need for diverse, progressive judges who will stand up for our rights at all levels of the federal courts cannot be clearer or more urgent. 

But while President Biden and Senate Democrats have made considerable progress diversifying the federal judiciary over the past two years, it is still far too easy for individual senators acting in bad faith to derail diverse nominees—as Senator Cindy Hyde-Smith did last week when she announced that she would not return her blue slip[i] for Scott Colom, a Black nominee for the federal bench in Mississippi.  

Illinois Sen. Dick Durbin, the current chair of the Senate Judiciary Committee, has expressed openness to setting aside blue slips “if there’s a case that clearly demonstrates a disregard for a nominees’ qualifications because of race, gender or sexual orientation,” but otherwise defended the tradition. 

However, the sad reality is that the modern blue slip tradition was intentionally designed to provide cover for racist opposition to judges, and, over the past 60 years, has been systemically applied against Black nominees, and other candidates from historically oppressed groups.  

While blue slips have been used to solicit senators’ input on judges since 1917, the modern tradition of using blue slips to block nominations arose in the context of massive resistance to federal enforcement of civil rights and Black equality in the South. When the Supreme Court issued its landmark decision to integrate American schools in Brown v. Board of Education, Mississippi Senator James Eastland declared, “the South will not abide by nor obey this . . . decision.”  

When Eastland became Senate Judiciary Chair in 1956 (two years after the Brown ruling), he dramatically strengthened the ability of individual senators to block judicial nominations to prevent integrationist judges from being confirmed to federal courts in the South. With the acquiescence of federal district judges, many Southern states were able to resist integration until the late 1960s.  

Since Eastland’s chairship, the Senate has, to varying degrees, continued his tradition of deferring to home state senators on judicial nominations—a tradition with devastating impacts on judicial diversity throughout the country.  

In Louisiana, despite Black people making up 33 percent of the population, only 2 of the state's 18 active federal district court judges are Black (11 percent). In Alabama, although Black people make up to 27 percent of the population, only 1 of the state’s 12 active district court judges is Black (8 percent). In South Carolina, where Black people make up 27 percent of the population, only 1 of the state’s 9 active district court judges is Black (11 percent).  

To this day, the blue slip tradition disproportionately cuts against qualified nominees from underrepresented groups. During the Obama administration, 17 nominees were denied hearings because Republican senators refused to return their blue slips—of that number all 17 were women and 12 were nominees of color.   

Last year, Wisconsin Republican Sen. Ron Johnson blocked the nomination of Judge Pocan, in a decision that many believe was linked to Judge Pocan being an openly gay man and Sen. Johnson’s history of opposition to gay rights. Sen. Hyde’s decision to block Scott Colom, a well-qualified Black judge, is the latest in the long history of abuse of the blue slip.  

As it has in the past, the blue slip threatens to deprive women, people of color and other underrepresented groups of federal judges who reflect their lived experience, skewing the judiciary and the law toward straight, white, male perspectives.  

In the 2022 midterms, in the wake of the Supreme Court’s attack on reproductive rights, progressive voters mobilized to preserve Democrats’ majority in the Senate and the opportunity to fill judicial vacancies throughout the country with diverse, progressive candidates. Sen. Durbin should take all necessary measures to do so—starting with eliminating blue slips.  

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[i] The “blue slip” refers to actual blue slips of paper that senators return to the Senate Judiciary Committee to signal approval for candidates nominated to district court vacancies in their home states. By refusing to return their blue slip a single senator can stop the confirmation process in its tracks. Crucially, a senator does not have to explain their opposition or justify it with objective criteria.

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Taonga Leslie is Director of Policy and Program for Racial Justice at ACS.

Secrets & Suspicionless Policing: A Fundamentally Anti-Democratic Mix

Years of human rights work taught me that democracy thrives only where formal legal guidelines both enable and restrain government power.  The constitutional regulation of police investigation makes clear our shared commitment to restraint in this sphere. The Fourth Amendment simultaneously upholds the value of transparent police access to evidence in facilitating investigations and the important check on that access that warrants—based on actual evidence—play. These dual principles help maintain a reasonable balance of power.

By default, police searches that invade our reasonable expectations of privacy must be based on probable cause, which in turn requires sufficient evidence to convince a reasonable person that evidence of a crime is likely to be found.  Such restraints form a necessary precondition to a healthy democracy.

Police investigation without individualized suspicion or particularized evidence necessarily begins outside these recognized bounds of reasonable investigation. The Supreme Court determined that the Fourth Amendment permits these searches only so long as they are reasonably necessary to further important law-enforcement or regulatory objectives.

The American Law Institute’s recently approved Principles of the Law: Policing (ALI Principles) dedicate an entire chapter, Chapter 5, to special concerns that arise in policing that takes place in the absence of individualized suspicion. Chapter 5’s third principle emphasizes that suspicionless policing activities should be authorized only “when there is a sound basis for believing that they will accomplish an important law-enforcement or regulatory objective” (§5.03) and that the term of any authorization should be finite (§5.02(f)).

New Jersey’s Regional Operations Intelligence Center’s (NJ ROIC) operates out of the state’s Office of Homeland Security and Preparedness, a cabinet-level agency created by executive order in 2006.  It has grown to approximately 100 staff members. NJ ROIC’s pervasive invisible security and surveillance network, as documented in Rutgers School of Law’s Center for Security, Race, and Right’s (CSRR) new report New Jersey’s Secret State Intelligence System, operates in this exceptional space seemingly without written objectives or clear end dates.

NJ ROIC originally emerged to enhance inter-agency cooperation and protect national security in the wake of 9/11. These early ambitions gave way to networked policing of low-level drug offenders and parole violators through mass warrants sweeps engaging local, state, and federal law enforcement agencies. The racist impact of this kind of policing has been documented again and again across the country.  The ALI Principles caution that suspicionless policing should not be permitted to exceed the scope of the identified law-enforcement or regulatory objective because doing so undermines the legitimacy of law-enforcement agencies (§5.06).

Panoptical surveillance like the sort conducted under NJ ROIC’s auspices necessarily infringes our shared expectations of privacy, and potentially enables unchecked and uncheckable government overreach. These are precisely the dangers the Supreme Court sought to minimize by imposing limits on their use.  I saw the costs of unchecked government power too clearly in my human rights work where courts lacked the power to enforce the rule of law against a strong executive with powerful police.

My clients, university students, endured months in jail even after the court ordered them released. The students had been charged on very thin evidence with organizing and supporting a violent attack.  They were caught in a general sweep of members from one of the student council alliances.  We see similar risks in this country as data-intensive surveillance practices, including data collection, predictive analytics, and surveillance, enhance the power of the executive branch without judicial oversight or authority.

Written public policies can stand in for individualized suspicion and limit the scope and purpose of suspicionless surveillance programs.  Policy development can even provide an opportunity for democratic engagement and richer vetting of the palpable threat to privacy surveillance systems pose. On the other hand, secrecy over the scope and implementation of surveillance programs preclude oversight, restraint, or public participation.

The CSRR report demonstrates that New Jersey has chosen secrecy over transparency or democratic engagement.  CSRR undertook extensive and unsuccessful efforts to obtain and review NJ ROIC’s governing policies.  The New Jersey Open Public Records Act proved almost entirely useless as a tool of engagement.

State leaders would do well to follow the modest proposals advanced by CSRR, proposals that balance government interests in safety and security with the need for public review and clear boundaries that limit the reach and ensure neutral criteria for engagement.  These include holding legislative hearings, appointing an ombudsman to oversee the fusion center, and engaging the public to participate in this important discussion.  Legislative hearings provide a forum at which to examine the NJ ROIC policies, practices, and procedures through a transparent process. This process should include opportunities for public participation.  An ombudsman serves as a neutral insider, able to advance public understanding of the impact of these NJ ROIC policies and practices on civil liberties.  Public engagement can bring firsthand knowledge of the experience of being policed and surveilled in this manner. Reforms that reject secrecy and welcome written objective-limited guidelines can start to bring NJ ROIC back into the realm of democratic restraint.

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Catherine M. Grosso is a Professor of Law at Michigan State University.

 

 

 

We Are All Transgender Now: On Resisting Tyranny

“Transgenderism must be eradicated from public life entirely–the whole preposterous ideology, at every level."

                                                                    – Michael Knowles, CPAC conference, March 2023

Daily Wire commentator Michael Knowles’ CPAC speech, which went uncondemned by CPAC and GOP conservatives, amplified the wave of violent transphobia yet again running through state legislatures. Hundreds of bills–under consideration, and already signed into law–bolster Knowles’ call to “eradicate” transgender people by denying healthcare to minors, defining transgender people out of legal existence, and excluding them from bathrooms, curriculum, school discussions, sports, and, as Knowles demanded, public life. Entirely.

“Anti-transgenderists” claim they’re not calling for the eradication of people, but rather of an ideology. That’s a preposterous level of gaslighting. Being transgender is not an “ism” or a choice; it is a fact. If an absolute gender binary established at birth is the only option, and nothing else is acceptable (“all or nothing”), transgender people–and intersex people–cannot exist in public life.

As of March 30, nineteen states already exclude trans youth from playing sports. Nine states prohibit evidence-based, best-practice health care for trans youth; bans await a governor’s signature in four additional states, with more bills sailing through committees in legislatures daily. Nearly all of these bans involve forcible detransition, removing youth from established courses of medical care, with unknown but predictably catastrophic results. Their doctors are put in the impossible position of committing malpractice or violating state law. Some states are experimenting with provisions that alter child custody arrangements to penalize affirming parents. In its briefs for the PFLAG v. Abbott case ongoing in state court, Texas makes the ugly claim that the threat of removing trans children from affirming homes does no harm. Seven states prohibit discussion of LGBTQ identity or issues in classrooms; in five additional states, parents can opt their children out of any such discussions. In “Don’t Say Gay” states, the presence of LGBTQ youth and those with LGBTQ families is studiously ignored. “Parental rights,” it turns out, does not include “affirming parents.”

For reasons including stress, discrimination, ostracism, parental rejection, and hostile school environments, trans youth already have some of the worst mental health in the country. The growing tide of hate is making it worse. According to the CDC, in 2021, almost 70% of LGBTQ students were persistently sad or hopeless during the year and more than 50% had poor mental health during the 30 days prior to the survey. Almost 25% had attempted suicide during the prior year. Amidst a torrent of state laws essentially characterizing discussion of their identities as prurient and obscene, the continuing crisis of poor LGBTQ mental health and increasing suicidality seems poised, if anything, to get significantly worse. A 2022 survey by the Trevor Project found that 93% of transgender and nonbinary youth reported worrying about trans people being denied access to gender-affirming medical care because of the legislative onslaught. Almost half of trans youth seriously considered suicide within the past year. Exactly which children is it that the GOP claims to “protect”?

The call to eradicate a group of people and persecute children of specific identities would be utterly intolerable in 2023 if it targeted any other group. The use of this vulnerable community as a wedge to drive religious authoritarianism and fascism further into American government, civil society, and public life is an existential threat to us all–one that will not stop here.

What does that mean for ACS members as progressive constitutional lawyers? It bears repeating that most, if not all, of these laws are unconstitutional. For example, the gender-affirming care bans specifically single out only trans youth, leaving treatments intact for other youth in need of them. In upholding a preliminary injunction of a similar Arkansas law, the Eighth Circuit found this distinction unconstitutional because it discriminates on the basis of sex and prohibits standard-of-care medical practice without an “exceedingly persuasive” justification. Brandt v. Rutledge, 47 F.4th 661, 669 (8th Cir. 2022) (“Because the minor's sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.”). An Alabama federal court similarly enjoined a law prohibiting healthcare for gender dysphoria, finding that it creates a sex-based classification and threatens harm to transgender youth without sufficient justification. Eknes-Tucker v. Marshall, 2:22-cv-184-LCB, at *21 (M.D. Ala. May 13, 2022) (“prohibits transgender minors-and only transgender minors-from taking transitioning medications due to their gender nonconformity. [...] The Act therefore constitutes a sex-based classification for purposes of the Fourteenth Amendment.”).

But our legal community cannot and must not be content with a line of argument dependent on court rulings. These anti-transgender and anti-gay bills and laws, and the rhetoric that backs them, are a clear and present danger not only to LGBTQ youth, but to American democracy and fundamental human rights. Law must serve human values, as Peter Rubin, a founder of ACS, said. As constitutional, civil rights, and human rights lawyers, we prioritize the inherent dignity and worth of all people. If that means anything, it means insistence that no person be excluded from the circle of public life. That must be a core ethic of our legal practice. If we allow the exclusion of some people via invidious discrimination, we open the floodgates for the exclusion of many–really, anyone deemed unacceptable to the authoritarian movement that now threatens our democracy.

How should ACS lawyers orient to this crisis? Some suggestions grounded in Timothy Snyder’s On Tyranny:

  1. Do not comply–“remember professional ethics.”

Many of the people who ran Hitler’s machinery of death were lawyers following orders. American slavery would not have been possible had lawyers refused to facilitate the machinery of human trafficking. In our own day, if we lawyers refuse to comply with laws and orders and procedures that run counter to our professional ethics by refusing to prosecute or sue people who disregard these unjust and cruel laws, we can disable the fascism that continues to gain purchase. If we all refuse to comply, these laws must fail.

For a real-world example, check out the continuing filibuster in Nebraska, where a small group of senators is shutting down the legislative session in protest of LB 574, a draconian gender-affirming care ban. Co-leader Senator Megan Hunt revealed she has a trans child and then defied the legislative majority: “You don’t get that this session is over.”

That is how to refuse compliance. Ground that refusal in professional ethics. For starters, ABA Model Rule of Professional Conduct 8.4 defines engaging in harassment or discrimination on the basis of gender identity in conduct related to the practice of law as professional misconduct. The Rule excludes legitimate advice or advocacy. Ask yourself whether legal services that support the targeting of a vulnerable population of youth for exclusion from society is a form of legitimate advice or advocacy. You already know the answer.

    2. "Be kind to our language” and “believe in truth.”

The use of slurs like “groomer” and “pedophile” to refer to pediatricians providing gender affirming care, “child abuse” to describe parents facilitating best-practice medical care for their children, and “transgenderism” or “gender ideology” to split transgender people from their inherent identity tortures the ordinary meanings of words. We can all refuse to use the heated rhetoric that surrounds these debates and find our own ways to express ideas. “Do not waver into language. Do not waver in it.” –Seamus Heaney

In line with that, we can insist on facts and reality by refusing to align with those who reject expertise, science, and credentials as meaningless. Instead, align with the evidence-based advocacy of literally every large professional medical association in the United States, along with psychiatric, psychological, nursing, and social work professional associations. And recognize the twisting of words and the rejection of facts and expertise for the generalized and serious threats that they are. “Post-truth is pre-fascism.” –Timothy Snyder

   3. "Be calm when the unthinkable arrives."

Few of us likely foresaw that the United States could revert to an era when an entire category of persons would find themselves bereft of core legal rights and even legal existence. Yet this is the future we have to contemplate in many states. A transgender person living in a state where using the restroom corresponding to their identity can be a felony cannot safely participate in public life. An adult transgender man who is legally required to identify as the gender on his birth certificate has been deprived of authentic legal existence. A transgender person who cannot legally access appropriate health care, or who is removed from a prior course of care, has been denied access to fundamentally necessary health care for no reason other than animus. If it can happen to transgender people, it can happen to anyone.

The manufactured crisis–the Reichstag fire–that Snyder characterizes as the “unthinkable” turns out to be a transgender youth’s request for inclusion and peaceful existence. For “anti-transgenderism” advocates, acquiescence would be apocalyptic, requiring a denial of reality itself, and must be resisted at all costs. Hence a line in the sand: us and them. Or as right-wing pundit and self-proclaimed “theocratic fascist” Matt Walsh would have it: “I came to the conclusion years ago that the trans movement is the greatest evil our country faces.” Enter the eradicationists.

This is a test. So is the denial of abortion care without exception, regardless of risk to life. The unthinkable is already here; the question for us is whether we have the courage to recognize it as such, and whether and how we respond.

Remember that law serves human values. Remember that all people have inherent dignity. Be prepared, be clear, be strong. This is not the beginning, and it is far from the end. Don’t just resist. Fight back.

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Mary Kelly Persyn is the Founder and Principal of Persyn Law and Policy.