Fulton v. Philadelphia: A Masterpiece of an Opinion?

Fulton v. Philadelphia could have created a wide-ranging right to discriminate. But it didn’t. LGBTQ people are still protected under antidiscrimination law. Nor did the Court accept the invitation to overturn thirty years of free exercise precedent and grant religious institutions exemption from law. But the opinion licenses discrimination in foster care and portends a revolution soon to come.

Shades of Masterpiece

Three years ago, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case pitting the Free Exercise Clause against LGBTQ equality. Justice Anthony Kennedy, the architect of the major gay rights cases, was on the Court. There was hope for a clear statement that the First Amendment does not authorize LGBTQ discrimination any more than it does race and sex discrimination. Instead, the Court concluded that remarks by Colorado’s civil rights commissioners signaled unconstitutional animus against the religious baker. And, so, Masterpiece was largely confined to its facts.

Fulton v. Philadelphia initially seems cut from the same cloth. Again, the religious objector prevailed on narrow, fact-specific grounds. This time, the dispute revolved around a contract between the city of Philadelphia and Catholic Social Services (CSS) to certify families for the city’s foster care system. CSS had agreed to the city’s nondiscrimination policy, but then proved unwilling to certify some LGBTQ families based on its religious beliefs. After the city terminated the contract, the agency claimed that it was entitled to an exemption under the Free Exercise Clause of the First Amendment.

The justices unanimously agreed. Chief Justice Roberts wrote: “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.“

Ordinarily, courts are supposed to defer to such nondiscrimination requirements if they are “neutral and generally applicable.” But, here, the Court said, there was a formal system of “individualized exemptions”—which the city had never granted—that meant the rule against discrimination was not generally applicable. In what Justice Gorsuch calls “a dizzying series of maneuvers,” the Court read the city’s “sole discretion” to grant an exemption from nondiscrimination in child placement into a different provision prohibiting discrimination when families are certified.

Strict scrutiny then made short work of the contract. The city’s interest in “equal treatment of prospective foster parents and foster children” was “a weighty one,” but not sufficient to require CSS to provide equal treatment.

A Brief Reprieve for Employment Division v. Smith

With this short majority opinion, the Court avoided the big questions at the intersection of religious freedom and LGBTQ equality. Catholic Social Services had asked the Supreme Court to overturn Employment Division v. Smith, a 1990 case authored by Justice Scalia that itself deviated from several decades of free exercise precedent. Under Smith, religious objectors are not entitled to exemptions from neutral and generally applicable laws. Smith has endured sustained criticism from the left and the right.

In Fulton, six justices chose not to revisit Smith. But Justice Barrett, joined by Justice Kavanaugh, issued her first clear statement that she too would vote to overturn Smith.

Smith’s reversal may be imminent and likely would grant religious objectors a powerful weapon against regulation. In his nearly eighty-page Fulton concurrence—joined by Justices Thomas and Gorsuch—Justice Alito is practically chomping at the bit.

But Fulton may not be as narrow as it first appears. As Justice Alito predicts in his concurrence, the same big picture issues will return to the Supreme Court in short order. Until then, Fulton will not, as he claims, simply vanish as if “written on the dissolving paper sold in magic shops.”

Invitation to Discrimination

The immediate effect of Fulton is that religious welfare agencies in Philadelphia can refuse to certify LGBTQ people as foster families. Other agencies that once agreed to stop discriminating may now seek the same exemption.

And Fulton may have ripple effects. For example, the Archdiocese of Galveston-Houston is seeking to enter the foster care business, but only if exempted from antidiscrimination rules. Miracle Hill Ministries is facing lawsuits for turning away families because they were Catholic, Jewish, or gay. The litigants may point to the Department of Health and Human Services’ ability to grant waivers from child welfare funding requirements as proof of individualized exemptions.

To be sure, not all contracts will contain provisions that suggest an individualized exemption process. But some will. And lawyers for large religious contractors will scour federal, state, and city contracts for any hint of individualized processes that would boost their chances at a religious exemption.

More broadly, Fulton appears to question the governmental interest in eradicating discrimination—even in its own programs. Justice Alito's concurrence announces outright that the government has no interest in equal treatment of same-sex couples, so long as there are other nondiscriminatory agencies. Chief Justice Roberts quoted Masterpiece’s observation that “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” But when he described the city’s interest, he didn’t use strict scrutiny’s magic word—“compelling”; he admitted only that it was “weighty.”

A Dubious Strategy?

While the outcome in Fulton was not surprising, the lineup was. The three more progressive justices all joined Roberts in his convoluted—and ultimately unsatisfying—opinion. Not one justice dissented.

Micah Schwartzman and Nelson Tebbe have argued that some justices—Justice Kagan chief among them—are engaged in a sustained strategy of offering asymmetric concessions in order to avoid conflict in a way that is ultimately self-defeating. This strategy seems to be on full display in Fulton, even adding Justice Sotomayor into the mix.

Why does it matter? By joining the opinion, the moderate and liberal justices give the mistaken impression that the results reached by the Court—and the reasons given to justify those results—have more support than they actually do. And in doing so, they hand their conservative colleagues a powerful rhetorical weapon. Not only did the Court rule for CSS in Fulton, they will say, it did so unanimously. The obvious suggestion here will be that any disagreement reveals hostility to religion or ideological blind spot.

Here we see shades of Hosanna-Tabor and its aftermath. In 2012, the Supreme Court surprised court-watchers by issuing a unanimous opinion recognizing the right of religious organizations to select their ministers. In the intervening years, the decision grew to strip many employees of workplace protections. But conservative commentators routinely brush aside criticism by pointing to the Court’s unanimity. Expect much the same when it comes to Fulton and its progeny.

 

Juneteenth and the Symbolic Gesture of a Federal Holiday

As of Thursday, Juneteenth is our newest federal holiday. Signed into law by President Biden, the Juneteenth National Independence Day Act was passed by the Senate by unanimous consent and with overwhelming support in the House. Rep. Sheila Jackson Lee, lead sponsor in the House, noted upon introduction of the bill in February, “Juneteenth celebrates African American freedom while encouraging self-development and respect for all cultures. But it must always remain a reminder to us all that liberty and freedom are the precious birthright of all Americans which must be jealously guarded and preserved for future generations.”

The establishment of a federal holiday to commemorate the end of slavery is the result of tireless work of activists like Opal Lee. Opal Lee, at the age of 89, set out to walk from her home in Fort Worth, Texas to Washington, D.C. in 2016 to raise awareness and support for establishing Juneteenth as a national holiday. She walked across the country two and a half miles a day, a distance chosen to symbolize the two and a half years that Black Texans remained enslaved after the Emancipation Proclamation was issued.

On January 1, 1863, President Abraham Lincoln issued the Emancipation Proclamation, declaring all enslaved persons within Confederate states to be free “and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.” Yet, it took until June 19, 1865 for Union Major General Gordon Granger and 2000 Union troops to arrive on Galveston Island in Texas and enforce the proclamation. More than 250,000 enslaved Black people in the state of Texas were finally free.

It is telling that the legacy of this very history, an incredibly important part of Texas history that was kept alive by generations of Black Texans, was barred from being taught in Texas classrooms during the same week. On Tuesday, Governor Greg Abbott signed into law House Bill 3979, which among many problematic provisions, includes a prohibition on educators teaching concepts that “with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality.”

In the wake of the murders of George Floyd, Breonna Taylor, Tony McDade, and many others, the Movement for Black Lives and other activists and thought leaders have called upon Americans to take a hard look at the history Americans were taught in school and the racism that has permeated every aspect of our society. The publication of the 1619 Project by the New York Times, which sought to “reframe the country’s history” by centering Black Americans in the national narrative, led to a backlash from a group of historians, conservative groups, commentators, and politicians. Out of this backlash came a conservative panic over Critical Race Theory, a term that conservative lawmakers have “conflated . . . with other concepts such as diversity and inclusion efforts, anti-racism training, social justice activism or multicultural curricula,” and Texas House Bill 3979 (and newly enacted laws in Idaho, Iowa, Oklahoma, and Tennessee).

Governor Abbott has asked the Texas Legislature to go even further during a special session with an even more restrictive law on educators’ curricula. This willful refusal to grapple with systemic racism will be paired with unabashed attacks on Black Texans’ voting rights all while racial health disparities have led to thousands of COVID-19-related deaths.

Symbolic gestures such as the establishment of a federal holiday can be important. Zak Cheney-Rice wrote of the importance of such a gesture on Juneteenth last year, arguing that “[f]ederal holidays celebrate and define our highest ideals as a nation, and memorialize blood shed upholding them… You want to honor people who died making America what it is? Honor the black enslaved.” But symbolic gestures cannot be the end of the work. The same police violence and systemic racism that led millions to march last summer persist today. As Opal Lee, grandmother of Juneteenth, told the New York Times last June, “We have simply got to make people aware that none of us are free until we’re all free, and we aren’t free yet.”

Two Surprises in Fulton v. City of Philadelphia – A Unanimous Outcome and the Enduring Quality of Free Exercise Principles

The Supreme Court heard argument in Fulton v. City of Philadelphia on the day after Election Day, 2020, and just a few days after Justice Amy Coney Barrett took the oath of her new office. The highly watched case involved a conflict between Catholic Social Services (CSS) of Philadelphia and the City, over whether CSS had a right under the Free Exercise Clause to refuse to screen same sex married couples for eligibility to be foster parents. The contract between CSS and the City included requirements of non-discrimination with respect to sexual orientation (among other grounds). CSS objected to this requirement, claiming that the rule burdened its organizational religious beliefs that marriage was reserved for unions of one man and one woman.

The U.S. Court of Appeals for the Third Circuit ruled in favor of the City. A central premise of its ruling was the ongoing validity of the Supreme Court’s 1990 decision in Employment Division v. Smith, which held that the Free Exercise Clause does not confer rights to religion-based exemptions from laws that are non-discriminatory and generally applicable to the relevant parties. The Third Circuit agreed with the City that Smith precluded a constitutional right of exemption from its prohibition on discrimination against same sex married couples, because all social welfare agencies (religious or not) in the foster care system had to abide by that prohibition. In its certiorari petition, Catholic Social Services explicitly urged the Court to consider whether Smith should be overruled, and the Court included that question in the grant of review.

Seven and half months after oral argument, the Supreme Court surprised every Court watcher with a unanimous decision in favor of CSS. The Court was not unanimous, however, on the far more important issue of how free exercise principles should apply in future disputes. Chief Justice Roberts wrote the Court opinion for six Justices, resting its holding on the narrow and questionable ground that the City’s non-discrimination policies were not “generally applicable,” and therefore were outside of the protective ambit of Smith. That conclusion invited the Court to apply more rigorous scrutiny to the City’s treatment of CSS, and the Court determined that the City’s exclusion violated CSS’s free exercise rights.

Over the course of two separate opinions, three Justices – Alito, Gorsuch, and Thomas – concurred in the judgment only. The Gorsuch opinion accuses the majority of disingenuously refusing to engage in the question of whether Smith should be overruled. And Justice Alito, in a sweeping seventy-seven pages, argued emphatically that Smith had been wrongly decided and should indeed be overruled.

Justice Roberts’ Court opinion offered no answer to Alito. The only answer from anyone in the Court’s majority appeared in a very brief, concurring opinion by Justice Barrett. Justice Barrett, joined on this point only by Justice Kavanaugh, leaned toward agreement that the text and structure of the Free Exercise Clause did not support Smith. But her opinion identified a set of crucial questions, pointedly not answered by Justice Alito, about the uncertainty that would follow from the overruling of Smith. Justices Barrett, Kavanaugh, and Breyer saw no reason to leap into that Free Exercise thicket in a case where all nine Justices agreed that CSS should prevail.

Three years ago, writing about the Court’s disposition of Masterpiece Cakeshop v. Colorado Civil Rights Commission, we subtitled our comment “A Troublesome Application of Free Exercise Principles by a Court Determined to Avoid Hard Questions.”  The majority opinion in Fulton v. City of Philadelphia deserves a similar description. The opinion makes a considerable stretch to find that the prohibition on discrimination in this context was something other than generally applicable.

First, it refers to a provision (section 3.21) in the City’s standard contract with agencies that provide foster care services to the effect that those agencies, including CSS, will not “reject . . . prospective foster parents . . . based on their race, ethnicity, color, sex, sexual orientation, gender identity, religion, [or] national origin unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.”  This grant of discretion, the Court reasons, invites case-by-case exceptions, and therefore destroys the general applicability of the anti-discrimination norm. Although Smith itself had suggested that, in the unemployment context, a regime of discretionary exceptions for “good cause” should not be viewed as generally applicable, that context is one in which such exceptions are routine and on-going. In contrast, the City Commissioner in Philadelphia had never made an exception under 3.21 for discrimination on forbidden grounds against prospective foster parents, and the City asserted that the Commissioner lacked authority under other provisions of the contract and under local law to make such exceptions. So, as a matter of consistent practice, the City treated the non-discrimination norm with respect to prospective foster parents as generally applicable. Notably, this argument about discretion played almost no part in the presentation by CSS to the Court.

Second, and even less plausibly, the Court rejected the City’s argument that its Fair Practices Ordinance, which prohibits discrimination in “public accommodations opportunities” based on (among other grounds) an individual’s sexual orientation, constituted a relevant, generally applicable law. The Court construed the Ordinance as not covering foster parenting as a “public accommodation,” because the relevant service of certification as a foster parent involved a high degree of selectivity. Whatever the merits of this reading, which we doubt, the Court’s adoption of it defies the long-standing norm that the Supreme Court takes state and local law as the Court finds them.  In this case, both the U.S. district court and the U.S. Court of Appeals had determined that the Fair Practices Ordinance does indeed cover the opportunity to serve as a foster parent, and by its own teaching, the Supreme Court should have accepted that determination.

CSS thus prevailed in its immediate object in Fulton, although the City has at its disposal the tools necessary to make its non-discrimination norms generally applicable. The city can rewrite the contract to exclude discretion to waive non-discrimination in screening of prospective foster parents. And the City can revise its Fair Practices Ordinance to clarify the coverage of foster care opportunities. Either move would re-ignite the entire conflict and invite re-litigation from the ground up.

The Court’s dogged determination to find the City’s non-discrimination norms not generally applicable can be understood only in light of the battle over whether to overrule Smith. The concurring opinion by Justice Gorsuch, joined by Justices Thomas and Alito, explicitly takes the majority to task for steering a “circuitous path” designed to “steer the Court around the controversial subject matter” of religious freedom, same sex marriage, and the future of free exercise principles. Justice Alito’s lengthy and elaborate concurring opinion, joined by Justices Gorsuch and Thomas, reads entirely like an effort to win a majority for the enterprise of emphatically and un-ambivalently repudiating Smith. Justice Alito advances, in great detail, a set of arguments from text, structure, history, and precedent about why he would hold that the Court’s decision in Smith is wrong.

The Justices in the Fulton majority failed to challenge many of Justice Alito’s arguments. In this omission, they were abetted by the disappointing failure of the City of Philadelphia and many of its amici to defend Smith. Here, we note that, together with Professors Frederick Gedicks and William Marshall, we filed an amicus brief in Fulton, arguing that the Court had correctly decided Smith. In a piece we plan to write and publish later this year, we will explain why many of Justice Alito’s arguments are deeply tendentious and wrong.

One aspect of the arguments we advanced in our amicus brief, however, found its way into an opinion in Fulton, and perhaps explains why CSS and its counsel did not prevail in the effort to reshape free exercise principles. Justice Barrett’s crucial opinion, concurring in both the opinion and judgment of the Court majority, squarely addresses the questions that courts would face going forward if Smith were to be erased. Citing the Court’s own pre-Smith precedents, Justice Barrett wondered whether 1) it matters that the asserted burden falls on religious entities as compared with individuals; 2) cases might turn on the character of the burden on religion as direct or indirect; 3) the scrutiny of free exercise claims would always be strict, or might sometimes be milder; and 4) a variety of pre-Smith cases would have to be reconsidered.

These questions are far from academic or idle. In the period before Smith, the Supreme Court repeatedly worked around the supposedly religion-protective free exercise regime suggested in several prior decisions. Lower courts had done likewise.  As this pre-Smith jurisprudence demonstrated, courts cannot rationally and consistently administer a constitutional presumption that claims for religious exemption from general norms must prevail except in very narrow circumstances. Yet this presumption is exactly what Justice Alito asserted in his Fulton opinion. Taken at its full force, this constitutional approach would leave the government nearly helpless in the face of free exercise claims.  Future work-arounds would be inevitable, and Justices Alito, Gorsuch and Thomas would leave it to the lower courts to struggle with the problems on the front lines.

Justice Alito’s final paragraph complained in frustration that “[a]fter receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.” This unusual reference to the time and process of decision suggests that he had spent months aggressively seeking the additional votes necessary to overrule Smith from the trio of Justices Barrett, Breyer, and Kavanaugh. For all we know, Justice Alito may have come tantalizingly close to getting those votes.  Although CSS prevailed (at least for the moment) in Fulton, the free exercise principles affirmed in Smith and its progeny seem destined to endure a considerable while longer.

The Demise of the Eighth Amendment as a Means for Juvenile Justice

Over the course of just seven years beginning in the mid-2000s, the United States Supreme Court issued three landmark decisions updating its juvenile criminal justice jurisprudence. These decisions declared the harshest sentencing schemes unconstitutional for offenders under eighteen, including the death penalty, life without parole for non-homicide offenses, and mandatory life without parole for homicides. Now, more than a decade later, the Supreme Court has reversed course, signaling a potential end to juvenile justice progress at the high court.

The Myth of the Super Predator

In 1995, political scientist, John DiLulio, published an article called The Coming of the Super Predators, alleging that his research predicted an onslaught of heartless juvenile crime. The super predator theory had an incredibly harsh racial overtone, disproportionately targeting males of color. DiLulio described an image of “a young juvenile criminal who is so impulsive, and so remorseless that he can kill, rape, [and] maim, without a second thought.” However, this supposed drastic increase in juvenile crime never came.

DiLulio may have admitted that his predictions were “as far off as he could possibly get,” but the criminal justice system responded to his warnings with a waive of cruel and unusual punishment. States enacted legislation that exposed juveniles to the harshest punishments.  Judges and juries chimed in by imposing these sanctions, the death penalty and life without parole, in inordinate numbers. Despite the decrease in juvenile crime throughout the 1990s, the criminal justice system was overborne by the super predator narrative.

The Juvenile Justice “Switch in Time”

At the same time that the basis of the super predator myth was unraveling, the scientific community was coming to a consensus that the structure and function of the adolescent brain made this population inherently less culpable than adults. This gave the Supreme Court two important reasons to depart from traditional Eighth Amendment analysis, where “national consensus” is the touchstone for updating society’s “standards of decency.” In three watershed juvenile justice cases, Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court based its “standards of decency” analysis on brain research and international juvenile justice trends. In a recent and abrupt about face, the Court ended this hopeful trend in Jones v. Mississippi, reverting to an Eighth Amendment analysis rooted in “national consensus.”

The first landmark decision, Roper v. Simmons, abolished the death penalty for all juveniles in 2005. Just sixteen years earlier, the Court had upheld the constitutionality of the death penalty for juveniles ages sixteen and seventeen, making Roper a rare decision for a Court committed to stare decisis. In his dissent, Justice Scalia argued that the “national consensus” did minimal, if any work, in the majority’s Eighth Amendment analysis. Explaining this point, Justice Scalia wrote that “since our decision sixteen years ago in Stanford, only four states that previously permitted the execution of under-18 offenders, plus the Federal Government, have legislatively reversed course.” How can this legislative change constitute a “genuine national consensus?”

What does the majority really base its Eighth Amendment “evolving standards of decency” analysis on? First, the majority considered neurological research, concluding that that “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.” Second, the Court compared the punitive nature of the United States criminal justice system’s treatment of juveniles with the rest of the world. The Court cited Article 37 of the United Nations Convention on the Rights of the Child, which “contains an express prohibition on capital punishment for crimes committed by juveniles under 18.” Additionally, the Court painfully acknowledged that only “seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of the Congo, and China.” Further, the Court commented that “since then each of these countries have either abolished capital punishment for juveniles or made public disavowal of the practice,” leaving the United States as the last nation to sentence this vulnerable population to death. Legislative action in four states was certainly not enough to “trigger a constitutional prohibition,” but sound neurological research and embarrassment in the world sphere were.

The Supreme Court continued employing neuroscience and international consensus in Graham v. Florida, holding that “life without parole violates the Eighth Amendment when imposed on juvenile nonhomicide offenders.” Again, the dissent commented that a “national consensus in favor of the Court’s result simply did not exist” because “the laws of all 50 states, the Federal Government, and the District of Columbia were well aware that their laws allow for juveniles to be tried in adult court if charged with certain crimes.” Legislatures purposefully left juvenile crime subject to the harshest punishment.  To overcome this lack of national consensus, the Court relied on the “overwhelming weight of international opinion,” against imposing life without parole on juvenile offenders. The Court also cited “developments in psychology and brain science,” which, “continue to show fundamental difference between juvenile and adult minds.”

Finally, in Miller v. Alabama, the Court ruled that a “juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile’s special circumstances.” The revolutionary aspect of this case was how much the majority focused on Evan Miller’s narrative. The Court acknowledged that Miller was being sentenced to die in prison for a crime he committed at fourteen years old, by which age he had already “been in and out of foster care because his mother suffered from alcoholism and drug addiction and his stepfather abused him. Miller, too, regularly used drugs and alcohol; and he had attempted suicide four times, the first when he was six years old.” Instead of focusing on the danger of juvenile crime, the Court recognized the tragic environment that Evan Miller and many other vulnerable juveniles face. Four years later, in Montgomery v. Louisiana, the Court applied Miller retroactively to juveniles who had been sentences to life without parole prior to that decision.

The Demise of Juvenile Justice under the Current Supreme Court

Unsurprisingly, the losses of Justices Kennedy and Ginsburg and the additions of Justices Kavanaugh and Coney Barret put an end to the adolescent psychology-based Eighth Amendment analysis. On April 22, 2021, in Jones v. Mississippi, the Court rejected petitioner’s argument that “an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility,” was necessary to sentence juveniles to life without parole under Miller and Montgomery. The majority and the dissent disagreed on what steps the Court needed to take to “distinguish ‘between the juvenile offender whose crime reflects unfortunate and transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Only the latter category is constitutionally eligible for life without parole.

The majority concluded that this rule only required “[a] hearing where youth and its attendant characteristics are considered as sentencing factors.” The majority paid lip service to the science-based Eighth Amendment analysis in Roper, Graham, and Miller, stating that it is “difficult…to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Instead, it reverted back to an Eighth Amendment analysis based on a “national consensus” of “legislative enactments and state practice,” concluding that “Miller did not identify a single State that, as of that time, made permanent incorrigibility an eligibility criterion for [juvenile] life-without-parole sentences.” The majority also rested its reasoning in “Montgomery’s modest statement that ‘Miller did not impose a formal factfinding requirement,’” to conclude that “‘a finding of fact regarding a child’s incorrigibility . . . is not required.’”

Justice Sotomayor’s dissent attacked the majority’s reasoning for tragically “gut[ting]” Miller and Montgomery. As a threshold matter, she asserted that although “Miller did not impose a formal factfinding requirement,” it “does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole.” The majority’s sole requirement that the judge conduct “[a] hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors” is not enough. Miller also deemed life without parole sentences unconstitutional for “children whose crimes reflect transient immaturity.” This requires a separate analysis. The proportionality analysis, balancing the life without parole sentence with the distinctive attributes of youth, considers the “nature of the crime.” As Justice Sotomayor explained in oral argument, to determine if a juvenile’s crime “reflect[s] transient immaturity,” the sentence must “look[ ] at the nature of the offender.” Therefore, the majority eviscerated the revolutionary nature of Miller, which considers the specific youth. However, Justice Sotomayor does not lose hope and brilliantly directs sentencers to “hold this court to its word,” acknowledging that “many States have already implemented robust procedures to give effect to Miller and Montgomery.”

It is clear that the current Supreme Court put the breaks on an Eighth Amendment analysis that appreciates the neurological differences between the adult and juvenile brain. Juvenile advocates may have to wait years until there are justices on the court who fully appreciate the humanity that Roper, Graham, and Miller were trying to breathe into the most punitive justice system in the world.

 

Celebrating Heritage and Confronting Hate

For years Asian American and Pacific Islander Heritage Month has been an opportunity for us to lift up and celebrate the many contributions of AAPI individuals and communities to our society, and to our country. But this year, instead of celebrating, many Asian Americans are living with a sense of fear.

According to a new study, attacks against Asians in 16 of the largest cities and counties across the United States increased 164 percent in the first three months of 2021 compared to the first quarter of 2020. In March, eight people were killed in the Atlanta area, six of whom were Asian women; and in April eight people were killed at the FedEx facility in Indianapolis, four of whom were members of the local Sikh community.

Each of these mass shootings (as well as those in so many other cities and towns across America this year alone) is horrific, and while investigations are ongoing to determine motives in Atlanta and Indianapolis, this deadly violence heightens the alarm many Asian Americans feel.

Of course, it hits close to home when acts of bias and hate affect so many members of your community. But these terrible, deadly acts can also impact us in unexpectedly personal ways.

Among those murdered in the Indianapolis mass shooting were women and men as young as 19 and as old as 74. Two of the victims, Jasvinder Kaur and Amarjit Kaur Sekhon, not only shared my Sikh faith and heritage: after they were killed, I learned they were distant relatives.

Jasvinder Kaur was a mother of two. Amarjit Kaur Sekhon was a mother and the primary breadwinner of her family. They were related by marriage, meaning that, tragically, this extended family lost two members to the violence.

Their loss, and the lives of those we’ve lost in all these senseless acts of violence, reminds us that acts of bias and hate have real and terrible consequences; for the victims, and for all who are touched by them, however remotely. These acts also remind us that across the U.S. strong action is needed.

There are some encouraging signs at the national level. After taking office the Biden-Harris administration issued an Executive Order condemning racism and intolerance against Asian-Americans, and in April the U.S. Senate passed a bipartisan anti-Asian hate crimes bill.

But there is only so much the federal government can do. We lack accurate data to assess the problem nationally, and because local law enforcement deals with the vast majority of incidents, most of the information about the problem is scattered and decentralized. Annual FBI reporting is widely known to undercount hate crimes, because statistics are based on voluntary surveys sent to law enforcement agencies across the country. And these statistics only account for reported hate crimes; they exclude bias incidents, such as harassment.

This is where state governments can, and must, step in to bridge the gaps. In New Jersey, we’ve developed a strategy that other states can draw from to address hate and extremism.

First, uniquely, New Jersey law requires all state, county, and local law enforcement agencies to report incidents of bias and hate to the uniform crime reporting system maintained by our State Police. Using this comprehensive data set, we release annual as well as monthly reports detailing bias incidents by location, type of crime, and who was targeted.

We just released preliminary data on bias incidents reported in 2020, so we know that, unfortunately, over the past four years we’ve had year-over-year increases in the number of reported incidents in our state, including incidents against people of Asian descent. From 2015 to 2018, the total number of anti-Asian bias incidents hovered between 15 and 20 each year, but in 2019, it jumped to 39. And in 2020 the number of anti-Asian incidents rose to 71, an 82 percent increase from the prior year.

The data both inform and underscore the importance of a second step we’ve taken: understanding and addressing the causes of hate and bias among children and young adults. One critical issue our data revealed is that more than half of all known bias offenders in New Jersey in 2019 were age 25 or younger, and nearly half of that group consisted of young people age 17 or under. In response, Governor Phil Murphy created the interagency New Jersey’s Youth Bias Task Force to generate solutions to root out discrimination and hate among young people.

The Task Force’s report offers more than two dozen recommendations on ways to reach young people before they become radicalized by hateful rhetoric and ideologies. These include incorporating anti-racism coursework into our schools’ curricula, and reforming New Jersey’s hate crime laws to make them among the toughest in the nation.

Third, we need look no further than the assault on the Capitol Building to see that comments lead to conduct, and how quickly and dangerously hateful rhetoric is amplified and spread online. This is why we’ve been working to hold social media companies accountable for their role in propagating hate, urging social media platforms like Facebook to adjust their recommendation algorithms that make it easier to share and promote extreme content—and stop providing community to bigots and violent conspiracy theorists.

The fourth aspect of our strategy involves innovation, making it easier for residents, especially victims, to report incidents in their communities. In November, we launched an online portal, bias.njcivilrights.gov, which offers a simple way to report bias incidents anywhere, anytime.

There is much more to be done, and our efforts to understand and prevent hate and the violence that often accompanies it continue. We invite other states, and the federal government, to collaborate with us, and borrow pages from our data-driven playbook. In doing so, we can return again to celebrating the diverse cultures and heritages that comprise who we are as a nation, without grief and fear.

Gurbir S. Grewal is New Jersey’s Attorney General. Follow the AG's office on Twitter, Facebook, Instagram, and YouTube @newjerseyoag.

 

When corporations deceive and cheat workers, consumer laws should be used to protect workers

A janitorial company lures low-wage, immigrant workers to become “franchisees,” offering the promise of small business ownership and steady income. An online food delivery company provides a place on the app for customers to tip workers. A training program for jobseekers promises a position at the end of the costly course.

But in reality, the franchisees can barely survive, the company keeps the tips, the training is bogus, and the promised job is nonexistent.

Some public enforcement agencies (and even private lawyers) have recently attacked corporate misconduct of this sort by enforcing laws traditionally used to protect consumers in order to address unfair and deceptive labor market practices that target working people, often immigrants and people of color. More enforcement agencies and lawyers should follow their lead. Public enforcement agencies that focus on enforcing consumer protections, including federal agencies, attorneys general, and state and local consumer offices, should take an expansive view of their mission, and take action to protect worker-consumers in their often-complex relations with large corporations that use abusive and predatory practices.

A few recent cases provide examples of how this can be done.

Earlier this month, Washington State Attorney General Bob Ferguson used consumer fraud laws to sue National Maintenance Contractors, a janitorial company that, according to the complaint, exploited immigrant workers by selling them franchises that seemed to offer the opportunity to become business owners, but in fact left workers making subminimum wages and paying grossly excessive fees.

Last year, District of Columbia Attorney General Karl Racine recovered $2.5 million from DoorDash, including $1.5 million to be distributed to workers. His office had filed a consumer fraud lawsuit against the company based on misrepresentations to consumers about how their tips would be used. DoorDash effectively used consumer tips to satisfy its own promised payments to workers, a practice that was deceptive and misleading to customers, who intended tips to increase worker pay.

Along similar lines, in 2020, the Federal Trade Commission (FTC) announced an eye-popping $61.7 million settlement involving Amazon Flex for its handling of tips meant for delivery drivers. The enforcement theory in this case was also that Amazon was engaging in “unfair or deceptive” practices, this time directed at workers, because of the assurances that Amazon had made to workers that they would receive all their tips.

In the above cases, there was also an argument that the workers were misclassified as “independent contractors” or franchisees, and should have been employees entitled to minimum wage, overtime, and of course, all of their tips. (In fact, enforcement agencies have brought employment law challenges against platform companies: the attorneys general of California and Massachusetts sued Uber and Lyft; the San Francisco and Los Angeles district attorneys sued the platform housecleaning company Handy, and the San Diego City Attorney sued grocery delivery company Instacart.) While use of consumer laws to protect workers does not address misclassification directly, it does allow public enforcement agencies to obtain relatively swift relief for basic consumer protection violations that cause workers substantial harm: DoorDash and Amazon deceived workers and consumers about tips, and National Maintenance Contractors preyed on workers who were also prospective franchise purchasers by convincing them to buy a predatory product.

Another example relates to noncompete agreements. In 2017, the Illinois Attorney General sued a check-cashing company based on its inappropriate use of provisions preventing employees from getting a job with a competitor. These “noncompete” agreements, increasingly used in a wide range of workplaces, have been shown to restrain workers’ job mobility and suppress wages, and many states are now passing laws to prevent their abuse. The Illinois AG’s lawsuit opposed these noncompetes on several grounds, including under consumer fraud laws at the core of the AG office’s enforcement authority. The complaint asserts that by requiring legally unenforceable noncompetes of low-wage workers, who believe the contracts are valid, the company’s conduct violated consumer laws because it was deceptive. (And also, according to the lawsuit, “immoral, unethical, oppressive, and unscrupulous.”) In other words, the employer engaged in unfair and deceptive acts in the marketplace.

This enforcement strategy has several benefits. In many instances, by using consumer protection laws that prohibit “unfair and deceptive acts and practices,” agencies that don’t have explicit authority to enforce labor standards protections nonetheless have a powerful hook to attack corporate efforts to undermine worker power. The FTC doesn’t have jurisdiction to enforce minimum wage laws against Amazon for misclassifying its Flex drivers, but it can protect workers under its general authority to go after corporate fraud.

Using consumer laws to protect workers can also allow for immediate relief for workers by temporarily sidestepping more complex questions that may arise when enforcing more traditional labor standards laws. Moreover, this approach directs public enforcement resources to emerging challenges affecting workers that fall outside of traditional labor agencies’ authority.

In these extremely challenging times for workers, with stagnant wages, routine retaliation for union organizing, inadequate enforcement resources, and the terrifying threat of workplace exposure to COVID-19, our country’s workers need all the champions they can get. And consumer agencies would be neglecting an important part of their work if they take a rigid and overly narrow understanding of who their agencies exist to protect. Consumer protection agencies should take action to address a range of complex practices at the intersection of the consumer and labor markets.

Examples of additional potential cases abound. Jobseekers enroll in training to be security guards or long-haul truckers based on the promise of a solid job, and end up deep in debt, sometimes with no job to speak of. Temp agencies suggest that they're an on-ramp to full-time employment, when in reality, almost no one gets a full-time job, likely in part because of conversion fees— hidden from workers—that job placements must pay in order to hire a temp worker as a regular employee. Students enter so-called “income share agreements” with finance companies under which the company pays the students’ tuition in exchange for a share of their income going forward. And employers increasingly offer (either directly or through third parties) short-term loans or “early wage access” programs that can operate like payday loans to allow workers access to quick cash but that come with high fees and effective interest rates.

In cities like New York, with sky-high unemployment rates following the onset of COVID-19, online job placement agencies and training schools have become a common scam. Construction workers dished out hundreds of dollars for online Occupational Safety and Health Administration (OSHA) training courses, offered by employment agencies, that promised a job at the end of the program—illegal under NYC law because such agencies cannot charge jobseekers for classes, trainings, or other services. Other jobseekers attended eyebrow microblading schools offered online, which are useless for a job that requires a Department of Health license.

In some jurisdictions, policymakers should update consumer protection laws to ensure that they reach arrangements where a business provides credit to its workers to purchase training or tools of the trade. Some consumer protections don’t apply to business-to-business transactions and have thus been presumed to exclude transactions between misclassified workers and the companies that employ them. For example, New York City’s consumer protection law covers goods, services, credit, and debts “primarily for personal, household, or family purposes.” Treating car loans from Uber to its drivers as business-to-business transactions exempt from consumer protection laws would leave drivers in limbo, without the protection of employment or consumer laws. Statutes should also explicitly protect limited English proficient worker-consumers, who are often the target of deceptive advertising and abusive contracts with usurious interest rates.

Finally, all consumer agencies—even those without jurisdiction or resources to aggressively enforce consumer protection laws when worker-consumers are harmed—can play a role in preventing these scams, through robust and multilingual public education and strategic use of outreach and media. This may involve agencies stepping out of their traditional roles to get the job done. For example, to enforce New York state’s safe business reopening guidelines, New York City recently deployed multijurisdictional teams of consumer protection inspectors, as well as teams from the departments of buildings and health, to respond to consumer and worker complaints.

Use of consumer laws to protect workers is a necessary addition, not an alternative, to aggressive and well-resourced enforcement of worker protection laws and organizing to increase workers’ power. But in our constantly evolving labor market, and in the face of post-pandemic life uncertainty, we must ensure that our legal system catches up. Workers, consumers, and the public must demand creative and expansive uses of the laws in the books to fight these multi-faceted abuses of corporate power.

This blog was originally published by the Economic Policy Institute.