The Bivens “Special Factors” and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights

The Bivens “Special Factors” and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights

Amelia G. Collins

Read Comment Here (PDF)

 

Introduction

When courts imply a cause of action under a Bivens analysis and when they apply an immunity as a defense, they are acting in their capacity as common-law courts.[1] However, each of those mechanisms developed differently, and the Supreme Court of the United States has been hesitant to utilize one—Bivens causes of action—while generously applying the other—qualified immunity. The purposes behind each device were originally antithetical, with Bivens aiming to deter unconstitutional conduct and qualified immunity seeking to ensure courts did not deter too much. However, the Supreme Court gradually restricted its Bivens jurisprudence, from granting a cause of action unless there are “special factors,” to denying a cause of action whenever there are “sound reasons.”[2] As a result, the practical outcomes of both analyses are the same: plaintiffs cannot fully vindicate their constitutional rights and often cannot vindicate them at all. This Comment argues that, to ensure the vitality of the foundational presumption that for every legal right, there is a remedy,[3] the Supreme Court should restore its Bivens analysis to the original framework, invoking only those “special factors” recognized in the Court’s initial extensions of a cause of action to plaintiffs bringing constitutional claims.

That would mean abandoning the catch-all “sound reasons” espoused in Ziglar v. Abbasi[4] and followed in the Court’s most recent Bivens decision, Hernández v. Mesa.[5] It would mean considering only whether the issue is purely a matter of policy—that is, one that does not implicate a constitutional right—or whether the issue raises extraordinary separation-of-powers concerns. A restoration of the original Bivens framework would ensure that federal actors can be held accountable when they violate the Constitution. The court-created doctrine of qualified immunity would remain a defense, but, at the very least, the courts would reprise their proper role in the protection of constitutional rights.

Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues for the restoration of the original, more limited “special factors” jurisprudence—and an abandonment of the incorporation of qualified immunity concerns—to facilitate the vindication of constitutional rights.

 


    

    [1].    See Richard H. Jr. Fallon, Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933, 949 (2019) (“Absent statutory authorization, a right to sue for redress of a constitutional violation is a species of common law, crafted by the courts to implement the Constitution in the absence of a necessary one-to-one correlation between a constitutional right and a particular remedy for the right’s violation. Bivens’ innovations were to ground a cause of action in federal rather than state common law and to put alleged constitutional violations at the core of the right to sue.”).

        [2].    Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017); Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971).

        [3].    Marbury v. Madison, 1 Cranch 137, 162–63 (1803).

        [4].    Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017).

        [5].    Hernández v. Mesa, 140 S. Ct. 735, 743 (2020).

The First Amendment and the Great College Yearbook Reckoning

MaryAnn Grover, The First Amendment and the Great College Yearbook Reckoning, 53 U. Rich. L. Rev. Online 19 (2019).

Click here to download PDF.


MaryAnn Grover *

Introduction

“Yearbooks are meant to double as time capsules. There’s aspiration woven into their portrayals of things. . . .”[1] As with all time capsules, some yearbooks contain things that would be better left in the past. Blackface,[2] celebration of the Confederacy[3] and white supremacy,[4] even depictions of students in Nazi uniforms[5] are surely things that most people believe should be left in the past, or should not have even existed in the past to begin with. However, the reality is that such racial and discriminatory depictions have historically been prevalent in student publications. In fact, out of 900 publications across 120 institutions for higher education, a USA Today study found more than 200 blatant displays of racism in college publications throughout the country.[6] And as much as society may want to assert that this is a thing of the past, the unfortunate reality is that such pervasive displays of racism continue today.[7] For example, Eastern Virginia Medical School, whose yearbook was the catalyst for much of the current controversy,[8] eliminated their yearbook altogether in 2014 after three “soon-to-be doctors” were depicted wearing Confederate uniforms, with one smiling and another holding a gun.[9] The questions raised by these instances, though, are how were these depictions published in the first place, and how do we prohibit such disgraceful displays going forward. Those are the questions I attempt to answer in this essay.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”[10] This right was incorporated against the states in Gitlow v. New York.[11] Then, in Healy v. James, the Supreme Court recognized that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”[12] This means that student publications themselves are not immune from the sweep of the First Amendment.[13] Instead, speech by student publications can be prohibited completely only if it falls into one of the Court’s categories of unprotected speech, including incitement, false statements of fact, obscenity, and offensive speech.[14] Additionally, regulations on speech by student publications must be content-neutral, otherwise those regulations are subject to strict scrutiny analysis.[15] Finally, while it is unclear whether the public forum analysis applies to student publications on college campuses, such student publications would likely be considered a limited-use public forum, and thus permissibly subjected to viewpoint-neutral and reasonable time, place, and manner restrictions.[16] While these limitations provide some protection for marginalized students, these limitations and the categories of unprotected speech meant to curb such abuses failed to prevent the harms that resulted from the “yearbook reckoning.”[17]

These regulations, though, were and remain insufficient to stem the tide of racial and discriminatory content in yearbooks produced by universities. Thus, in order to adequately balance the competing interests of creating a true “marketplace of ideas”[18] on college campuses and creating a learning environment in which everyone, regardless of their race, gender, or creed, can feel safe, the Supreme Court should recognize that the traditional mechanisms of protecting and regulating speech by student publications are insufficient. Accordingly, I suggest the best way to balance these interests is by adopting modifications to the traditional categories of unprotected speech for speech by student publications at higher education institutions. Such modifications would redefine what is meant by incitement, false statements of fact, obscenity, and offensive speech on college campuses, and it would do so in a way that continues to disfavor content and viewpoint discrimination by the government.

I advance my argument in three parts. In Part I, I discuss the law as it currently applies to student publications. I begin by briefly addressing the law as it applies to student publications in high schools as a way of demonstrating the lack of clarity in the law as it applies to student publications on college campuses. I then discuss the current state of speech regulation for student publications, including yearbooks, on college campuses. In Part II, I discuss each of the categories of unprotected speech as they are currently interpreted by the Supreme Court, and I demonstrate how they fall short of protecting all students. In Part III, I suggest ways these categories of unprotected speech can be modified to better allow for the exchange of ideas on college campuses in a way that promotes inclusive environments where each student can learn and feel safe. Adopting such modifications would allow student publications to truly serve as a “marketplace of ideas”[19] where curiosity and creative expression can thrive.

I. The Current State of Student Publications

The Supreme Court has made it clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[20] While this mantra is frequently repeated by the Court, it is not absolute.[21] Indeed, school administrators frequently exercise control over student speech and student publications. The level of control that administrators exercise not only varies between schools by practice,[22] but it also varies between primary and secondary schools and colleges and universities by law.[23]

In Hazelwood School District v. Kuhlmeier, the Supreme Court held that in primary and secondary schools, administrators may properly “exercis[e] editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”[24] It was in this case that the Supreme Court first applied the public forum analysis to determine the degree of control academic institutions may exert in regulating student speech in school-sponsored publications.[25] The Court held that because the student publication, Spectrum, was not a public forum, the administration could regulate the time, place, and manner of expression so long as the regulation was reasonable and content-neutral.[26]

However, the Court in Hazelwood declined to decide whether deference is owed to administrators overseeing student publications at the college or university level or whether student publications at colleges are subject to the public forum analysis at all.[27] Thus, confusion exists as to the amount of deference, if any, school administrators are owed in their potential restriction of student publications on college campuses.[28] Additionally, “[d]espite more rulings in favor of students in the university setting than in the secondary school setting, the Supreme Court has never explicitly held that published speech on the university campus receives a higher level of protection.”[29] Yearbooks and other student publications on college campuses have thus existed in a state of limbo, in which the level of protection that should be afforded to publications on college campuses is unclear.[30] Without a clear standard as to what level of protection should be applied, some student publications have been subject to regular administrative oversight, which could have potentially prevented many of the displays of racism and discrimination that have historically been prevalent in yearbooks while other student publications are given carte blanche to publish as they will.[31]

Even as they publish in this state of limbo, student publications on college campuses remain subject to reasonable restraints on the time, place, and manner of their speech. Additionally, they remain subject to the outright prohibition of categorically unprotected speech. Despite this, administrators are left with few tools to regulate or restrict the potentially racist or derogatory speech of student publications so long as the speech is not otherwise categorically prohibited. The Court can resolve this problem by expanding the speech that may be categorically prohibited in the context of student publications to allow college administrators to better restrict racist and derogatory speech.

II. Categories of Unprotected Speech

There are several potentially applicable categories of unprotected speech that college administrators could use to prohibit speech by student publications. Here, I focus on incitement, false statements of fact, obscenity, and offensive speech. They are woefully narrow categories of speech that can be prohibited outright by the government as the prohibited speech included in each category is without value and does not advance the search for truth.[32] Below, these categories are explained and their deficiencies, as they pertain to student publications on college campuses, are discussed.

A. Incitement

The incitement test was famously articulated in Brandenburg v. Ohio.[33] There, the Court announced that advocacy for the use of force or violation of the law was only completely without protection when it was “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.”[34] The adoption of this test was undergirded by the understanding that speech has consequences, and when the consequences result in the use of force or violence, the Constitution permits punishment for the speech that caused the violence.[35] The Brandenburg standard creates a particularly high threshold for restrictions of speech based on the inciting nature of certain words and phrases because it requires the speech be directed to a specific person who could act on it, not just broadcast generally.[36] Additionally, it requires a sort of immediacy, like a heat of the moment response, and ignores the reality that people could be motivated by speech and take time to think through their response to it.[37]

These elevated requirements limit this category of unprotected speech to a very narrow subset of speech, excusing similarly destructive and dangerous speech, that may not be directed specifically at someone or may not encourage such conduct immediately. As a result, incitement is an underinclusive category of unprotected speech that fails to allow university administrators to effectively limit speech by student publications that has the potential to result in violence.

B. False Statements of Fact

In Gertz v. Robert Welch, Inc., the Supreme Court stated unequivocally that “there is no constitutional value in false statements of fact.”[38] For this reason, the First Amendment allows for prohibitions on libel, slander, fraud, and perjury.[39] The traditional test for determining liability for false statements of facts about public figures and regarding matters of public concern is set out in New York Times Co. v. Sullivan.[40] That test provides that false statements on matters of public concern that defame public figures are unprotected only if the speaker knew the statement to be false or recklessly disregarded the statement’s falsehood.[41] Because this test only speaks to defamation of public officials about issues of public concern, it fails to adequately address many instances of false statements of facts that occur regarding private issues or private individuals. While there are additional standards for private figures and private issues,[42] these tests often fail to reach the particular harms that can come from student publications. Further, when it comes to publications or statements about no particular person on issues of public concern, sometimes all liability is prohibited[43] and sometimes the New York Times Co., test applies.[44] This is a complicated landscape that can allow student publications, in particular, to publish “anonymous” blackface photos or “crowded” Confederate soldier photos, without liability stemming from the publication so long as they were not published with reckless disregard for the truth.[45] Creating such a heightened standard to establish liability here virtually prevents recovery against those who publish false stories and who edit or caption photos in misleading ways. It would also prevent recovery when images are inappropriately placed on an individual’s yearbook page, as Governor Ralph Northam has alleged is the case for his yearbook page which includes a photo depicting an individual in blackface and an individual in Klu Klux Klan garb.[46]

C. Obscenity

Speech is classified as obscenity and thus unprotected if,‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest[;] . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and . . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[47]

As such, obscenity has been explicitly limited to the publication or promotion of unusual sexual proclivities.[48] This category of unprotected speech is motivated by the concern that such speech has a “tendency to exert a corrupting and debasing impact [and] lead[]to antisocial behavior.”[49] By its very definition, obscenity excludes other categories that society might deem to have a “corrupting and debasing impact” that is nonsexual.[50] For example, depictions or accounts of extreme violence, whether digital, photographic, or written, are not considered obscene and thus are protected by the First Amendment.[51] Study after study has demonstrated a correlation between the viewing of violent programs or the playing of violent games and the desensitization to other’s pain, as well as increased aggression.[52] However, the obscenity test ignores this correlation and focuses only on those sexually explicit influences. As such, the Supreme Court overlooks an entire category of speech and expression that may have more harmful results than obscenity as it is currently defined in order to protect values that the Court deems necessary to protect. Thus, student publications and yearbooks can continue to publish photos of nooses hung around someone’s neck and call it a joke,[53] regardless of the violence they depict and their “corrupting and debasing impact.”[54]

D. Offensive Speech

Offensive speech can take many forms, from fighting words[55] to infliction of emotional distress, to vulgarity over the radio or television,[56] to abusive words that “by their very utterance inflict injury.”[57] However, each of these forms is particularly narrow. The category of fighting words, for example, pertains only to those words that “tend to incite an immediate breach of the peace” by provoking a fight,[58] are “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction,” and are “directed to the person of the hearer,” and thus likely to be seen as “direct personal insult[s].”[59]

As such, the fighting words prohibition only applies when the words are directed toward an individual in particular who would then view the words as a direct personal insult and likely react accordingly. That is certainly not the case in widely published yearbooks, where the publishers may make no statements other than their inclusion of a particular photo in the edition.

Accordingly, the prohibition on fighting words is concerned with immediate violence, not the long-lasting harms of such epithets. Additionally, the prohibition on abusive words that was originally articulated in Chaplinsky v. New Hampshire has been so limited by the Court that many scholars believe it no longer serves as a prohibition on speech.[60] By so limiting the category of offensive speech, the Supreme Court has allowed significant emotional and societal harms to be visited upon millions in order to allow for rather valueless speech. College is a time when most people begin to develop their identity and sense of self, so to allow student publications to subject them to such harm at such a vulnerable time only increases the societal harm that results from offensive speech.

III.  Modifications to the Categories of Unprotected Speech for Student Publications on College Campuses

As the First Amendment currently applies to student publications on college campuses, there is broad discretion to report on happenings on campus, political movements, and society as a whole.[61] But with that broad discretion also comes the opportunity for significant abuse. As we have seen in recent months, student publication staff members are still maturing; they are still apt to make what they would later deem mistakes.[62] Just as student publishers are apt to make mistakes because they are still maturing, those who their mistakes harm are more likely to suffer significant and long-term psychological damage as a result of those mistakes.[63]

In recognition of the harm that student publications can cause when given significant discretion, the Supreme Court should adopt modified categories of unprotected speech for student publications on college campuses. Such modifications, as discussed below, would be slight and would still allow for the university to be the marketplace of ideas, but they would require those ideas be expressed responsibly and in a way that allows the university to be the marketplace of ideas for all, regardless of their race, gender, or creed.

 A New Type of Incitement

In order to better protect the marketplace of ideas for all, the incitement standard should be amended to prohibit speech that is likely to cause substantial and widespread campus unrest. By requiring a likelihood of substantial and widespread campus unrest, this standard remains heightened to protect as much speech as practicable, but it eliminates the “directed to” and “imminence” requirements that allow for student publications to essentially publish anything so long as it is not a direct mandate to do something violent or illegal immediately. By weakening those requirements for student publications, the Court would simply acknowledge that student publications can incite violence in unique ways that may not result from a direct or immediate command, like causing widespread campus unrest or dividing the campus into competing and enraged factions.

B. A New Recognition of the Harms Associated with False Statements of Fact

Likewise, the definition of, and possible liability stemming from false statements of facts, should be broadened to account for those statements made about communities, or races, or nationalities. Statements stereotyping and communicating false information about entire communities can be just as harmful as statements directed at an individual, and the Court should recognize as much.

For example, statements by politicians and the media categorizing a whole class of individuals, primarily young African American men, as “superpredators” essentially villainized and criminalized an entire community before many young men had even committed offenses.[64] By recklessly labeling an entire community, the politicians who weaponized those labels damaged the national perception of an entire generation of African American men.[65] Acknowledging the unique harm that can be inflicted upon entire communities by false statements of facts, the Supreme Court should assign liability to college student publications for those false statements of facts made about entire communities that are published with reckless disregard for their validity. These student publications should not be able to publish crowded photos without captions[66] that promote the anonymity currently associated with racist portrayals of entire groups of individuals.

C. A New Addition to Obscenity Law

The obscenity category of unprotected speech should be broadened for student publications on college campuses to prohibit not just unusually sexually explicit content, but also particularly violent depictions or situations stemming from such extremely violent acts. Student publications and yearbooks accordingly could be prohibited from publishing photos of students “mock lynching” other students, students pretending to be a firing squad preparing to execute classmates, and students pretending to kill or maim themselves or others. Such depictions should not be promoted as “truths of a gauzy past” as yearbooks are intended to be.[67]

Instead, those depictions are obscene ones that have a particularly “corrupting and debasing impact” that should be left in the past.[68] Allowing student publications to continue to publish such images would contribute to the desensitization to other’s pain that is scientifically associated with images of violence.[69] It would also serve to increase the pain felt by already marginalized communities on college campuses.[70] Therefore, it is incumbent upon the Supreme Court to recognize the unique harm attendant to violent obscenity being printed in student publications and end its protection.

D. A New Acknowledgement of What Constitutes Offensive Speech

Offensive speech on college campuses should be interpreted by the Supreme Court more broadly to reach that speech which causes severe and long-lasting harm but currently has no restriction placed on it.[71] For example, the fighting words category of offensive speech should be broadened by eliminating the requirements that the speech be “directed to the person of the hearer,” and thus likely to be understood as a “direct personal insult.”[72] Doing so would allow the definition of fighting words to reach the largely defunct abusive words category of offensive speech, that would allow restrictions on words or phrases that “by their very utterance inflict injury.”[73] It would meld the two categories and acknowledge that the use of certain epithets, when directed at the ordinary person inherently are injurious and valueless. By acknowledging that there are certain words or phrases so insulting that they inherently cause harm and “tend to incite an immediate breach of the peace,” the Court could better protect the marketplace of ideas for all students on college campuses, even those who participate in student publications.[74]

Conclusion

Colleges and universities are recognized as unique institutions where the free exchange of ideas and the encouragement of curiosity are particularly critical.[75] But that only proves true when the free exchange of ideas includes all ideas, and when certain groups of students are marginalized because of their race, gender, or creed, they are not able to engage as freely for fear of being otherwise isolated or further ostracized.[76] In order to better promote the expression of ideas on college campuses, student publications, particularly yearbooks that have proved rather one-sided and problematic in recent months, should be subject to modified categories of unprotected speech. By adopting these modifications, the Supreme Court would better recognize the unique nature of student publications as educational experiences that allow students to learn and grow while protecting the interests and well-being of otherwise marginalized students. It would provide an “opportunity for colleges not only to address the past, but also to focus on the racial inequalities that are still present on campus, just [sometimes] better hidden.”[77]


*    J.D. Candidate class of 2019 at University of Richmond School of Law. MaryAnn Grover is a 2016 graduate of Oklahoma City University with a B.B.A. in Marketing. She currently serves as the Editor-in-Chief for the Richmond Public Interest Law Review. Many thanks to Corinna Lain for her encouragement and guidance and to the University of Richmond Law Review Online staff for their diligence in editing this piece.

       [1].    Megan Garber, When a Yearbook is a Current Event, Atlantic (Feb. 8, 2019), https://www.theatlantic.com/entertainment/archive/2019/02/ralph-northam-tommy-norme nt-and-yearbooks-current-events/582331/ [https://perma.cc/NC4J-NBXZ].

       [2].    Patrick Wilson & Andrew Cain, Virginia Gov. Ralph Northam Admits He Posed in Yearbook Photo Showing Men in Blackface, Klan Robe, Rich. Times-Dispatch (Feb. 1, 2019), https://www.richmond.com/news/virginia/government-politics/virginia-gov-ralph-nor tham-admits-he-posed-in-yearbook-photo/article_c29e0f55-6284-5bde-8d93-8804ad507d5d.  html [https://perma.cc/7T9E-J297].

       [3].    Scott Jaschik, Yearbook Review Finds Dean with Confederate Flag, Inside Higher Ed (Feb. 25, 2019), https://www.insidehighered.com/admissions/article/2019/02/25/wake-forest-searched-its-yearbooks-photos-linked-racism-and-found-its [https://perma.cc/8VUZ-ZT4B]; Mihir Zaveri, Old Yearbook Photo Shows Tennessee Governor Dressed as Confederate Soldier, N.Y. Times (Feb. 22, 2019), https://www.nytimes.com/2019/02/22/us/tennessee-governor-bill-lee-confederate.html [https://perma.cc/737A-C9RR].

       [4].    Eric Anthony Grollman, About (Black) Face, Inside Higher Ed (Feb. 11, 2019), https://www.insidehighered.com/views/2019/02/11/yearbook-photos-university-richmond-reflect-racism-institution-confronting-its-past [https://perma.cc/9XMN-GPMA]; Amanda Morris & Michel Martin, U.Va. Students Investigate Their Yearbook’s Racist History—Starting with Its Title, NPR (Feb. 10, 2019, 5:07 PM EST), https://www.npr.org/2019 /02/10/693226601/corks-and-curls-virginia-yearbook-has-a-racist-history [https://perma.cc /A9ST-4VLC].

       [5].    Brett Murphy, Blackface, KKK Hoods and Mock Lynchings: Review of 900 Yearbooks Finds Blatant Racism, USA Today (Feb. 21, 2019, 9:43 AM EST), https://www.usa today.com/in-depth/news/investigations/2019/02/20/blackface-racist-photos-yearbooks-colle ges-kkk-lynching-mockery-fraternities-black-70-s-80-s/2858921002/ [https://perma.cc/HZ 9Q-8SEJ].

       [6].    Id. (noting that offensive and racist content was found in publications of “colleges in 25 states, from large public universities in the South, to Ivy League schools in the Northeast, liberal arts boutiques and Division I powerhouses”).

       [7].    Garber, supra note 1.

       [8].    The current scrutiny of college yearbooks was sparked by the discovery of a photo on the yearbook page of current Virginia Governor, Ralph Northam, in the 1984 yearbook of Eastern Virginia Medical School, which depicted a man in blackface standing next to a man in a Ku Klux Klan robe. Wilson & Cain, supra note 2.

       [9].    Garber, supra note 1.

     [10].    U.S. Const. amend. I.

     [11].    268 U.S. 652, 666 (1925).

     [12].    408 U.S. 169, 180 (1972).

     [13].    See 3 James A. Rapp, Education Law § 9.04(7)(c) (2018).

     [14].    Id. § 9.04(4)(c)(v).

     [15].    Id. § 9.04(2)(c)(i).

     [16].    Id. § 9.04(5)(b)(ii).

     [17].    See Emma Pettit & Zipporah Osei, The ‘Great College-Yearbook Reckoning’: Why Scholars Say Blackface Images Aren’t Outliers, Chron. Higher Educ. (Feb. 7, 2019), https://www.chronicle.com/article/The-Great-College-Yearbook/245643 [https://perma.cc/V F5Q-XCXS].

     [18].    Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).

     [19].    See id.

     [20].    Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

     [21].    See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“[Students] cannot be punished merely for expressing their personal views on the school premises . . . unless school authorities have reason to believe that such expression will ‘substantially interfere with the work of the school or impinge upon the rights of other students.’” (quoting Tinker, 393 U.S. at 509)); see also Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 680 (1986) (noting that the Court in Tinker upheld “students’ right to engage in a nondisruptive, passive expression of a political viewpoint . . . [in a case that] did ‘not concern speech or action that intrudes upon the work of the schools or the rights of other students’” (quoting Tinker, 393 U.S. at 508)); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44 (1983) (observing that the First Amendment does not “require[] equivalent access to all parts of a school building in which some form of communicative activity occurs”).

     [22].    Jeff Sklar, Note, The Presses Won’t Stop Just Yet: Shaping Student Speech Rights in the Wake of Hazelwood’s Application to Colleges, 80 S. Cal. L. Rev.  641, 673–74 (2007) (explaining that “each [publication] operates under its own set of circumstances” and the level of scrutiny applied depends on whether the publication is a public forum which depends on “the degree of control over the publication’s content that the college administration has delegated to students”).

     [23].    See Hazelwood, 484 U.S. at 273 n.7 (suggesting a different degree of deference would be appropriate with respect to school-sponsored expressive activities at colleges and universities).

     [24].    Id. at 273.

     [25].    Id. at 267.

     [26].    Id. at 270, 273.

     [27].    Id. at 273 n.7.

     [28].    Patrick O. Malone, Note, The Modern University Campus: An Unsafe Space for the Student Press?, 85 Fordham L. Rev. 2485, 2516 (2017) (“[T]he Supreme Court’s failure to provide sufficient guidance about which First Amendment standard applies to student publications on campuses today has led to a federal circuit court split.”).

     [29].    Id. at 2496–97.

     [30].    Id. at 2516.

     [31].    See id.

     [32].    See Janus v. AFSCME, Council 31, 585 U.S. __, __, 138 S. Ct. 2448, 2464 (2018).

     [33].    395 U.S. 444, 447 (1969).

     [34].    Id.

     [35].    See id. at 447–48.

     [36].    Id.

     [37].    Id.

     [38].    418 U.S. 323, 340 (1974).

     [39].    Rapp, supra note 13, § 9.04(5)(b)(iv).

     [40].    376 U.S. 254, 279–80 (1964).

     [41].    Id. at 297–98 (Goldberg, J., concurring).

     [42].    Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985); Gertz, 418 U.S. at 343.

     [43].    See United States v. Alvarez, 567 U.S. 709, 752 (2012) (Alito, J., dissenting) (“Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal . . . . Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends.”).

     [44].    N.Y. Times Co., 376 U.S. at 264.

     [45].    Id. at 297–98 (Goldberg J., concurring).

     [46].    Alan Suderman, Virginia’s Gov. Northam Says That Wasn’t Him in Racist Photo, AP (Feb. 2, 2019), https://www.apnews.com/416ee0f404d74cf8855be7061c2604e9 [https:// perma.cc/37TW-SVXD].

     [47].    Miller v. California, 413 U.S. 15, 24 (1973) (quoting Kois v. Wisconsin, 408 U.S. 229, 230 (1972)).

     [48].    See Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 792–93 (2011).

     [49].    Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).

     [50].    Id.

     [51].    See, e.g., Brown, 564 U.S. at 792–93 (“As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct . . . .’”).

     [52].    See L. Rowell Huesmann, The Impact of Electronic Media Violence: Scientific Theory and Research, 41 J. Adolescent Health 56, 56 (2007); Keilah A. Worth et al., Exposure of US Adolescents to Extremely Violent Movies, 122 Pediatrics 306, 306–07 (2008); Violence in the Media, Am. Psychol. Ass’n, (Nov. 2013), https://www.apa.org/action/res ources/research-in-action/protect [https://perma.cc/4GH2-MV6Y].

     [53].    Nick Anderson & Susan Svrluga, Photos of Blackface, KKK Robes and Nooses Lurk Alongside Portraits in Old College Yearbooks, Wash. Post (Feb. 7, 2019), https:// www.washingtonpost.com/education/2019/02/08/photos-blackface-kkk-robes-nooses-lurk ing-alongside-portraits-old-college-yearbooks/?utm_term=.2baf84b74050 [https://perma.cc /8TNT-VCRL]; see also Murphy, supra note 5 (referring to a photo at the University of Illinois depicting an African American man smiling and holding a beer while posing with three individuals in KKK robes, an alumnus of the school observed, “I’m sure at the time they probably thought that was funny”).

     [54].    Paris Adult Theatre I, 413 U.S. at 63.

     [55].    Cohen v. California, 403 U.S. 15, 20 (1971).

     [56].    FCC v. Pacifica Found., 438 U.S. 726, 748 (1978).

     [57].    Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

     [58].    Id.

     [59].    Cohen, 403 U.S. at 20 (citing Chaplinsky, 315 U.S. 568, and then quoting Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)).

     [60].    Eugene Volokh, The First Amendment and Related Statutes: Problems, Cases and Policy Arguments 191 (6th ed. 2016).

     [61].    Id. at 593 (“The government acting as college educator is generally assumed by recent lower court cases to have no greater powers than the government acting as sovereign . . . .”).

     [62].    Nicole Carroll, I Became Part of Our Story on Racist Images in College Yearbooks. I’m Here to Apologize for Publishing That Photo, USA Today (Feb. 20, 2019), https://www. usatoday.com/story/opinion/2019/02/20/usa-today-editor-apologizes-racist-yearbook-image-run-her-watch/2931521002/ [https://perma.cc/SC6A-VZL8].

     [63].    See Murphy, supra note 5 (“[T]he choice to publish the images for posterity cut even deeper . . . . ‘People ask, “Why are the black kids sitting together in the cafeteria?’” said Beverly Daniel Tatum, the psychologist and author. ‘It’s because they are protecting themselves from this kind of toxic environment.’”).

     [64].    See Priyanka Boghani, They Were Sentenced as “Superpredators.” Who Were They Really?, PBS (May 2, 2017), https://www.pbs.org/wgbh/frontline/article/they-were-sentenc ed-as-superpredators-who-were-they-really/ [https://perma.cc/B5LJ-2288].

     [65].    Id.

     [66].    Murphy, supra note 5 (“Few images had captions to provide names or context and people’s faces were often hidden behind hoods or blackface”).

     [67].    Garber, supra note 1.

     [68].    Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).

     [69].    Violence in the Media, supra note 52.

     [70].    Murphy, supra note 5 (“Minority students from that era say the comfort with public behavior that would likely meet swift condemnation today further marginalized minorities on campus. And the choice to publish the images for posterity cut even deeper.”).

     [71].    Granted, offensive speech restrictions would still need to be content-neutral as categories of unprotected speech cannot “be made the vehicles for content discrimination unrelated to the distinctively proscribable content.” R. A.V. v. City of St. Paul, 505 U.S. 377, 383–84 (1992).

     [72].    Cohen v. California, 403 U.S. 15, 20 (1971) (quoting Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)).

     [73].    Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1992).

     [74].    See id.

     [75].    Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).

     [76].    See Murphy, supra note 5.

     [77].    Id.

Curating Campus Speakers

Henry L. Chambers, Jr., Curating Campus Speakers, 53 U. Rich. L. Rev. Online 3 (2019).

Click here to download PDF.


Henry L. Chambers, Jr. *

Introduction

Controversial campus speakers trigger debates about free speech on campus.[1] Those who support allowing all controversial speakers to speak on campus tend to be treated as pro-free speech warriors. Those who support preventing some controversial speakers from speaking on campus tend to be painted as anti-free speech. That framing is not particularly helpful, as it may quickly lead to a debate on censorship and the First Amendment.[2] Censorship is not an issue unless the controversial speaker is barred from speaking. A campus speaker’s speech can be discouraged before it is given, and that discouragement may lead the speaker to self-censor, but actual censoring very rarely occurs. In addition, the First Amendment is rarely relevant to a campus speaker’s speech unless a public college or university silences the speech.[3] Private colleges and universities generally can regulate speakers on their campuses.[4] General speech principles may be relevant, but the First Amendment is not at stake.[5]

The debate over controversial campus speakers should be explicitly about academic values rather than free speech because the free speech debate is a poor proxy for a real debate about academic values. Though support for controversial campus speakers tends to be equated with supporting academic values, and opposition to controversial campus speakers tends to be viewed as antithetical to academic values, neither is necessarily true. Refocusing the debate onto academic values rests on considering a simple question: Is inviting or allowing the controversial campus speaker at issue to speak consistent with the university’s mission to foster the robust and free exchange of ideas in service of discovering truth and advancing knowledge? Rather than treating disputes about controversial campus speakers as battles in free speech and censorship, the disputes are better thought of as opportunities to discuss campus values and the university’s mission to find truth and disseminate knowledge.[6]

The discussion of controversial campus speakers, campus values, and the university’s mission should occur through the lenses of curation and economics. Curation addresses what works should be selected or discarded when structuring a project; economics addresses the allocation of goods under circumstances of scarcity.[7] When considering whether a controversial speaker should be or should have been invited to speak on campus, the broader curation/‌economics question is: Given the limited number of good and productive speaking engagements any school or campus can absorb in a given semester, and the disruption that a controversial speaker may cause, does having the speaker visit campus provide a strong opportunity for the campus to become educated about an important issue in a way the school thinks proper? For some, this may look like an invitation to engage in censorship; it is not. It is an invitation to engage in good stewardship of the university’s resources—human, intellectual, and financial.

The curatorial aspect of the discussion is key. When curating a display including controversial or offensive objects, a curator should ask the following questions: What value does the offensive object or component add to the display? Is there a less offensive object that brings the same value? If the offensive object provides a specific value in the context in which it is presented, has sufficient information been provided about the offensive object so people can learn from, rather than merely be offended by, the object? In answering those questions, if the offensive object (with a suitable explanation) helps make the best display, keep it; otherwise, dump it. The same is true of controversial campus speakers.

Curation—the picking and choosing of materials for pedagogical reasons—regularly occurs on college campuses both inside and outside of the classroom. This brief essay explains that curation in two contexts. Part I discusses the curation of courses inside the classroom. Part II discusses the curation of campus speakers outside the classroom. Though applied to different topics, the process of curation is similar in both contexts. Considering both forms of curation can help illuminate and resolve some of the most important issues underlying the debate regarding controversial campus speakers.

  1. Curating the Classroom

Professors must curate their courses and their classrooms.[8] Only so much information can fit into a semester, and students have limited time. Consequently, professors must carefully pick and choose the topics to cover in a course, the materials students must read to prepare for class, and what will be tested during the course. In addition, limited classroom time demands that class discussions be curated to ensure students learn from a classroom discussion rather than merely have a classroom discussion. Different professors may curate their classes differently, but each must do so. A professor who does not curate a course disserves enrolled students.

A. Curating Sexual Assault

When curating a course, a professor must decide whether to cover specific controversial topics. When covering particularly controversial material, professors must curate carefully. For years, I did not cover sexual assault in my first-year criminal law class.[9] I was not convinced the pedagogical value of covering sexual assault was worth its possible downsides, particularly given that criminal law is a required class and students are a captive audience. This is not because sexual assault is barely worthy of coverage in a criminal law course. Various aspects of sexual assault law—the explicit focus on the victim of the crime, quirky definitions embedded in the crime of sexual assault, unusual doctrines of legal mistake embedded in the crime, and the historical underpinnings of the crime itself—make it quite worthwhile to study in a criminal law course.

However, the potential drawbacks of studying sexual assault in a first-year criminal law course are serious. First, teaching sexual assault risks harming the overall criminal law class experience for those who may have been intimately affected by sexual assault. Those students could quickly lose focus on learning criminal law; that is a problem. Surely, I could lecture about sexual assault or tightly scripted a discussion of sexual assault that attempted to minimize the offense or upset students might feel during the discussion. However, such a presentation would differ significantly from the more typical vibrant, open-ended discussion I encourage in my criminal law class. More important, the lecture might not be worth giving if students were not required to discuss and engage the material critically. Second, I had to consider the opportunity cost of covering sexual assault, including what other criminal law topics I could not cover by addressing sexual assault.[10] There is never enough time to teach all of the important issues in a first-year criminal law course. Covering sexual assault would have exacerbated the problem. For years, I concluded that covering sexual assault was not worth the risks.

My mind has been changed. In the last few years, I have included a section on sexual assault in my criminal law course. That decision came after conversations with colleagues, students, lawyers, and judges. The overwhelming sentiment expressed in those conversations was that sexual assault should be covered in a criminal law course, even with the potential pitfalls. After the discussions and self-reflection, I concluded that the pedagogical value of covering sexual assault was likely higher than I had thought, and the downside of covering sexual assault—if I was particularly careful about it—was probably lower than I had thought. Sexual assault would be covered in my class.

The decision to cover sexual assault triggered a second curation issue—how to cover sexual assault. That included considering what cases and other materials to use. Any material regarding sexual assault may cause harm to resurface in those intimately affected by sexual assault.[11] Curating reading materials to get the greatest pedagogical benefit with the lowest chance of causing harm required recognizing that shocking cases with the most upsetting descriptions of sexual assault need not be chosen when teaching sexual assault law.[12] Though cases involving sexual assault always have the potential to trigger harm, there is no need to choose cases that are most likely to trigger harm. It is more sensible to choose the cases that will allow for a good discussion of the legal issues that need to be addressed but are least likely to cause potential harm. That is the most intense curation of materials I do for my classes, and it is the most important.

The curation is not finished once materials are chosen. How controversial and difficult material is presented matters. Sensitivity matters. Before my class discusses the sexual assault material, I explain why I teach sexual assault, inviting questions and comments about my approach. I lecture through introductory material and material that I think is most likely to cause or retrigger harm. Then I open the discussion on sexual assault statutes, cases, and doctrine. We close with a discussion about campus sexual assault policies, focusing on the difficulty in drafting campus sexual assault policies and sexual assault statutes in general. All the while, I watch for upset and distress in my students. Comments I have received from students suggest that many appreciate the approach. My approach is undoubtedly imperfect, but it reflects a professor’s honest attempt to serve pedagogical goals while covering sensitive and potentially disturbing material.

The curation process continues when considering how to test material. Though I may test my students on sexual assault doctrine someday (though not yet), I doubt I will ever use a sexual assault fact pattern in an exam question. The pedagogical purpose of my exam is to discover what a student has learned during my course. I do not want the additional stress and upset that may accompany reading a sexual assault fact pattern to affect or deform the pedagogical point of the exam, particularly when the exam is graded on a curve. Maybe someone can change my mind on this at some point before I retire, but I doubt it.

B. Curating Harassment

The curation of sexual and racial harassment materials in my employment discrimination class is similar to my sexual assault curation, but is somewhat less intense. First, the class is an elective class. Second, understanding harassment is indispensable to understanding employment discrimination in a way sexual assault is not as indispensable to understanding criminal law. Harassment must be covered in depth in an employment discrimination course. Students must have a good grounding in multiple cases and the range of workplace conduct that triggers such cases, even though such material may upset some students. Nonetheless, I try to lessen my students’ discomfort when we discuss those important, but disturbing, topics.

American workplaces remain full of sexually and racially harassing behavior.[13] I can choose from many cases containing troubling fact patterns.[14] Rather than choose the most distressing fact patterns, I tend to choose cases with fairly typical troublesome fact patterns that illustrate key pedagogical points.[15] I then tell the students that there are fact patterns even more awful in other cases, if they choose to explore those cases on their own.[16] Though I do not feel the need to be quite as sensitive to my students’ feelings in this area as in the sexual assault arena, I choose what I expose my students to with care. For example, I am aware that the plaintiffs in most of the cases we discuss in employment discrimination are members of marginalized groups. I am aware that for students from marginalized groups, a steady stream of cases in which the person harmed is from a marginalized group can be demoralizing. For students not from marginalized groups, a steady stream of cases in which the person harmed is outside their group or the person discriminating is inside their group can be problematic for other reasons. I keep all of my students in mind when curating my employment discrimination class and choosing employment discrimination materials for them to read.

Curation inside the classroom focuses on making hard choices about what to include and exclude in our courses consistent with meeting our pedagogical goals. Law schools curate their curricula, requiring students take some courses and declining to require others. Professors curate their courses, requiring students to study some material and declining to require students study other material. If covering controversial and potentially upsetting material is necessary for students to learn the subject area, it should be covered. However, once a professor decides to address controversial material, it should be covered in a manner most likely to serve the professor’s educational goals and least likely to harm students. Professors need not choose the most controversial or outrageous materials to teach different subjects. Though I am not a particularly touchy-feely or sensitive professor, considering my students’ emotions when considering how best to teach them is sensible, fair, and obligatory. I consider what I want students to learn in my course, and I consider my students’ emotions and feelings when determining how they will learn best. Good curation requires choosing the best materials to serve one’s pedagogical goals.

Curation outside the classroom arguably should be less intense than curation inside the classroom. However, the distinction is may not be as stark as some might suggest. A university presumably seeks to educate in all locations where students are supposed to learn. All decisions that affect learning should be based on pedagogical aims and values. We should structure our campuses—all parts of our campuses—consistent with those aims and values. Curation principles should apply to campus speakers. Indeed, focusing on curation rather than free speech may resolve many of the problematic issues that surround controversial campus speakers.

II. Curating Campus Speakers

Campus speakers should be curated. They should be invited to campus primarily to advance the university’s pedagogical mission —to discover truth and disseminate knowledge.[17] To facilitate that, the university and its constituents should think systematically about whether a campus speaker advances that mission. Curating campus speakers requires two arguably controversial steps. First, a campus must identify its values, and let its stakeholders know what those values are. Second, the group inviting the speaker (or the university as a whole) should consider what a potential speaker’s visit offers in support of the campus’ values. Whether a speaker should be invited to speak on campus may depend on the quality (and academic bona fides) of the speaker, the topic of the speech, and the structure of the visit. If those factors suggest the visit will advance the institution’s academic mission, the speaker can reasonably be invited; if not, the speaker should not be invited. Free speech issues arise primarily when a speaker does not appear to meet a high standard of curation. What an institution and its constituents should do if a speaker whose visit does not comport with the institution’s mission has already been invited to speak is a separate question.

A. Identifying a University’s Values

Identifying campus values can be difficult. Even if a university’s stated mission is to discover truth and disseminate knowledge, universities may operationalize values in different ways. For example, a university could claim its values require the free exchange of ideas.[18] Alternatively, a university could deem itself a free speech zone, at least with respect to campus speakers.[19] However it defines itself, a university should be honest about its values.

A campus that claims to maximize free speech is likely sloganeering.[20] Classrooms are not typically free speech zones and should not be. A classroom is a place where learning occurs. It can be structured to provide space for students to speak freely about issues and in ways that move students toward the pedagogical goals the professor has for the class. However, free speech rarely should be the value. It is the means to serve the underlying purpose of educating students, and the larger goal of uncovering and creating knowledge and truth.[21] Certainly, there may be places on a campus where speech is freer than in other places, but a serious campus speaker should trigger an atmosphere more akin to a classroom than to a public place, such as a quad. Nonetheless, some universities may claim to value free speech for its own sake. Those universities should claim that value and curate (or decline to curate) campus speakers based on that value.[22]

Once the university claims its values, it should make certain its constituents know what those values are. The university’s policies should support the values it claims. That may require the university develop policies that encourage campus constituents to act according to those values, and rethink policies that do not. For example, a university that claims to be a maximal free speech zone should consider what policies would promote the free speech of all, not just the free speech of an invited campus speaker. That could lead the university to embrace a culture of free exchange rather than adhere to the slogan of being a broad free speech zone. Only after a university reaffirms and announces its policies can a university fairly hold constituents responsible for falling short of those values.

B. Speakers Who Arguably Should Not Be Invited to Speak

Speakers whose speech does not support a university’s mission of searching for truth and disseminating knowledge should not be invited to speak on campus. Two types of speakers may not be engaged in a serious search for truth: speakers who peddle untruths and speakers who are polemicists. The former should not be brought to campus; the latter may be invited to campus under certain circumstances. Some speakers should not be invited to speak on campus under any circumstances. The content of what they have to say is so antithetical to truth that inviting them to speak is a debasement of a university’s values. A Holocaust denier is an example. Inviting a Holocaust denier to speak at a college campus is pointless. Some suggest that debunking falsifiable claims is part of finding truth.[23] Often, that is true. However, debunking already falsified claims wastes the university’s most precious resources—the intellectual capacity and time of its constituents. The university’s resources should be used on issues that can be reasonably and honestly debated or on topics on which a speaker can shed new light. This is not about ignoring unpopular ideas or supporting orthodoxy, whether conservative or liberal. It is about serving the university’s mission.

Reasonable people can and will draw the line between what is contestable and worthy of discussion and what is not contestable and unworthy of additional discussion in different places. However, a line should be drawn between the contestable and the uncontestable, with the recognition that the uncontestable should not occupy time on a college campus. College communities do not have the time to discuss and debate all contestable issues worthy of discussion. Campuses should not be intentionally distracted by discussing uncontestable issues. Curating campus speakers involves the difficult job of choosing who will speak about contestable topics that are particularly worthy of discussion.

Whether a polemicist should or should not be invited to speak is a different question. The answer depends on the content of the academic exchange that will occur during the visit. The academic exchange depends on academic engagement, which depends on the quality of the speaker and the style of the presentation. If the speaker is an academician, the speaker’s visit will likely create an academic exchange that supports the university’s mission and values. A visit by a controversial and polemical academic who gives a serious lecture on a serious topic that raises issues worthy of discussion is likely consistent with the university’s mission, particularly if the lecture is accompanied by vigorous questioning. The less academically inclined the speaker, the less likely a bare polemical speech will serve the university’s mission. For example, the visit of a polemical non-academic speaker who gives a polemical speech primarily to sell a polemical book is likely inconsistent with the school’s mission. The school has little or no reason to support that campus visit. However, a visit from a polemical non-academic could be structured to provide an academic exchange. A visit structured to require the polemical speaker to discuss and debate the speaker’s opinions may yield a serious academic exchange that is consistent with the school’s values and mission. If a speaker’s visit is structured properly and the topic is worthy of some discussion, few speakers fail to meet a minimum threshold for an invitation to speak.

The last and most difficult curation question is: How should the university and its constituents respond to a speaker who meets the minimum threshold for invitation, but brings more offense and dislocation than necessary? I return to my curation of sexual assault and harassment. That speaker is like a case that describes, in too much detail, the most troubling course of sexual assault or harassment. The case could be used, but can be easily discarded in favor of an example that is just as good, but less troublesome.

 Considering Speakers Who Have Already Been Invited to Speak

Speakers who do not meet the minimum standard for invitation to speak on campus may yet get invited to speak. Many groups may have the power to invite speakers to a campus.[24] The decentralization of the process of inviting speakers to campus has great value. Allowing small groups to invite speakers of interest to them is important. Consequently, decisions regarding a speaker’s value will likely occur at the level of the small group that issues the invitation rather than at the central administration or dean’s level. That is why the university’s values should be clearly and boldly disseminated. If the campus has fairly communicated its ideals regarding the importance of robust and serious academic exchange to campus stakeholders, the possibility or likelihood a speaker’s visit will fall short should be relatively clear.

Fortunately, the issuance of an invitation does not end the conversation about whether a speaker should have been invited. The campus, its constituents, and its leaders have the right and obligation to evaluate whether a speaker’s visit will likely meet the minimum threshold of supporting the university’s mission to use robust academic exchange to discover truth and disseminate knowledge. Having a discussion at an administrative level before a clearly controversial speaker is invited may be preferred, but having a productive discussion after an invitation has been issued may lead to productive discussions before the speaker visits and before any other controversial speaker is invited. The discussion, if sufficiently open, also educates those inside and outside of the university about the university’s mission, and why the university does what it does.

When speakers whose visits are not consistent with the university’s values, ideals, and principles have been invited to campus, the campus has an opportunity to react and reaffirm its values and ideals. Campus constituents can be made aware that the group that invited the speaker appears to have disregarded campus values. The group should be given the opportunity to explain and defend its position. If the group’s explanations are unconvincing, the group should be encouraged to understand that it has squandered an opportunity to advance the university’s mission—the search for truth and dissemination of knowledge. This is not a call for the punishment of or retaliation against the group. It is a suggestion that all should recognize the lost opportunity, the waste of intellectual time, and, when applicable, the squandering of university money.[25] This should occur whether the invitation was issued by  students, staff, faculty, administrators, or a combination of those groups.

D. Protests of Speakers

The last issue to consider is how to respond to speakers who do not advance the university’s mission and who should not have been invited to speak. How should a university and its constituents treat a campus speaker whose visit runs directly contrary to the school’s mission? Any invited campus speaker should be treated civilly and should not be shouted down.[26] However, the speaker’s visit should be treated honestly. A campus speaker who—because of the speaker’s message or the nature of the visit—does not provide an opportunity for serious academic exchange arguably treats the university’s pedagogical aims disrespectfully. Reacting to that is appropriate.

Students, staff, and faculty have at least three options: ignore the speaker, protest the speaker, or counterprogram against the speaker. Each has benefits and drawbacks. Ignoring the speaker risks legitimizing the speaker. The lack of a protest may suggest that the university community is not bothered by the visit or believes that the speaker’s visit is consistent with the university’s search for truth. Protesting the disrespect shown to the university’s values by the speaker and the group that invited the speaker is reasonable. Protesting the event reminds or alerts the university community that the visit is inconsistent with the university ideals, but protesting comes with costs and risks. However, protesting a campus speaker involves time and intellectual capacity that could be used on other matters. Furthermore, if the protest is deemed disruptive, disciplinary action may follow.[27] As important, if the campus speaker speaks out against marginalized groups, the cost of protest may be borne more heavily by students from those marginalized groups who may already be marginalized in the classroom.[28] Counterprogramming may educate (though possibly on an uncontestable topic) and may avoid the risk of discipline, but it likely will use more time than protesting the speaker directly. That may be a misuse, or an inefficient use, of the students’ time and the university’s intellectual capacity.

There are no perfect solutions. However, the university administration’s response to a campus speaker who should not have been invited to speak may be important. If the administration believes the speaker should not have been invited to speak on campus, it can and should explicitly disassociate itself from the visit. If the university administration believes the speaker’s visit is antithetical to the university’s values and says so, students and others may feel less pressure to respond to the speaker. In light of the university administration’s response, ignoring the speaker would not send a message that the university community deems the speaker’s visit acceptable. The university administration is not required to do anything, but it is a key guardian of university values. A refusal to respond to a speaker whose visit disrespects those values would speak volumes about how much or how little the university cares about its values.

Conclusion

This essay calls for the curation of campus speakers. It briefly sketches a very basic structure for determining when a speaker falls below a minimum standard for academic exchange and unquestionably should not be invited to speak. However, it does not fully address a larger curation question: How much higher than the minimum standard should a speaker rise to merit an invitation to speak on campus? Curation and economics suggest that only those who best advance the university’s mission should be invited to speak, and groups should only invite speakers who can engage the university community at a high level. Consequently, the answer to the bigger curation question depends on the number of speakers the university can comfortably absorb over a semester or year. The fewer the number of speakers who can be productively brought to campus, the higher the opportunity cost of bringing a speaker who does not engage the university community and help further its mission and pedagogical goals. These are not easy issues, but they have no chance to be addressed seriously if the issue surrounding controversial campus speakers devolves into a free speech debate.


*    Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law. This essay stems from a presentation on campus free speech the author made at the 2019 Association of American Law Schools Annual Meeting.

       [1].    See Am. Council on Educ., Campus Inclusion and Freedom of Expression: Controversial Speakers 1–3 (2018), https://www.acenet.edu/news-room/Documents/To-The-Point-Controversial-Speakers.pdf [https://perma.cc/NWX8-NAS6] (noting that controversial speakers call upon universities to strike a balance between “the preservation of a respectful learning environment and the academic values of free inquiry and freedom of expression”).

       [2].    For a discussion about moving the campus speech dialogue forward and the value of specifying the debate, see Heidi Kitrosser, Free Speech, Higher Education, and the PC Narrative, 101 Minn. L. Rev. 1987 (2017).

       [3].    Public universities are bound by the First Amendment. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 822 (1995).

       [4].    See Robert M. O’Neil, Free Speech in the College Community, at xiv (1997) (discussing speech values on college campuses); Cass R. Sunstein, Academic Freedom and Law: Liberalism, Speech Codes, and Related Problems, in The Future of Academic Freedom 93, 101 (Louis Menand ed., 1996) (noting private universities are not bound by the First Amendment).

       [5].    See Martin P. Golding, Free Speech on Campus, at viii (2000) (noting the links and nonlinks between free speech on campus and the First Amendment).

       [6].    See O’Neil, supra note 4, at vii (“The very mission of a college or university depends upon broad latitude for viewpoints in the pursuit of truth and understanding.”).

       [7].    See Mark A. Lemley, IP in a World Without Scarcity, 90 N.Y.U. L. Rev. 460, 461 (2015) (“Economics is based on scarcity.”); John M. Newman, The Myth of Free, 86 Geo. Wash. L. Rev. 513, 515 (2018) (“Standard economics takes as a central principle the scarcity of resources. Given scarcity, the allocation of resources becomes the fundamental problem of economics.”).

       [8].    Similarly, we curate our law school curriculum by defining what students must study in the first year of law school and what additional requirements students must meet before graduation. We decide how many hours a first-year course will contain, necessarily constraining choice and leaving other topics for a student’s second or third year, or not at all. Some schools may require students take a clinic. Some of these choices necessarily limit other classes or experiences our students would otherwise have. All of these choices reflect curation based on pedagogical aims and values. We ought not shy away from structuring our campuses and campus speakers consistent with our aims and values. See Golding, supra note 5, at 36–37 (noting that a university must pick and choose the topics worthy of being taught and learned on its campus).

       [9].    Of course, whether and how to teach rape and sexual assault in criminal law courses has been a difficult subject for years. See Susan Estrich, Teaching Rape Law, 102 Yale L.J. 509, 509–16 (1992); Debra Cassens Weiss, Is Teaching Rape Law Too Risky?, ABA J. (Dec. 16, 2014, 7:24 AM CST), http://www.abajournal.com/news/article/is_teaching_rape_law_ too_risky_some_law_profs_drop_the_subject_amid_distres [https://perma.cc /D256-PW4E].

     [10].    For a discussion of opportunity costs and opportunity cost neglect, see Gary M. Lucas, Jr., Behavioral Public Choice and the Carbon Tax, 2017 Utah L. Rev. 115, 132 (2017).

     [11].    The discussion about trigger warnings in the context of sexual assault discussions is ongoing. See Kim D. Chanbonpin, Crisis and Trigger Warnings: Reflections on Legal Education and the Social Value of the Law, 90 Chi.-Kent L. Rev. 615, 631–32 (2015); Terri R. Day & Danielle Weatherby, Speech Narcissism, 70 Fla. L. Rev. 839, 856–57 (2018).

     [12].    Of course, trigger warnings may be appropriate in a variety of settings when course materials may trigger harm. For a discussion of trigger warnings and other relevant topics, see Alexander Tsesis, Campus Speech and Harassment, 101 Minn. L. Rev. 1863, 1868–72 (2017).

     [13].    See Charges Alleging Sexual Harassment, FY 2010–2018, EEOC, https://www. eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm [https://perma.cc/3GPG-YB63] (last visited Apr. 1, 2019) (showing sexual harassment charges filed with the EEOC between 2010 and 2018); Charges Alleging Race and Harassment, FY 1997–2017, EEOC, https://www.eeoc.gov/eeoc/statistics/enforcement/race_harassment.cfm [https://perma.cc/97 4T-4VE3] (last visited Apr. 1, 2019) (showing race-based harassment charges filed with the EEOC between 1997 and 2017).

     [14].    See, e.g., Okoli v. City of Baltimore, 648 F.3d 216, 217 (4th Cir. 2011).

     [15].    Unfortunately, some United States Supreme Court cases with particularly troubling fact patterns must be covered. For example, see Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986).

     [16].    See, e.g., Adams v. Austal, 754 F.3d 1240, 1245 (11th Cir. 2014).

     [17].    The university’s mission can be conceived in various similar ways. See, e.g., Barbara K. Bucholtz, On Canonical Transformations and the Coherence of Dichotomies: Jazz, Jurisprudence, and the University Mission, 37 U. Rich. L. Rev. 425, 468 (2003) (“What we have come to call the academic ‘culture wars’ are, in fact, the dialogic processes through which the university mission—to expand human knowledge and understanding—is accomplished.”); Maureen Ryan, Fair Use and Academic Expression: Rhetoric, Reality, and Restriction on Academic Freedom, 8 Cornell J.L. & Pub. Pol’y 541, 543 (1999) (“The article argues that importing this view into value judgments made in the university context will impoverish the diversity of viewpoints essential to the university’s mission of advancing knowledge.”).

     [18].    Others agree. See Golding, supra note 5, at vii (“[T]he free expression of ideas and opinions, and their critical examination, are central to the work of the university.”).

     [19].    Even universities that pride themselves on welcoming free speech have reasonable limits on speech. See University of California, Berkeley Statement on Free Speech, https:// sa.berkeley.edu/free-speech [https://perma.cc/75P6-ME9G] (last visited Apr. 1, 2019).

     [20].    Even schools that claim to be free speech zones may not be so for staff and other employees.

     [21].    See Richard Delgado & Jean Stefancic, Must We Defend Nazis? 35–36 (2018) (discussing the importance of speech and the free exchange of ideas as necessary to support a campus climate in which all can flourish).

     [22].    If free speech without ramifications is consistent with the university’s values, so be it. Usually, the speaker’s free speech will be protected, while a protester’s speech will not be protected. See, e.g., Todd Richmond, University of Wisconsin Approves Free Speech Policy That Punishes Student Protesters, Chi. Trib. (Oct. 6, 2017, 8:19 PM), https://www.chicago tribune.com/news/nationworld/midwest/ct-university-of-wisconsin-protest-punishment-20 171006-story.html [https://perma.cc/82ZQ-KGVA].

     [23].    See Golding, supra note 5, at 44 (“We do of course pay a price for the university’s marketplace of ideas. Falsehoods and unacceptable ideas inevitably do get aired, and it is the job of the critical community of scholars, operating in a marketplace of ideas, to expose them as such in order to advance knowledge.”).

     [24].    Speakers invited by student groups may trigger the most contentious speech issues. See Erica Goldberg, Competing Free Speech Values in an Age of Protest, 39 Cardozo L. Rev. 2163, 2201–02 (2018) (discussing the Berkeley Republicans’ invitation of Milo Yiannopoulos to speak on campus).

     [25].    Controversial speakers may trigger extra security costs and other costs. See Catherine J. Ross, Campus Discourse and Democracy: Free Speech Principles Provide Sound Guidance Even After the Tumult of 2017, 20 U. Pa. J. Const. L. 787, 803–04 (2018) (discussing University of California, Berkeley’s security costs for Milo Yiannopoulos’ visit).

     [26].    Some may disagree, but unless the university administration stops the speaker from speaking, allowing the speaker to speak is the proper response to a speaker who has been invited to campus to speak.

     [27].    For a discussion of the University of Wisconsin’s speaker disruption policy, see Parker Schorr, UW Defines Acceptable, Unacceptable Protest in Recently Updated Guidelines, Badger  Herald  (Sept. 12, 2018),  https://badgerherald.com/news/2018/09/12/uw-defines-acceptable-unacceptable-protest-in-recently-updated-guidelines/ [https://perma.cc/9KR9-94 Y9].

     [28].    See Delgado & Stefancic, supra note 21, at 24 (noting that language that “demoralizes and distracts minorities” can make it harder for members of those groups to get a full education).

Can You Truly Be Happy in Law School? An Analysis of Law School Advice

Michael Conklin, Can You Truly Be Happy in Law School? An Analysis of Law School Advice, 53 U. Rich. L. Rev. Online 63 (2019).

Click here to download PDF.


Michael Conklin *

How to Be Sort of Happy in Law School.
By Kathryne M. Young. Stanford University Press, 2018.

Book Review

There are many books available to help students navigate the more concrete aspects of law school, such as studying, exam strategies, how to brief a case, making law review, and on-campus interviews. Kathryne M. Young, in her 2018 book, How to Be Sort of Happy in Law School,[1] primarily focuses on the more intangible side. The 300-page book dedicates only forty-three pages to the topics of studying and exam strategies. Young’s format frees up space to cover the more amorphous aspects of law school. This review will analyze the book’s coverage of critiques of the law school structure, indoctrination attempts, and how to maintain a healthy perspective.

The most enlightening part of the book is found in its critique of law school pedagogy. Young criticizes the almost-universal law school practice of grading solely on the results of a final exam. The lack of any assessments throughout the semester leading up to the final is described as “lousy pedagogy.”[2] Much like a boss who gave you a pile of work and said, “Don’t talk to me until I review your finished product in six months,” this methodology sets people up for failure.[3] It also fosters unnecessary anxiety, disproportionately punishes those who simply had one bad day, and disproportionately favors those students with connections about how to perform well on law school exams (because other students will take more time to figure it out).[4]

Criticism of the one-assessment method of law school is nothing new to anyone who has gone through the experience. Fortunately, Young goes on to provide other, more novel critiques. These include: (1) how the focus on competition erodes ethical decision making; (2) how law school incentivizes pessimism over optimism; (3) the Socratic method, and (4) the overall dispassionate view of the subject.

Young refers to research that suggests law school acts to erode ethical decision-making abilities because it focuses mostly on “competitive processes to the extent that they become the only goal.”[5] There is also related research that found students’ subjective well-being consistently decreases throughout their three years in law school.[6] In addition, students become less devoted to community service during this time.[7] However, if law school is intended to prepare students to become lawyers, this focus on the competitive process may be necessary. The practice of law is often competitive due to the zero-sum-game nature of trial outcomes. Therefore, one could argue that the competitive reputation of law schools serves a valuable purpose, deterring those who are not suited for the profession.

In most professions, such as the practice of medicine, optimists outperform pessimists; the practice of law is the exception to this rule.[8] This should come as no surprise when one considers how medical doctors are problem solvers and lawyers function more as problem finders. In law, this pessimism is rewarded because lawyers need to anticipate all potential, horrible outcomes in order to avoid them.[9]

It is unclear exactly how beneficial Young’s critique of law school pedagogy is in a book designed to aid students in making their experience more pleasant. Yes, prospective students should be aware of the many challenges law school brings. Beyond that, going into detail about the shortcomings of the process provides little benefit to students.

The book accurately echoes the majority of research on the lack of effectiveness of the Socratic Method in large class settings, such as in law school.[10] More specifically related to law school classrooms, Young points out that the Socratic Method does not effectively mimic the practice of law as some proponents claim.[11] Furthermore, what most law professors refer to as the Socratic Method is more accurately described as “cold calling.”[12] Simply asking students to recite minute details from a case is not what Socrates had in mind.[13]

Likely the weakest criticism of law school methodologies in the book is Young’s complaint about how law school addresses what the law is, not what it should be.[14] While this may upset some idealists, what is the alternative? If law schools focused more on what the law should be and less on what it is, this would be a disservice to the legal profession, which focuses significantly more on the latter than the former. Furthermore, given the extreme lack of diversity of thought in faculty at some law schools,[15] discussing what the law should be would likely resemble biased indoctrination more than legal education.

Unfortunately, much of the book goes beyond advice to improve the law school experience and borders on proselytizing to law students about Young’s personal beliefs. For example, Young laments about how not enough people at her law school joined a protest designed to persuade Stanford to risk losing federal funds by not allowing Judge Advocates General to perform on-campus interviews while “Don’t Ask, Don’t Tell” was still official policy.[16] In other places, Young instructs law students who think they witnessed a woman being judged, ignored, or excluded for her assertiveness to confront the person responsible.[17] She also advises law students to commit “microinclusions” to counteract microaggressions.[18]

Young is also very passionate about pointing out how law students who come from affluent backgrounds will frequently have an advantage over those who do not.[19] Yes, if your parents buy you a suit for interviews, a replacement when your laptop breaks, and have friends who are lawyers who give you advice, that will help law school go more smoothly. But it is unclear what benefit Young wants to impart to the reader by constantly bringing up this self-evident truth. She runs the risk of scaring disadvantaged demographics away from law school (and therefore also the legal profession). This is a shame because there is no reason to believe that the relative advantage of affluence is exclusive to law school. Furthermore, it is reductionist to engage in the stereotype that just because someone’s parents are wealthy, they automatically have their financial needs met. Young concludes that the advantage affluent students have is something law schools need to address.[20] Absent from the book is any explanation as to how law schools should go about addressing this perceived issue.

Young also gives personal opinions couched as advice on controversial subjects, such as the existence of social privilege based on whiteness.[21] One example provided is that when white people think they view black people as just people and not black people, Young asserts this is “simply not true.”[22] And to the contrary, this mindset allegedly works to strengthen white privilege. Much like the comments provided for her position on affluence, it is reductionist and harmful to engage in the practice of making assumptions about people based solely on their skin color.

While it can be beneficial to hear an individual’s perception of his or her law school experience, Young occasionally oversteps the line between giving advice on how to be happy in law school and indoctrinating the reader with her personal beliefs on controversial subjects. This would be like someone writing a law school advice book that advises the reader to join the Federalist Society. That author may personally prefer that everyone subscribe to that organization’s beliefs, but joining the Federalist Society is not good advice for all law students.

Despite these personal preference mandates throughout the book, Young does a good job of not basing advice solely on her personal experiences. Many statistics and quotes are provided from her extensive research. A few examples of the diverse quotes  from law students are:

“Law school can make you into the worst version of yourself;”[23]

“No matter how hard I study, I feel like I’m barely managing to tread water;”[24]

“I went to law school with the intention of helping people, but sometimes it seems like the law just makes it worse;”[25]

“I can’t get over that panicky feeling, [of being called on] whether I am 100 percent prepared or no;”[26]

“[You can] be smart, do everything right, and not get an A.”[27]

These quotes create a sense of camaraderie and should help the reader realize that despite the outward appearance of their classmates, most of them are struggling with the same things they are.

As the title of the book suggests, its primary focus is not on how to get good grades. Young even refers readers to Getting to Maybe: How to Excel on Law School Exams for a more in-depth look at that subject.[28] Young focuses more on the soft topics such as encouraging law students to consider not only how to get on law review and obtain on-campus interviews with big firms, but also to first question their motivations behind these goals. Young does this in different ways. She encourages students to consider not only what they want to do in the future, but also how they want to feel in the future.[29] She then instructs students to take a step back and examine why they want to feel that way.[30]

At points, however, Young may overstate the importance of listening to your feelings.[31] One such example is the suggestion of implementing the following test to determine if law students should sign up for a specific extracurricular activity:

Pretend that if you do Thing X, you will not be allowed to talk to anyone about it or list it on your resume. Would you still want to do it? If not, your motivations for it might be mostly extrinsic, which I would suggest means that the activity is not worth your time.[32]

While reflecting on your motives is certainly worthwhile, this type of standard would result in a drastic drop in law school enrollment. After all, who would go to law school if they could not use their juris doctorate to help get a job afterwards? Sometimes in law school, as in life, you just need to do some things that are not enjoyable in order to reap some later reward.

Given the sprawling nature of the subject, the advice covers a wide variety of subjects. To address the issue of students struggling with not being the smartest person in the class for the first time, Young advises, “Feeling like you are no better equipped than anyone else is a sign that you are exactly where you are supposed to be.”[33] She also encourages students to focus more on becoming better versions of themselves rather than trying to be better than their classmates.[34]

Other topics addressed are: how many aspects of law school are portrayed as make-or-break moments in your career,[35] when in reality they are not; how to deal with “imposter syndrome,” which is essentially the practice of belittling your own success;[36] how the fear of social stigma causes law students to not seek help from peers, administrators, professors, or family members;[37] and how to assess whether you should drop out of law school.[38] And of course, no matter how much your professor emphasizes not using commercial study aids, you should.

The tone of the book is refreshingly pleasant given the heavy subject matter it covers. Young utilizes a very conversational approach, and there is humor throughout (such as comically pointing out that if you stole the money to pay for law school you would likely be let out of prison before your classmates paid off their loans).[39]

Overall, Young does an excellent job preparing the reader to navigate the unique emotional challenges law school presents. The coverage of this topic is unmatched in any other law school advice book. While the book’s advice on exam strategy is helpful, it is also very limited. Therefore, a reader concerned with improving his or her grades would be well advised to supplement this book with Getting to Maybe: How to Excel on Law School Exams. This book is an invaluable resource for anyone who wants to be “sort of” happy in law school.


* Assistant Professor of Business Law, Angelo State University. J.D., 2007, Washburn University School of Law; M.B.A., 2004, Oklahoma City University; Postgraduate Cer-tificate in Law, 2010, University of London; Masters in Philosophy of Religion, 2015, Biola University. I can be reached at: mconklin@coloradomesa.edu.

       [1].    Kathryne M. Young, How to Be Sort of Happy in Law School (2018).

       [2].    Id. at 13.

       [3].    Id.

       [4].    See, e.g., id. at 248 (“Students with lawyers in their families, legal writing experience, an intuitive knack for legal analysis, or who are clued in early on about study strategies, are likely to do better on their first round or two of exams.”).

       [5].    Id. at 39 (quoting Lawrence S. Krieger & Kennon M. Sheldon, What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success, 83 Geo. Wash. L. Rev. 554, 568 (2015)).

       [6].    Id. at 38.

       [7].    Id.

       [8].    Id. at 39.

       [9].    Id.

     [10].    One such study on legal education reform concluded that there is “no support for the Socratic Method as it is practiced in law schools.” Edward Rubin, Curricular Stress, 60 J. Legal Educ. 110, 121 (2010).

     [11].    Young, supra note 1, at 210.

     [12].    See Elizabeth Garrett, Becoming Lawyers: The Role of the Socratic Method in Modern Law Schools 199 (1997), as reprinted in Elizabeth Garrett, The Socratic Method, U. Chi. L. Sch., https://www.law.uchicago.edu/socratic-method [https://per ma.cc/4L26-NFPL] (last visited Apr. 2, 2019) (discussing what the Socratic Method looks like in modern law schools); M.T., The Cold Call, Yale L. Sch., https://law.yale.edu/ad missions/profiles-statistics/student-perspectives/cold-call [https://perma.cc/HH5H-W47A] (last visited Apr. 2, 2019) (describing the practice of “cold calling”).

     [13].    Id. (describing the rationale behind Socrates’ method and its effectiveness).

     [14].    Young, supra note 1, at 40–41.

     [15].    For example, a 2004 study found that the University of California, Berkeley, had a roughly ten to one faculty ratio of Democrats to Republicans. Daniel B. Klein & Andrew Western, How Many Democrats per Republican at UC-Berkeley and Stanford? Voter Registration Data Across 23 Academic Departments 5 (Feb. 9, 2005) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=664045 [https://perma.cc/T9 8G-344R].

     [16].    Young, supra note 1, at 72–73.

     [17].    Id. at 84.

     [18].    Id. at 177–78.

     [19].    Id. at 94.

     [20].    Id.

     [21].    Id. at 88.

     [22].    Id.

     [23].    Id. at 16.

     [24].    Id. at 24.

     [25].    Id. at 40.

     [26].    Id. at 212.

     [27].    Id. at 24.

     [28].    Id. at 246; see Richard Michael Fischl & Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999).

     [29].    Young, supra note 1, at 34.

     [30].    Id.

     [31].    See id. at 68.

     [32].    Id. at 68.

     [33].    Id. at 25.

     [34].    Id. at 26.

     [35].    See, e.g., id. at 248–49.

     [36].    See id. at 21–24.

     [37].    See id. at 27.

     [38].    See id. at  47–61.

     [39].    See id. at 223–25.

Life, Liberty, and the Pursuit of Paid Parental Leave: How the United States Has Disadvantaged Working Families

Life, Liberty, and the Pursuit of Paid Parental Leave: How the United States Has Disadvantaged Working Families

Kate Miceli, Life, Liberty, and the Pursuit of Paid Parental Leave: How the United States Has Disadvantaged Working Families, 53 U. Rich. L. Rev. Online 33 (2019).

Click here to download PDF.


Kate Miceli *

Introduction

Picture this: you are pregnant and your company does not provide paid parental leave. You save up as much of your sick and vacation days as you can, forfeiting taking days off while you are pregnant and exhausted to get at least one paycheck during your leave. Once you are on maternity leave, you are filled with anxiety about your financial situation because you need two paychecks to support the family and your partner’s income is not enough. You are forced to go back to work before you are physically and emotionally ready. This is the reality for many parents in the United States.[1]

As of 2018, the United States is the only industrialized nation without a federal paid parental leave policy in place.[2] To put that statistic into perspective, of the 193 countries in the United Nations, only the United States, New Guinea, Suriname, and a few South Pacific Islands do not offer paid parental leave.[3] This article argues that the United States should implement a federal paid leave policy that covers parental, family, and medical leave. Specifically, this article argues for the importance of establishing a federal parental leave policy that is paid, gender-neutral, and covers all employees. Part I of this article explains the current state of federal parental leave in the United States, including which workers benefit from paid leave, and public support for paid leave policy among Americans. Part II of this article details what an ideal parental leave policy should look like. Part III explores the current paid parental leave options in California, New Jersey, New York, Rhode Island, Washington, and Washington D.C., as well as two pieces of proposed legislation on the federal level. Overall, this article argues that it is critical for the United States to pass a comprehensive paid parental leave program, specifically the FAMILY Act, to eliminate gender bias in the workplace and support all families’ financial and caregiving needs.

I. Current State of Federal Parental Leave in the United States

A. The Family and Medical Leave Act

The United States’ current, and only, policy that relates to parental leave is the Family and Medical Leave Act (“FMLA”),[4] which was signed into law by President Bill Clinton in 1993.[5] The FMLA provides eligible employees with up to twelve weeks of unpaid, job-protected leave for specified parental, family, or medical issues.[6] Employees are considered eligible if they have been employed for at least twelve months by the employer and worked at least 1250 hours with that employer during the previous twelve-month period.[7] Additionally, in order to qualify under the FMLA, the employer must employ fifty or more employees for twenty or more calendar workweeks in the current or preceding calendar year.[8]

The FMLA provides three types of leave for employees: parental, family, and medical. Parental leave is defined as leave for new parents to take care of or bond with a new child after birth or adoption.[9] The FMLA also includes foster care within the definition of parental leave.[10] Family leave is leave taken to provide care for a seriously ill or injured family member.[11] The FMLA provides family leave to care for a spouse, son, daughter, or parent of the employee.[12] Medical leave, sometimes referred to as personal medical leave, is leave taken by the employee to address their own serious health condition.[13] While creating a policy that addresses all three types of leave is critical, this article’s focus will be solely on the importance of parental leave.

B. Who Has Access to Paid Leave?

The individuals covered under paid leave tend to be full-time workers in management-level positions in large companies with higher wages.[14] As of March 2018, only 17% of workers in the United States have paid leave through their employers.[15] Full-time workers are more likely to have access to paid leave than part-time workers.[16] The workers most likely to have access to paid leave work in management, business, or financial positions.[17] Additionally, teachers and registered nurses are more likely to have access to paid leave through their employer.[18] Individuals who work in the service industry are less likely to have paid leave, with 11% reporting access to paid leave through their employer.[19] Additionally, only 7% of individuals who work in industries involving construction, farming, fishing, forestry, and extraction have access to paid leave.[20]

Larger companies tend to provide more access to paid leave. Twenty-five percent of workers in companies with 500 people or more have access to paid leave.[21] Twenty-two percent of workers in companies with 100 people or more have access to paid leave.[22] Smaller companies provide less paid leave than their larger counterparts, with 12% of workers in companies with under fifty employees receiving paid leave.[23] However, the starkest contrast in access to paid leave lies in employee’s earnings. Of the top 25% of wage earners in the United States, 28% report having access to paid leave.[24] Compare that to the lowest 25% of wage earners, where 8% of employees report having access to paid leave.[25] The difference is even greater between the highest 10% of wage earners—at 30% with access to paid leave—and the lowest 10% of wage earners—at 5% with access.[26]

While these numbers have risen over the past year, the most notable gains in access to paid leave have benefited more professional workers and higher-wage earners.[27] Compared to 2017, the highest-paid private sector worker went up by seven percentage points, while the lowest-paid private sector worker only went up four percentage points.[28] This trend is not limited to this past year. Since 2012, top wage earners have increased their access to paid leave by eleven percentage points while the lowest-wage earners have only increased by just one percentage point.[29] Overall, this data reflects a theme. If you are a higher-wage earner with a professional or management job, you are more likely to get paid leave. If you are a lower-wage earner at a service or construction job, you are less likely to get paid leave. This inherent inequity among workers receiving paid leave is one of the many reasons advocates believe passing a paid parental leave plan is critical.

C. The Shortcomings of the FMLA

Workers’ rights advocates are critical of the FMLA because they do not believe it provides adequate leave for the majority of employees.[30] Specifically, the FMLA is not an ideal policy for workers because it is unpaid and does not cover small businesses or part-time workers. This disproportionately impacts low-wage workers who suffer the most without a federal paid leave plan.[31]

One of the primary problems advocates have with the FMLA is that it only provides unpaid leave. Unpaid leave is not feasible for many workers because they cannot afford to lose a paycheck.[32] In a survey of workers covered under the FMLA, the top reason for not taking leave was the response “could not afford.”[33] This is especially problematic as many families cite a baby as the most expensive health event during their childbearing years.[34] Not being able to afford leave causes a domino effect of problems for workers, specifically women and low-wage workers. Under the FMLA, low-wage and part-time workers are more likely to be granted unpaid leave or no leave at all.[35] This can cause major financial problems for low-wage families who are more dependent on their paycheck and less likely to be able to afford childcare.[36]

Another issue labor advocates have with the FMLA is the number of workers not covered by the current law.[37] As stated above, the FMLA only covers larger businesses with fifty or more employees and full-time workers.[38] Employees of small businesses with fewer than fifty workers and part-time employees are excluded from the FMLA.[39] Additionally, an employee has to work for the employer for at least twelve months, for at least 1250 hours in those twelve months before they qualify, meaning newer employees could be excluded.[40] While small private-sector businesses can choose to provide paid leave for their employees, there is no requirement they do so.[41] Because of these exclusions under the FMLA, it is estimated that 40% of workers do not receive any type of FMLA protections.[42] The number of individuals excluded from the FMLA is particularly concerning due to the rise of low-wage and “gig” economy jobs in the past decade.[43]

Overall, the unpaid and exclusionary nature of the FMLA disadvantages many families who could greatly benefit from paid leave. This is even more troubling considering the low-wage workforce is growing and tends to be primarily people of color and women.[44] However, while the economic consequences of the FMLA is bleak for many workers, voters and legislators believe it is time to make a change and create a federal paid leave policy.

D. Support for Paid Leave Among Voters and Legislators

Labor advocates are not the only supporters of a paid parental leave policy. Studies have shown that voters widely support paid leave. According to a 2018 survey commissioned by National Partnership for Women & Families, 84% of voters support a comprehensive national paid family and medical leave policy for all employees.[45] Of that group, 94% are Democrats, 83% are Independents, and 74% are Republicans, showing that this idea has high bipartisan support.[46] Support for paid leave has been consistently high over the past couple of years. For example, a Fortune-Morning Consult poll taken in 2016 showed that 74% of voters supported requiring employers to offer paid parental leave for new parents.[47] Additionally, a 2015 New York Times survey on income inequality and workers’ rights reported 80% of respondents favored requiring employers to offer paid leave to parents of new children and employees caring for sick family members.[48] Of those respondents, 88% were Democrats, 80% were Independents, and 71% were Republicans.[49]

The high-level of support for paid leave among voters was reflected in the platforms of the candidates in the 2016 presidential election. Candidates Donald Trump, Marco Rubio, Hillary Clinton, and Bernie Sanders all proposed paid leave policies during their campaigns.[50] Although each of these plans ranged in length, with Rubio supporting four weeks of paid leave and Clinton and Sanders favoring twelve weeks, it showed that each candidate felt paid leave was important enough to discuss on the campaign trail.[51] This is a significant change for Republicans, who have not always been supportive of paid leave.[52]

Former Republican President George H.W. Bush vetoed the FMLA twice.[53] Although Bush had been supportive of paid leave during his 1988 presidential campaign, he vetoed the FMLA in 1990 because he did not believe the federal government should mandate companies to provide certain benefits.[54] In 1992, he vetoed the FMLA again, claiming it would impose a burden on businesses and dampen the growth of the economy and new jobs.[55] Former Republican President George W. Bush expanded FMLA protections to include families of wounded military personnel, but made no effort to create a paid leave plan for workers covered under the FMLA.[56] The attitude among Republicans has changed significantly since both Bush presidencies. In September 2015, Senator Rubio became the only Republican primary candidate to support paid leave.[57] His proposal involved a tax credit for employers who offered at least four weeks of paid leave.[58] President Trump also called for paid leave on the campaign trail, proposing six weeks of paid maternity leave for mothers who did not already receive leave from employers.[59] He also mentioned the need for paid leave in his 2018 State of the Union address, which shows it was more than a campaign talking point.[60]

II. What Does an Ideal Paid Parental Leave Program Look Like?

As shown above, paid parental leave has strong support from labor advocates, voters, and legislators. However, it is critical to determine what a paid leave plan should look like and how it would be executed. While many Americans are generally supportive of paid leave, they are rarely asked to detail who should be covered and how the funding should be managed. According to many labor advocates, an ideal paid leave plan pays all employees equally, is gender-neutral, affordable, and provides job protection.[61] Because affordability and providing job protection are clearly beneficial without detailed explanation, this article will only detail the importance of inclusivity of all employees and gender-neutrality.

A. An Ideal Policy Pays All Employees Equally

An ideal policy must both pay employees and provide appropriate compensation for all levels of employees. As stated in an earlier part, full-time, high-wage employees tend to benefit the most under various companies current paid leave structures while part-time and low-wage employees are left in the dark.[62] A study by the Pew Research Center found that 62% of households with income under $30,000 received no pay while on leave.[63] Compare that number to the 26% of households with income over $75,000 that received no paid leave.[64] This gap in who is covered by paid leave policies is created because there is no federal paid leave plan, causing many businesses to design their own.[65] It is not uncommon for corporate employees at larger companies to boast amazing paid leave policies, while hourly employees receive little to no paid leave.[66]

For example, the Ford Motor Company provides six to eight weeks of paid leave for corporate employees while offering zero weeks of paid leave to hourly employees.[67] There is also a divide between full-time and part-time workers, with many part-time workers receiving zero weeks of paid leave. Full-time female workers at the company Amazon can receive up to twenty weeks of paid leave, whereas part-time female workers receive zero.[68] This provides little protection to low-wage workers, who are often seen as easily replaceable in the workforce.[69]

Creating a policy that covers all workers equally is critical to solving the inherent economic inequity in our paid leave system. Under the FMLA, more than half of low-wage workers report losing all of their income while on leave.[70] As many as 95% of low-wage workers report having no access to any type of paid leave in their workplace.[71] Anita, a veterinary technician, stated that when she took leave, her family’s debt increased and they fell behind on bills.[72] Logically, it does not make sense to compensate high-wage workers while leaving low-wage workers penniless. Low-wage workers are more likely to work in jobs with fewer benefits to rely on to make up for a lack of paid leave.[73] They also have limited flexibility within their jobs and fewer financial resources.[74] The lack of access to paid leave for low-wage workers also tends to exacerbate the racial wealth gap, creating an even bigger divide between white families and families of color.[75]

A lack of paid leave tends to negatively impact workers, particularly low-wage workers. Meanwhile, access to paid leave provides improved child and parental well-being and greater economic security for low-wage workers.[76] A federal paid leave policy should be created with equality in accessibility in mind. The current imbalance between high-wage and low-wage workers’ access to leave has created further divides in our economy. All employees should have equal access to paid leave.

B. An Ideal Policy Is Gender-Neutral

A federal paid leave policy must be gender-neutral, meaning any person regardless of their gender is allowed to take leave if they meet all the requirements. It is critical that parental leave is gender-neutral for several reasons. First, it prevents discrimination against LGBTQ couples who may otherwise be excluded from “mothers only” or birth parent policies.[77] Second, it benefits the health and financial future of women and prevents hiring discrimination. Third, it allows fathers to take leave and leads to more equitable divisions of the caregiving responsibilities.

  1. LGBTQ Families

LGBTQ parents can face discrimination if their employer’s parental leave policy is not gender-neutral. Employers may only provide paid leave for new birth mothers as opposed to new parents.[78] This type of policy can discriminate against dual-father households and adoptive parents because neither are covered under that policy.[79] In a 2018 survey of LGBTQ employees, only 45% indicated that their employers have LGBTQ-inclusive leave policies.[80] Additionally, fewer than one-third of respondents have access to any form of paid parental leave.[81]

 

For example, Brent Wright and his husband welcomed their first daughter in 2009.[82] Because they are both men, neither had access to their company’s paid maternity leave policy.[83] Wright and his husband had to patch together sick and vacation days.[84] Wright eventually had to negotiate a leave of absence to take care of their new daughter.[85]

Wright is not alone. Niko Walker, a Starbucks employee, discovered that the company’s leave policy provided six weeks of paid leave for new birth mothers but none for fathers or adoptive parents.[86] He was shocked considering he had transitioned while employed by Starbucks and was happily supported by managers and the company.[87] He stated it was the first time as an employee when he had felt something “was overlooked” by corporate.[88]

Starbucks is not the only company with this policy; there is a pattern of companies providing discriminatorily gendered paid leave. In a survey of forty-four of the largest employers in the United States, seventeen of the companies left out all or some fathers and adoptive parents in their paid leave policies.[89] Additionally, seven of the forty-four companies provided significantly less paid leave for fathers and adoptive parents compared to birth mothers.[90]

These policies discriminate against dual-father households, they also discriminate against adoptive parents. LGBTQ families are more likely to adopt or foster children.[91] Same-sex couples are four times more likely than different-sex couples raise an adopted child and six times more likely to raise a foster child.[92] If adoptive and foster parents are not covered under a company’s paid leave policy, it can prevent new parents from taking much needed leave. In a 2018 survey of LGBTQ employees, 65% of the respondents stated their primary concern about taking leave was the financial burden of taking unpaid time off.[93] This is even more of a concern for LGBTQ working people of color.[94] Seventy-one percent of respondents of color stated taking time off without pay is not financially possible for them.[95] As demonstrated above, unpaid leave is more likely to be a reality for LGBTQ employees as companies are more likely to exclude fathers and adoptive parents from paid leave policies. Therefore, a lack of gender-neutral policies disproportionately impacts whether LGBTQ parents are able to take time off when they have, adopt, or foster children.

  1. Women

When parental leave policies are not gender-neutral, women disproportionately face health issues, financial problems, and hiring discrimination. Deep cultural biases about who should take leave still exist in today’s world. According to the Pew Research Center, 82% of Americans believe mothers should receive paid leave following the birth or adoption of a child.[96] However, only 69% believe fathers should receive the same benefit.[97] These cultural biases seep into the workplace and create a stigma that women are more likely to use leave after the birth or adoption of a child and therefore should be the primary beneficiaries.

a. Health

Without paid leave, women can be forced to choose between their health or their paycheck.[98] Studies have shown an ideal amount of paid parental leave for mothers ranges from three to six months.[99] However, 23% of mothers are back at work within two weeks of having or adopting a child because they cannot afford to take several weeks off.[100] This quick turnaround has negative health effects on both mothers and their children. Research suggests longer periods of leave lead to increased duration of breastfeeding, lowers the risk of infant mortality, and increases the likelihood of the baby receiving vaccinations.[101]

Every major medical organization encourages women to exclusively breastfeed their children for the first six months.[102] However, short amounts of leave and inflexible work schedules impact a mother’s ability to breastfeed their child.[103] In a survey of new mothers, almost half stated their employment impacted their decision to breastfeed.[104] Additionally, mothers who return to work before six weeks postpartum are three times more likely to stop breastfeeding than women who return later.[105] This has a disproportionate effect on low-wage workers and mothers of color.[106] Low-wage workers are the least likely to have access to paid leave and most likely to have inflexible schedules, making breastfeeding difficult.[107] Additionally, black and Latina mothers are less likely to have access to paid leave, which means they are less likely to breastfeed.[108] Fifty percent of white women are likely to have access to paid leave while only 43% of black women and 25% of Latina women have access.[109]

While statistics are critical for analyzing the depth of these issues, real life examples tend to help people understand just how traumatizing short breastfeeding cycles can be. Natasha Long was back at work three weeks after having her third child but she was determined to breastfeed.[110] She worked in a factory that offered no lactation room, regularly forcing her to go to her truck multiple times a day to pump.[111] She sobbed while sitting in her truck because she wanted to be bonding with her child rather than fearing a co-worker seeing her exposed in the cab of her truck.[112] The emotional strain of returning to work so quickly after having her child deeply affected Long and led to other health problems.[113]

Paid leave and breastfeeding are linked. Research has shown that paid leave has a significant impact on the length of time mothers breastfeed.[114] In a study of California’s paid leave program, mothers who participated in the program breastfed for twice as long as mothers who did not.[115] Access to paid leave increases the amount of leave mothers take, which in turn increases breastfeeding duration.[116] Breastfeeding carries many benefits for families, such as increased bonding between new mothers and children, strengthening a child’s immune system, and reducing the risk of several health problems.[117]

In addition to breastfeeding, longer periods of leave lead to lower infant mortality and increases in necessary vaccinations.[118] When children’s parents have access to leave, they are more likely to experience better health outcomes due to individualized care from their parents and increased parental awareness and education.[119] Parents are more likely than health care professionals to notice slight differences in their child, which could head off future health care problems if illnesses are caught early.[120] Lastly, when discussing the advantage of paid leave on women’s maternal health, the disparate maternal mortality rate for black mothers cannot be overstated. Black women face much higher rates of maternal mortality and complications due to pregnancy than white women.[121] Additionally, black women are much less likely to take longer periods of leave, meaning their children also miss out on the many health benefits paid leave can provide.[122]

b. Financial

In addition to the series of health issues stemming from a lack of paid leave, women face financial disadvantages without access to paid leave.[123] The labor force has changed dramatically over the past fifty years, while our stigmas about women and caregiving remain the same. Women’s participation in the labor force—specifically, mothers of young children—has increased, meaning the number of stay-at-home mothers has decreased.[124] However, policies providing only women with paid leave remain constant.[125] This places an automatic assumption on mothers that they will take leave, regardless of pay, and take up the majority of the caregiving responsibilities during leave and upon returning to work.[126] This leads to decreased workforce engagement as well as fewer opportunities for promotions and raises.[127]

A key reason paid leave policies should be gender-neutral is the division of caregiving responsibilities, which can affect women’s long-term professional goals. According to a recent report by Lean In and McKinsey research, women are more likely to believe they participate more in housework and childcare than their partner.[128] This phenomenon is exacerbated by the fact that women are the primary takers of parental leave and expected to maintain their caregiving responsibilities upon returning to work.[129] But the negative effects of gendered paid leave do not stop there. After coming back from leave, women are more likely to continue shouldering the bulk of caregiving responsibilities, which leaves less time for advancing in the workplace.[130] Alison Woods Brooks, a Harvard Business School professor, says, “Practically speaking, if you’re doing more at home, you can’t do more at work.”[131]

Providing gender-neutral paid leave will help prevent the imbalance in leave take-up and caregiving responsibilities. For example, when the company Etsy implemented a gender-neutral paid leave policy, it discovered that equal numbers of men and women were using the policy.[132] Similarly, when California implemented a state-wide gender-neutral paid leave policy, new fathers taking parental leave doubled.[133] Furthermore, when fathers take parental leave, they are more likely to participate in childcare and household chores both during leave and throughout the child’s life.[134]

In addition to more equitable division of caregiving responsibilities, paid leave keeps mothers in the workforce and provides more hours and higher wages.[135] If mothers have access to paid leave, they are more likely to return to their previous employer and maintain their current salary.[136] Women who have access to paid leave are 40% to 69% more likely to return to work after giving birth.[137] This increases life-time earnings and retirement savings because women are returning to their same jobs and maintaining their salaries.[138] This is critical as many mothers, especially mothers of color, are likely to be the primary breadwinners in their families.[139] In 2013, nearly two-thirds of families relied entirely or in part on a mother’s income.[140] Having access to paid leave helps mothers stay in the workforce and provide for their families.[141] In short, providing paid leave to women leads to increased labor participation, higher wages, and helps eliminate gendered caregiving bias.

c. Hiring and Employment Discrimination

When employers view women as the primary users of paid leave policies, they are more likely to discriminate against women in hiring and employment decisions.[142] Women have said that revealing their pregnancy to their supervisors caused employers to cut their hours or demote them.[143] Although pregnancy discrimination is illegal, it is widespread across all sectors of the workforce.[144] However, gendered leave policies can affect women even when they are not pregnant. If employers view women as the primary users of a leave policy, this could lead them to hire a man over a woman because it is less likely they will take leave.[145] Having a gender-neutral leave policy eliminates the desire for employers to discriminate against female workers because all workers are entitled to paid leave.

  1. Men

Similar to women, men also face gender bias and unfair stigmas that affects their ability to take parental leave.[146] Men tend to take shorter periods of paid leave to avoid workplace stigma and lessen the financial burden on their families.[147] Additionally, men are much less likely to have access to paid leave, or sometimes any leave at all.[148] This creates an imbalance in the caregiving responsibilities between parents, which can remain throughout the child’s life.[149] Additionally, there are several long-term benefits to men taking parental leave.[150]

Men often face workplace stigma when they take parental leave; as discussed earlier, Americans are more likely to support women receiving paid parental leave than men.[151] However, even Americans who are supportive of men and women receiving paid leave believe women should receive considerably more time off than men.[152] This belief leads to both outdated workplace policies providing leave for mothers only or more leave for mothers than fathers. According to a study by the Department of Labor, men are less likely to have paid parental leave policies than women.[153] As discussed earlier, it is common practice for many employers to provide paid parental leave for mothers and unpaid parental leave for fathers.[154] Only 20% of private sector workers are employed by companies that offer paid parental leave to most male employees.[155] Because fathers are less likely to have paid parental leave, they tend to take shorter amounts of leave to avoid financial troubles.[156] According to the Department of Labor, 70% of fathers take ten days or less of parental leave.[157] Another study found that only one in twenty fathers took more than two weeks off after the birth of a child with 60% of low-income fathers reporting they took zero days off.[158]

In addition to the lack of availability of leave, fathers feel pressured not to take time off because of bias in the workplace.[159] While women feel an inherent pressure to take time off work to care for their children, men feel pressure to take as little time off as possible. In a survey of highly educated professional fathers who had access to paid parental leave, a large number did not take their full amount of leave.[160] When asked why they choose not to take all of their designated paid time off, they cited workplace pressures and/or a fear of being perceived as less dedicated employees.[161]

Men taking parental leave can lead to lifetime benefits for themselves and their families. Similar to maternity leave, longer paternity leave leads to increased bonding and engagement between father and child.[162] Fathers who took leave for two weeks or longer were more likely to be involved in their child’s care nine months after birth.[163] This can lead to improved educational attainment for the child and reduce maternal stress.[164] Additionally, longer paternity leave increases a father’s involvement with the child and caregiving responsibilities.[165] Fathers who take longer leave are more likely to divide household chores and caregiving equally with their spouse and consider themselves to be active co-parents.[166]

It is critical to have a gender-neutral policy because it provides more equitable parenting opportunities for LGBTQ families as well as mothers and fathers.

III.  Current State and Federal Paid Leave Legislation

As of 2018, California, Massachusetts, New Jersey, New York, Rhode Island, Washington, and Washington, D.C., all have some form of paid parental leave. On the federal level, two bills in the 115th Congress related to paid parental leave. The Economic Security for New Parents Act is sponsored by Senator Marco Rubio (R-FL) and Congresswoman Ann Wagner (R-MO).[167] It allows new parents to postpone collecting Social Security payments for three to six months in exchange for two months of paid parental leave.[168] The Family and Medical Insurance Leave Act (“FAMILY Act”) is sponsored by Senator Kirsten Gillibrand (D-NY) and Congresswoman Rose DeLauro (D-Conn.).[169] It would provide workers with up to twelve weeks of partial income for parental, family, and medical leave purposes.[170] This part seeks to summarize each of the state paid leave plans, explain the shortcomings of Senator Rubio’s plan, and describe why the FAMILY Act should be passed in the 116th Congress.

A. State Parental Leave Plans

  1. California

California was the first state to pass a paid parental leave policy.[171] It was enacted in 2002 but became effective in July 2004.[172] The policy offers up to six weeks of partially paid leave to bond with a newborn or recently placed adopted or foster child.[173] Approximately 18.7 million Californians are covered under the program and almost 2.8 million have filed paid leave claims since its implementation in 2004.[174] More than 2.4 million of the claims filed were parents seeking time off to spend with their new child.[175] The program is gender-neutral, providing both mothers and fathers with up to six weeks of partially paid leave.[176]

The program is funded through a payroll tax on employees and is part of California’s Temporary Disability Insurance program.[177] California’s leave program is a partial leave program meaning workers’ salaries are not replaced in full. Initially, individuals received 55% of their usual pay.[178] However, the income replacement rate has steadily increased from 60% to 70% depending on the individual’s salary.[179] Workers who make up to 33% of California average weekly wages now have an income replacement rate of 70%, while those who make more than 33% have a 60% replacement rate.[180] Essentially, the lower your income, the higher your income replacement rate. Labor advocates in California praised this change, as it allows workers with lower incomes, who need paid leave most, to benefit from the program.[181] The law has been lauded as a success for California families. It has increased the leave new mothers take by three weeks, it has positively impacted children and families by increasing breastfeeding and bonding time, and 90% of employers have reported positive or no effects from the program.[182]

  1. Massachusetts

Massachusetts’s paid leave plan was enacted in 2018 but will not become effective until July 2019.[183] Starting January 2021, the law will provide workers with up to twelve weeks of paid leave to take care of a newborn.[184] Individuals with medical complications post-pregnancy will be entitled to twenty-six weeks of leave.[185] The policy applies to all employers with at least one employee working in Massachusetts.[186] The program has a unique funding mechanism. As opposed to other plans that are supported entirely through employee payroll taxes, employers and employees will split a 0.63% payroll tax.[187] Workers will earn 80% of their wages, capped at 50% of the state average weekly wage, and 50% of their wages beyond that amount capped at $850 per week.[188] While the policy does not begin to provide leave until January 2021, employers are expected to begin implementing the payroll tax and other requirements in July 2019.[189] Similar to the Rhode Island and New York policies, the leave is job protected.[190] The eligibility requirements are unclear as the statute does not mention any requirements for taking leave such as length of employment or financial eligibility.[191]

  1. New Jersey

In 2008, New Jersey passed the New Jersey Family Leave Insurance program to provide wage replacement for new parents and family caregiving.[192] New Jersey was the second state after California, to provide a statewide paid parental leave plan.[193] The program provides up to six weeks of leave to bond with a newborn, adopted, or fostered child.[194] In order to qualify, employees must have worked for their employer for twenty weeks and earned a minimum of $169 or more per week.[195] Claimants are paid two-thirds of their weekly average wage with a maximum weekly benefit of $650 for 2019.[196] The individual’s weekly average is based on the individual’s wages eight weeks before taking leave.[197] The program is funded entirely through worker payroll deductions.[198] New Jersey’s program is designed for an economic benefit and does not provide job protection during, or upon return from, leave.[199] Since its implementation in 2009, New Jersey residents have filed more than 255,000 claims with more than 205,000 using leave to bond with their new child.[200] Over 75% of workers and the majority of businesses, both large and small, view the program favorably.[201]

  1. New York

In 2016, Governor Andrew Cuomo signed New York’s Paid Family Leave policy into law.[202] The law became effective in January 2018 and provides paid leave for parents to bond with a newborn, adopted, or fostered child.[203] Employees who work twenty hours or more per week are eligible for leave after twenty-six weeks of employment while employees who work less than twenty hours a week are eligible after 175 days worked.[204] Workers will receive a partial wage replacement, starting at 50% of their average weekly wage in 2018, and slowly increasing to 67% by 2021.[205] However, wages are capped at 50% of the state average wage.[206] The amount of leave will also steadily grow from eight weeks in 2018 to twelve weeks in 2021.[207] New York offers job protected leave meaning an employer cannot discriminate against employees for taking leave or terminate their employment while on leave.[208]

  1. Rhode Island

In 2014, Rhode Island became the third state to implement a statewide paid leave family policy.[209] Rhode Island’s Temporary Caregiver Insurance (TCI) Act provides up to four weeks of paid leave for workers to spend time with a newborn, adopted, or fostered child.[210] TCI offers partial wage replacement with workers receiving up to 60% of their wages replaced and a maximum of $795 per week.[211] In order to qualify, workers must work in Rhode Island, paid into the TCI or TDI (temporary disability insurance) fund, and earn at least $11,520 in their base period or an alternate base period.[212] If an employee does not earn that much, there are some exceptions that apply.[213] Rhode Island’s plan is funded entirely through employee payroll deductions.[214] It also provides job-protected leave, meaning an employer must either hold an employee’s position while taking TCI leave or offer a comparable position upon return.[215] Since its implementation in 2014, 34,000 individuals have used the TCI program.[216] Parents note that TCI has a positive effect on their ability to care for their children and find childcare.[217] Additionally, businesses note few, if any, significant effects on productivity or related metrics.[218] Some have noted that Rhode Island’s plan is an improvement upon the California and New Jersey plans because it provides job-protected leave.[219]

  1. Washington

In 2017, Washington state enacted its paid family and medical leave program, which became effective in January 2019 for premiums and will become effective in January 2020 for benefits.[220] The policy provides twelve weeks of paid leave for individuals to bond with their newborn, adopted, or fostered child.[221] Individuals are eligible for up to eighteen weeks if they experience a serious health condition related to pregnancy.[222] Employees are eligible once they have worked 820 hours for a Washington-based employer.[223] Eligible employees are entitled to twelve weeks of wage replacement, with a maximum of $1,000 per week, dependent upon earnings.[224] Workers paid 50% or less of the statewide average weekly wage will receive 90% of their average weekly wage.[225] For workers paid more than 50% of the statewide average weekly wage, the weekly benefit rate is 90% of the employee’s average weekly wage up to 50% of the statewide average weekly wage, plus 50% of the employee’s average weekly wage that is more than 50% of the statewide average weekly wage.[226] The first year of the program is funded partially by employees and partially by employers.[227] The premium for employees is set at 0.4% per paycheck, meaning an employee earning $50,000 pays around $2.40 a week to contribute to the fund.[228]

While each state plan differs in its implementation, length, and coverage of leave, it is clear that state leave policies have become more expansive since California’s policy was implemented. For example, job protection is now a key factor in paid leave since Rhode Island included it in their statewide policy. It should also be noted that all of the statewide leave policies listed are gender-neutral and provide relatively equal coverage for all employees, with some providing better wage replacement for lower-wage employees.

  1. Washington, D.C.

In 2017, the District of Columbia passed the Universal Paid Leave Act, which will become effective in July 2020.[229] The plan covers eight weeks of parental leave for bonding with a newborn, adopted, or fostered child.[230] The plan is funded by a 0.62% increase in employer payroll taxes, which differs from plans such as California and New Jersey that rely on employee payroll taxes.[231] In order to be eligible, employees must spend 50% of their work time in D.C. for a covered employer or be based in D.C. and spend substantial amounts of work time there.[232] The benefit amount differs depending on salary.[233] Lastly, the leave is job protected.[234]

B. Proposed Federal Parental Leave Plans

  1. Rubio Plan

One of two paid leave plans introduced in the 115th Congress was Senator Marco Rubio’s (R-FL) Economic Security for New Parents Act.[235] The plan allows new parents to use a portion of their Social Security benefits as paid leave after the birth or adoption of a child.[236] This would cause a three to six-month delay in collection of Social Security benefits upon retirement.[237] Parents must use the leave for at least two months.[238] Employees in two-parent households would be able to transfer the benefit to their spouse.[239]

Some are critical of Rubio’s plan because it only provides parental leave and leaves out family and medical leave.[240] The majority of individuals who take leave do so for family and medical leave purposes, meaning the plan only covers a minority of leave takers.[241] Others fear that relying on Social Security will affect people’s retirement, especially women who are more likely to rely on both paid leave and retirement benefits.[242] A study of Rubio’s plan concluded that taking Social Security benefits as paid leave would delay collecting benefits for twice as many weeks as they collected paid leave.[243] I spoke with Letty Mederos, Congresswoman Rosa DeLauro’s Chief of Staff, who stated, “Rubio’s plan would never work because it’s robbing Peter to pay Paul.”[244] The research agrees with that statement, as individuals would be forced to delay collecting Social Security if they used it for paid leave. Lastly, individuals are critical of the wage replacement offered by Rubio’s plan because it would not adequately provide for low-wage and middle-class workers.[245] For these reasons, I do not recommend Rubio’s paid leave plan as it is limited in scope, causes problems upon retirement, and does not provide enough wage replacement for the average worker.

  1. FAMILY Act

Another far superior paid family leave plan in the 115th Congress is the Family and Medical Insurance Leave Act (FAMILY Act) sponsored by Senator Kirsten Gillibrand and Congresswoman Rose DeLauro.[246] The FAMILY Act is widely supported by hundreds of labor, health, and education advocates.[247] The FAMILY Act would provide up to twelve weeks of partial income for parental, family, medical, and military caregiving purposes.[248] Employees would earn up to 66% of their monthly wages capped at $1000 per week in the first year.[249] The Act would cover all employees, including part-time, lower-wage, and self-employed workers.[250] It would be funded by small employee and employer payroll contributions of two cents for every $10 in wages, or less than $2.00 per week for the average worker.[251] It has been calculated that full-time employees making the minimum wage would contribute $1.36 per week.[252] The leave would be job-protected, and would prevent employers from discriminating against workers for taking paid leave.[253] Lastly, the FAMILY Act would establish an Office of Paid Family and Medical Leave to administer payments.[254] This new office would be housed in the Social Security Administration and would use funds collected from the Act to sustain itself.[255]

Advocates are supportive of the FAMILY Act because it uses the California program which has proven effective as a model for paid leave.[256] Additionally, it is inclusive of all workers, and, importantly, provides support for low-wage and part-time employees.[257] As stated earlier, it is critical that paid leave programs provide support for all workers, as those excluded from paid leave programs are often those most in need of paid leave. The FAMILY Act is also cost effective, costing employees an average of less than $5 a week and less than $2 a week for low-wage workers.[258] Having every employee pay into the program is effective because it covers parental, family, and medical leave, which everyone will likely use at some point during their time with a company. Plans that only cover parental leave tend to cause bitter feelings among employees who contribute financially to the program but do not plan to have children or have stopped having children.

Its high wage replacement rate as well as its inclusive and gender-neutral nature makes the FAMILY Act the ideal paid leave plan proposed in the 115th Congress.

Conclusion

While the United States has yet to succeed in passing paid leave on the federal level, I believe a comprehensive paid federal parental leave plan will pass within the next ten years. Not only is paid parental leave critical for families, especially low-wage families, but it has wide support among voters. Candidates have started to discuss paid leave with more vigor and the major candidates in the 2016 presidential election mentioned paid leave on the campaign trail. This is becoming an issue that legislators can no longer ignore. With the rise in minimum wage and paid sick laws on the state level, paid parental leave is likely next. It is critical that any paid parental leave plan include all employees, be gender-neutral, and provide job protection. Plans should reflect the proven success of state plans by providing funding through small employee payroll taxes or a mix of employee and employer payroll taxes, similar to Washington state’s plan. If the United States wants to support working families, help decrease the wage gap, and create a healthier America, they will pass paid leave in the next Congress.


* Kate Miceli currently works as an Associate Attorney at Locke & Quinn. She previ-ously served as a law clerk on the United States Senate HELP Committee for Rank-ing Member Senator Patty Murray (D-WA). She would like to thank Letty Mederos and Michelle McGrain for their support and wealth of knowledge regarding paid leave. She would like to thank Maya Raghu and Julie Vogtman for sparking her in-terest about the importance of paid leave. Lastly, she would like to thank her parents who have served as endless financial and emotional support during this process.

       [1].    See, e.g., MomsRising, Stories from the Front Lines of Motherhood 2, 32, 51 (2013), https://www.momsrising.org/uploads/files/2013%20FINAL%20Paid%20Leave%20 Book%20Story%20Book%20%28low%20res%20version%29.pdf [https://perma.cc/PDR8-96 FU] (chronicling stories from parents in every state about their experiences taking parental leave).

       [2].    See Amy Raub et al., World Policy Analysis Ctr., Paid Parental Leave: A Detailed Look at Approaches Across OECD Countries 1 (2018), https://www.worldp olicycenter.org/sites/default/files/WORLD%20Report%20-%20Parental%20Leave%20OEC D%20Country%20Approaches_0.pdf [https://perma.cc/7ESN-GZ3S] (noting that the United States is “the only OECD country without a national-level guarantee of paid leave”).

       [3].    Fast Facts: Maternity Leave Policies Across the Globe, Vital Record (Jan. 23, 2018), https://vitalrecord.tamhsc.edu/fast-facts-maternity-leave-policies-across-globe/ [http s://perma.cc/DF53-GZ2X].

       [4].    29 U.S.C. §§ 2601–2654 (2012 & Supp. V 2018).

       [5].    Arianne Renan Barzilay, Back to the Future Introducing Constructive Feminism for the Twenty-First Century—A New Paradigm for the Family and Medical Leave Act, 6 Harv. L. & Pol’y Rev. 407, 412 (2012).

       [6].    29 U.S.C. § 2612.

       [7].    Id. § 2611.

       [8].    Id.

       [9].    See, e.g., Sarah Jane Glynn et al., Nat’l P’ship for Women & Families, An Unmet, Growing Need: The Case for Comprehensive Paid Family and Medical Leave in the United States 2 (2018), http://www.nationalpartnership.org/our-work/resources /workplace/paid-leave/an-unmet-growing-need-the-case-for-comprehensive-paid-leave-unit ed-states.pdf [https://perma.cc/3KNT-TWFN].

     [10].    29 U.S.C. § 2612(a)(1)(B) (2012).

     [11].    See, e.g., Glynn et al., supra note 9, at 2.

     [12].    29 U.S.C. § 2612(a)(1)(C).

     [13].    See, e.g., Glynn et al., supra note 9, at 2; see also 29 U.S.C. § 2612(a)(1)(D).

     [14].    See U.S. Dep’t of Labor & U.S. Bureau of Labor Statistics, Bull. No. 2789, National Compensation Survey: Employee Benefits in the United States, March 2018 tbl.32 (2018), https://www.bls.gov/ncs/ebs/benefits/2018/employee-benefits-in-the-unit ed-states-march-2018.pdf [https://perma.cc/LC6J-CUAK].

     [15].    Id.

     [16].    Id.

     [17].    Id.

     [18].    Id.

     [19].    Id.

     [20].    Id.

     [21].    Id.

     [22].    Id.

     [23].    Id.

     [24].    Id.

     [25].    Id.

     [26].    Id.

     [27].    Press Release, Nat’l P’ship for Women & Families, New Paid Leave Data: Despite Some Success, Vast Majority of Working People Still Left Behind (Sept. 21, 2018), http:// www.nationalpartnership.org/our-impact/news-room/press-statements/new-paid-leave-dat a-despite-some-success-cast-majority-of-workers-left-behind.html [https://perma.cc/95ZF-3EQL].

     [28].    Id.

     [29].    Id.

     [30].    See Marc Mory & Lia Pistilli, The Failure of the Family and Medical Leave Act: Alternative Proposals for Contemporary American Families, 18 Hofstra Lab. & Emp. L.J. 689, 689 (2001); see also FAMILY Act Coalition Letter to Congress, Nat’l P’ship for Women & Families (Jan. 16, 2019), http://www.nationalpartnership.org/our-work/resources/work place/coalition/family-act-coalition-letter.pdf [https://perma.cc/G6Z4-4DKQ].

     [31].    See Nat’l P’ship for Women & Families, Paid Leave Protects the Economic Security of Working Families: Fact Sheet 1 (2010) [hereinafter Paid Leave Fact Sheet], http://www.nationalpartnership.org/our-work/resources/workplace/paid-leave/paid -leave-protects.pdf [https://perma.cc/XL 6J-VWJD].

     [32].    Abt Assoc. Inc., Family and Medical Leave in 2012: Technical Report 127 (2012), https://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf [https:// perma.cc/EYL4-K7YV].

     [33].    Id.

     [34].    See Paid Leave Fact Sheet, supra note 31, at 1.

     [35].    Heather Boushey et al., Ctr. for Am. Progress, Ctr. for Econ. & Policy Research, Job Protection Isn’t Enough: Why America Needs Paid Parental Leave 6–13 (2013), https://cdn.americanprogress.org/wp-content/uploads/2013/12/ParentalLeave-re port-updated-2.pdf [https://perma.cc/W7K3-JBB2].

     [36].    Paid Leave Fact Sheet, supra note 31, at 1.

     [37].    See Boushey et al., supra note 35, at 1.

     [38].    29 U.S.C. § 2611 (2012).

     [39].    Id.

     [40].    Id.

     [41].    Sarah A. Donovan, Cong. Research Serv., R44835, Paid Family Leave in the United States 2 (2018).

     [42].    Nat’l P’ship for Women & Families, Updating the Family and Medical Leave Act: Fact Sheet 2 (2016) [hereinafter FMLA Fact Sheet], http://www.nationalpartners hip.org/our-work/resources/workplace/fmla/updating-the-fmla.pdf [https://perma.cc/XK88-K4HY].

     [43].    Glynn et al., supra note 9, at 2.

     [44].    Id.; see also Nat’l P’ship for Women & Families, Paid Family and Medical Leave: A Racial Justice Issue—and Opportunity 2, 4 (2018) [hereinafter Racial Justice Issue Brief], http://www.nationalpartnership.org/our-work/resources/workplace/ paid-leave/paid-family-and-medical-leave-racial-justice-issue-and-opportunity.pdf [https: //perma.cc/66LD-PVG3].

     [45].    Nat’l P’ship for Women & Families, Voters’ Views on Paid Family & Medical Leave 3 (2018), http://www.nationalpartnership.org/our-work/resources/workplace/paid-le ave/voters-views-on-paid-family-medical-leave-survey-findings-august-2018.pdf [https://pe rma.cc/KU4F-DMUH].

     [46].    Id.

     [47].    Claire Groden, An Overwhelming Majority of Americans Support Paid Parental Leave, Fortune (Apr. 15, 2016), http://fortune.com/2016/04/15/an-overwhelming-majority-of-americans-support-paid-parental-leave [https://perma.cc/UDV5-JKS2].

     [48].    Americans’ Views on Income Inequality and Workers’ Rights, N.Y. Times (June 3, 2015), https://www.nytimes.com/interactive/2015/06/03/business/income-inequality-worke rs-rights-international-trade-poll.html [https://perma.cc/C75P-NBGB].

     [49].    Id.

     [50].    Julia Isaacs et al., Urban Inst., Paid Family Leave in the United States: Time for a New National Policy 1 (2017), https://www.urban.org/sites/default/files/publicat ion/90201/paid_family_leave_0.pdf [https://perma.cc/7DRD-6MHR].

     [51].    Id.

     [52].    Id. at 2.

     [53].    Id.

     [54].    Steven A. Holmes, House Backs Bush Veto of Family Leave Bill, N.Y. Times (July 26, 1990), https://www.nytimes.com/1990/07/26/us/house-backs-bush-veto-of-family-leave-bill.html [https://perma.cc/5EYH-H7K7].

     [55].    Michael Wines, Bush Vetoes Bill Making Employers Give Family Leave, N.Y. Times (Sept. 23, 1992), https://www.nytimes.com/1992/09/23/us/bush-vetoes-bill-making-employ ers-give-family-leave.html [https://perma.cc/S9X4-RGAD]

     [56].    Press Release, Nat’l P’ship for Women & Families, First-Ever Expansion of Family and Medical Leave Act Becomes Law (Jan. 29, 2008), http://www.nationalpartnership.org/ our-impact/news-room/press-statements/first-ever-expansion-of-fmla.html [https://perma. cc/67CP-L5PL].

     [57].    Megan A. Sholar, Donald Trump and Hillary Clinton Both Support Paid Family Leave. That’s a Breakthrough., Wash. Post (Sept. 22, 2016), https://www.washingtonpost. com/news/monkey-cage/wp/2016/09/22/donald-trump-and-hillary-clinton-both-support-paid -family-leave-thats-a-breakthrough [https://perma.cc/4VBW-CKN8].

     [58].    Id.

     [59].    Sean Sullivan & Robert Costa, Donald Trump Unveils Child-Care Policy Influenced by Ivanka Trump, Wash. Post (Sept. 13, 2016), https://www.washingtonpost.com/news/ post-politics/wp/2016/09/13/donald-trump-joined-by-ivanka-trump-to-outline-child-care-policy [https://perma.cc/6TZY-ANFB].

     [60].    President Donald J. Trump, State of the Union Address (Jan. 30, 2018).

     [61].    Ctr. for Am. Progress, Paid Family and Medical Leave: By the Numbers 3 (2017), https://cdn.americanprogress.org/content/uploads/2017/09/26120405/PaidFamilyM edicalLeave-factSheet.pdf [https://perma.cc/UPC7-M3L8].

     [62].    See supra Part I.B.

     [63].    Juliana Menasce Horowitz et al., Pew Research Ctr., Americans Widely Support Paid Family and Medical Leave, but Differ Over Specific Policies 15 (2017), http://www.pewsocialtrends.org/2017/03/23/americans-widely-support-paid-family-and-medical-leave-but-differ-over-specific-policies [https://perma.cc/EN78-5XSY].

     [64].    Id.

     [65].    Aparna Mathur & Cody Kallen, Low-Wage Workers Are Falling Through the Cracks of Paid Leave Coverage, AEIdeas (Feb. 26, 2018, 10:55 AM), http://www.aei.org/publication /low-wage-workers-are-falling-through-the-cracks-of-paid-leave-coverage/ [https://perma.cc /V4EX-EJJJ]; see also Judith Warner & Danielle Corley, In the Absence of U.S. Action on Paid Leave, Multinationals Make Their Own Policies, Ctr. for Am. Progress (Nov. 17, 2016, 6:00 AM), https://www.americanprogress.org/issues/women/reports/2016/11/17/2925 01/in-the-absence-of-u-s-action-on-paid-leave-multinationals-make-their-own-policies/ [https://perma. cc/ST8H-C72H].

     [66].    See PL+US 2018 Employer Scorecard, PL+US, https://paidleave.us/topemployerpoli cies [https://perma.cc/LUJ5-4K4H] (last visited Apr. 1, 2019) (showing that employers such as Walmart, Amazon, Gap, and Target provide paid leave for salaried or full-time employees, while failing to provide paid leave for hourly or part-time employees).

     [67].    Id.

     [68].    Id.

     [69].    See Warner & Corley, supra note 65.

     [70].    Liz Ben-Ishai, CLASP, Wages Lost, Jobs at Risk: The Serious Consequences of Lack of Paid Leave 2 (2015), https://www.clasp.org/sites/default/files/public/resources-and-publications/publication-1/2015-02-03-FMLA-Anniversary-Brief.pdf [https://perma.cc /39WC-3BV7].

     [71].    Id.

     [72].    Failing Its Families: Lack of Paid Leave and Work-Family Support in the US, Hum. Rts. Watch (Feb. 23, 2011), https://www.hrw.org/report/2011/02/23/failing-its-families/la ck-paid-leave-and-work-family-supports-us [https://perma.cc/2GBZ-TBUE].

     [73].    See Sarah Foss, Nat’l Ctr. for Children in Poverty, Paid Leave in the States: A Critical Support for Low-Wage Workers and Their Families 3 (2009), https:// academiccommons.columbia.edu/doi/10.7916/D8XH00VS [https://perma.cc/2X56-ACMR].

     [74].    Id.

     [75].    See Racial Justice Issue Brief, supra note 44, at 2–3 (noting that “families of color have, on average, fewer resources than white families to plan for and absorb the effects of a serious personal or family medical issue”).

     [76].    Pamela Winston, U.S. Dep’t of Health & Human Servs., Office of the Assistant Sec’y for Planning & Evaluation, Work-Family Supports for Low-Income Families: Key Research Findings and Policy Trends 4­–6, 8–9 (2014), https://aspe. hhs.gov/system/files/pdf/76856/rpt_WorkFamily.pdf [https://perma.cc/Y79W-F QTL].

     [77].    See Mary Beth Maxwell et al., Human Rights Campaign Found., 2018 U.S. LGBTQ Paid Leave Survey 17 (2018), https://assets2.hrc.org/files/assets/resources/2018-HRC-LGBTQ-Paid-Leave-Survey.pdf [https://perma.cc/UTN6-9G8A] (stating that “[s]ome company policies guarantee paid time off for new birth mothers but provide little or no time off for other new parents”).

     [78].    Id.

     [79].    PL+US, Left Out: How Corporate America’s Parental Leave Policies Discriminate Against Dads, LGBTQ+, and Adoptive Parents 2 (2017) [hereinafter Left Out Report], https://action network.org/user_files/user_files/000/018/898/original/plus_left outreport_2017-7-11.pdf [https://perma.cc/L9E4-GSX6].

     [80].    Maxwell et al., supra note 77, at 4.

     [81].    Id.

     [82].    Alison Bowen, How Gay Dads Manage Without Paid Paternity Leave, Chi. Trib. (Sept. 26, 2017, 9:35 AM), https://www.chicagotribune.com/lifestyles/parenting/sc-fam-gay-dads-paternity-leave-1003-story.html [https://perma.cc/X843-7MAV].

     [83].    Id.

     [84].    Id.

     [85].    Id.

     [86].    Rebecca Gale, How Paid Leave Policies Can Negatively Affect LGBTQ Families, Wash. Post (June 12, 2017, 10:02 AM), https://www.washingtonpost.com/news/parenting /wp/2017/06/12/how-paid-leave-policies-can-negatively-affect-lgbtq-families [https://perma. cc/2JDQ-DWTK].

     [87].    Id.

     [88].    Id.

     [89].    Left Out Report, supra note 79, at 3.

     [90].    Id. at 4.

     [91].    Gary J. Gates, Williams Inst., LGBT Parenting in the United States 1 (2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Parenting.pdf [https://per ma.cc/7RCW-HAE4].

     [92].    Id.

     [93].    Maxwell et al., supra note 77, at 13.

     [94].    Human Rights Campaign Found., LGBTQ Working People of Color Need Paid Leave: Stories and Findings from the 2018 U.S. LGBTQ Paid Leave Survey 3 (2018), https://assets2.hrc.org/files/assets/resources/HRC-PaidLeave-POCReport-FINAL.pdf [https://perma.cc/EVK6-LGX7].

     [95].    Id. at 6.

     [96].    Horowitz et al., supra note 63, at 4.

     [97].    Id.

     [98].    See Tammy Duckworth, 2018 Is Past Time to Get Real on Paid Leave, CNN (Feb. 5, 2018, 5:17 PM ET), https://www.cnn.com/2018/02/05/opinions/paid-leave-fmla-congress-tam my-duckworth-opinion/index.html [https://perma.cc/U9RS-C2A7] (arguing that lack of access to paid leave forces people to choose between caring for family members and losing their job).

     [99].    Press Release, WORLD Policy Analysis Ctr., Paid Family Medical Leave in the U.S.: Good for Families, Good for the Economy (Feb. 28, 2018), https://ph.ucla.edu/news/press-re lease/2018/feb/paid-family-medical-leave-us-good-families-good-economy [https://perma.cc/ 72PR-MCVU].

   [100].    Sharon Lerner, The Real War on Families: Why the U.S. Needs Paid Leave Now, In These Times (Aug. 18, 2015), http://inthesetimes.com/article/18151/the-real-war-on-famil ies?fb_action_ids=10204879351840116&fb_action_types=og.likes [https://perma.cc/G4G5-P JZT].

   [101].    Barbara Gault et al., Inst. for Women’s Policy Research, Paid Parental Leave in the United States 14 (2014), https://iwpr.org/wp-content/uploads/wpallimport/ files/iwpr-export/publications/B334-Paid%20Parental%20Leave%20in%20the%20United% 20States.pdf [https://perma.cc/HZF8-G45H].

   [102].    CLASP, Paid Family Leave: A Crucial Support for Breastfeeding, https: //www.clasp.org/sites/default/files/public/resources-and-publications/files/Breastfeeding- Paid-Leave.pdf [https://perma.cc/YLZ4-9KM9] (last visited Apr. 1, 2019).

   [103].    Id.

   [104].    Id.

   [105].    Id.

   [106].    Id.

   [107].    Id.

   [108].    Racial Justice Issue Brief, supra note 44, at 5.

   [109].    Id.

   [110].    Lerner, supra note 100.

   [111].    Id.

   [112].    Id.

   [113].    Id.

   [114].    Gault et al., supra note 101, at 14.

   [115].    Id.

   [116].    Id.

   [117].    Id.

   [118].    Id. at 14–15.

   [119].    Nat’l P’ship for Women & Families, Children Benefit When Parents Have Access to Paid Leave: Fact Sheet 1–2 (2015), http://www.nationalpartnership.org/our- work/resources/workplace/paid-leave/children-benefit-when-parents.pdf [https://perma.cc/ HF5R-4WJD].

   [120].    See id.

   [121].    Racial Justice Issue Brief, supra note 44, at 5.

   [122].    Id.

   [123].    See Ben-Ishai, supra note 70, at 2 (highlighting a variety of ways that women are uniquely financially and professionally disadvantaged by taking parental leave).

   [124].    AEI-Brookings Working Grp. on Paid Family Leave, Paid Family and Medical Leave: An Issue Whose Time Has Come 4 (2017) [hereinafter AEI-Brookings Study], https://www.brookings.edu/wp-content/uploads/2017/06/es_20170606_paidfamilyleave.pdf [https://perma.cc/PJD5-N3PZ]; see also Glynn et al., supra note 9, at 4 (noting that despite the increasing prevalence of women in the workforce, labor force participation rates for American women in their 20s, 30s, and 40s are lower than those rates of similarly aged men and women working in other developed economies).

   [125].    See supra Part II.B.1.

   [126].    AEI-Brookings Study, supra note 124, at 20.

   [127].    See Ben-Ishai, supra note 70, at 2.

   [128].    Nikki Waller, How Men & Women See the Workplace Differently, Wall Street J. (Sept. 27, 2016, 4:12 AM ET), http://graphics.wsj.com/how-men-and-women-see-the-work place-differently/?mod=article_inline [https://perma.cc/P6KA-F99K].

   [129].    Id.

   [130].    Id.

   [131].    Id.

   [132].    Madeline Farber, Etsy Just Reported the First Results of Its Gender-Neutral Parental Leave, Fortune (Jan. 31, 2017), http://fortune.com/2017/01/31/etsy-parental-leave-first-results/ [https://perma.cc/V2WJ-3LHJ].

   [133].    Linda Houser & Thomas P. Vartanian, Rutgers Ctr. for Women and Work, Policy Matters: Public Policy, Paid Leave for New Parents, and Economic Security for U.S. Workers 2 (2012), http://www.nationalpartnership.org/our-work/resources/work place/other/policy-matters.pdf [https://perma.cc/W9VJ-2DQS].

   [134].    Raub et al., supra note 2, at 7.

   [135].    Claire Cain Miller, The Economic Benefits of Paid Parental Leave, N.Y. Times (Jan. 30, 2015),https://www.nytimes.com/2015/02/01/upshot/the-economic-benefits-of-paid-paren tal-leave.html [https://perma.cc/RMA6-H52K].

   [136].    Ben-Ishai, supra note 70, at 3.

   [137].    Gault et al., supra note 101, at 8.

   [138].    Mary Amelia Douglas-Whited Cmty. Women’s Health Educ. Ctr., Paid Family and Medical Leave 1 (2019), https://womenshealth.tulane.edu/sites/womenshealth.tu lane.edu/files/Family%20leave%20brief-2019%201.pdf [https://perma.cc/6Z7C-8VD5].

   [139].    Tanya L. Goldman, The Economic Necessity of Paid Family and Medical Leave, CLASP (Mar. 30, 2018), https://www.clasp.org/blog/economic-necessity-paid-family-and-medical-leave [https://perma.cc/6N25-J89F].

   [140].    Joint Econ. Comm., U.S. Congress, The Economic Benefits of Paid Leave: Fact Sheet 2 (2015), https://www.jec.senate.gov/public/_cache/files/646d2340-dcd4-4614-ada9-be5b1c3f445c/jec-fact-sheet—economic-benefits-of-paid-leave.pdf [https://perma.cc/5H 9J-TBHP].

   [141].    See id.

   [142].    AEI-Brookings Study, supra note 124, at 20.

   [143].    Human Rights Watch, Failing Its Families: Lack of Paid Leave and Work-Family Supports in the US 1 (2011), https://www.hrw.org/report/2011/02/23/failing-its-families/lack-paid-leave-and-work-family-supports-us# [https://perma.cc/36P3-NSUQ].

   [144].    See generally Natalie Kitroeff & Jessica Silver-Greenberg, Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies, N.Y. Times (June 15, 2018), https:// www.nytimes.com/interactive/2018/06/15/business/pregnancy-discrimination.html [https:// perma.cc/GKM9-EV9E] (discussing that due to widespread discrimination it does not matter “[w]hether women work at Walmart or on Wall Street, getting pregnant is often the moment they are knocked off the professional ladder”).

   [145].    See AEI-Brookings Study, supra note 124, at 20.

   [146].    Nat’l P’ship for Women & Families, Fathers Need Paid Family and Medical Leave 1 (2018) [hereinafter Nat’l P’ship, Fathers], http://www.nationalpartnership.org/ research-library/work-family/paid-leave/fathers-need-paid-family-and-medical-leave.pdf [https://perma.cc/4HJE-Y4JJ].

   [147].    Id.

   [148].    Id.

   [149].    See id.

   [150].    See generally U.S. Dep’t of Labor, Paternity Leave: Why Parental Leave for Fathers Is So Important for Working Families 2­–3 (2016) [hereinafter DOL Fathers], https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2604&context=key _workplace [https://perm a.cc/2FNQ-3TUJ] (discussing that when fathers take paternity leave “it can lead to better outcomes for their children and the whole family”).

   [151].    Horowitz et al., supra note 63, at 13.

   [152].    Id. at 23.

   [153].    DOL Fathers, supra note 150, at 1.

   [154].    See supra Part II.B.1.

   [155].    See Nat’l P’ship, Fathers, supra note 146, at 1.

   [156].    DOL Fathers, supra note 150, at 2.

   [157].    Id.

   [158].    Nat’l P’ship, Fathers, supra note 146, at 1.

   [159].    DOL Fathers, supra note 150, at 3.

   [160].    Id.

   [161].    Id.

   [162].    Id. at 2.

   [163].    Id.

   [164].    Nat’l P’ship, Fathers, supra note 146, at 2.

   [165].    AEI-Brookings Study, supra note 124, at 6–7.

   [166].    Nat’l P’ship, Fathers, supra note 146, at 2.

   [167].    Economic Security for New Parents Act, S. 3345, 115th Cong. (2018); Rubio, Wagner Introduce Paid Family Leave Legislation, HR Pol’y Ass’n (Aug. 3, 2018), http://www.hrpoli cy.org/news/story/rubio-wagner-introduce-paid-family-leave-legislation-14913 [https://per ma.cc/A5TL-FQY7] [hereinafter Rubio & Wagner].

   [168].    Economic Security for New Parents Act, S. 3345.

   [169].    FAMILY Act, S. 337, 115th Cong. (2017); Nat’l P’ship for Women & Families, The Family and Medical Insurance Leave (FAMILY) Act 1 (2018) [hereinafter Nat’l P’ship, FAMILY Act], http://www.nationalpartnership.org/our-work/resources/workplace/paid-leave/family-act-fact-sheet.pdf [https://per ma.cc/ZQ5K-UKUY].

   [170].    Nat’l P’ship, FAMILY Act, supra note 169, at 1.

   [171].    Nat’l P’ship for Women & Families, State Paid Family Medical Leave Insurance Laws 1 (2018) [hereinafter Paid Family Medical Leave Insurance Laws],  http://www.nationalpartnership.org/research-library/work-family/paid-leave/state-paid-family-leave-laws.pdf [https://perma.cc/2QEC-UKU6].

   [172].    Id.; Maya Rossin-Slater et al., The Effects of California’s Paid Family Leave Program on Mothers’ Leave-Taking and Subsequent Labor Market Outcomes 1 (Nat’l Bureau of Econ. Research, Working Paper No. 17715, 2011), https://www.nber.org/papers/w17715.pdf [https://perma.cc/URB6-N45Q].

   [173].    Rossin-Slater et al., supra note 172, at 3.

   [174].    About Paid Family Leave (PFL), Emp. Dev. Dep’t, St. Cal., https://www.edd. ca.gov/disability/About_PFL.htm [https://perma.cc/DU5K-KAAQ] (last visited Apr. 1, 2019); Nat’l P’ship for Women & Families, Paid Leave Works in California, New Jersey, and Rhode Island 1 (2018) [hereinafter Paid Leave Works in California, New Jersey, and Rhode Island], http://www.nationalpartnership.org/our-work/resources/workplace/paid-leave/paid-leave-works-in-california-new-jersey-and-rhode-island.pdf [https://perma.cc/9M MF-BM4A].

   [175].    Paid Leave Works in California, New Jersey, and Rhode Island, supra note 174, at 1.

   [176].    Ann Bartel et al., U.S. Dep’t of Labor, California’s Paid Family Leave Law: Lessons from the First Decade 2 (2014) [hereinafter California Lessons], https://www. dol.gov/asp/evaluation/reports/PaidLeaveDeliverable.pdf [https://perma.cc/CE9C-ACVR].

   [177].    Id.

   [178].    Id.

   [179].    See Cal. Unemp. Ins. Code § 2655 (2016); About Paid Family Leave (PFL), supra note 174.

   [180].    Cal. Unemp. Ins. Code § 2655.

   [181].    Mitch Seaman, Victory for Working Families – Governor Brown Signs AB 908 to Expand Paid Family Leave!, Cal. Lab. Fed’n (Apr. 11, 2016), https://calaborfed.org/victo ry_for_working_families_governor_brown_signs_ab_908_to_expand_paid_fam/ [https://per ma.cc/8KMV-KXQ5].

   [182].    California Lessons, supra note 176, at 4–5, 9.

   [183].    H.B. 4640 § 29, 190th Gen. Court, Reg. Sess. (Mass. 2018) (enacted); Paid Family Medical Leave Insurance Laws, supra note 171, at 1.

   [184].    Foley Hoag, LLP, Massachusetts Establishes Paid Family Leave and Raises Minimum Wage, JD Supra (July 2, 2018), https://www.jdsupra.com/legalnews/massachusetts-establishes-paid-family-68984/ [https://perma.cc/R6AU-7FSQ].

   [185].    Audrey Goodson Kingo, Massachusetts Just Passed the Most Generous Paid Family Leave Law in the Country, Working Mother (June 28, 2018), https://www.working mother. com/massachusetts-just-passed-most-generous-paid-family-leave-law-in-country [https:// perma.cc/4Y4K-L2WU].

   [186].    Foley Hoag, LLP, supra note 184.

   [187].    Id.

   [188].    Id.

   [189].    Id.

   [190].    Paid Family Medical Leave Insurance Laws, supra note 171, at 10.

   [191].    Id.

   [192].    N.J. Stat. Ann. § 43:21–38 (2019); Sharon Lerner & Eileen Appelbaum, Ctr. for Econ. & Policy Research, Business as Usual: New Jersey Employers’ Experiences with Family Leave Insurance, 6 (2014), http://cepr.net/documents/nj-fli-2014-06.pdf [https://perma.cc/TG7H-L7AX].

   [193].    Lerner & Appelbaum, supra note 192, at 7.

   [194].    Family Leave Insurance, Dep’t Lab. & Workforce Dev., Official Site of the St. of N.J., https://myleavebenefits.nj.gov/worker/fli/ [https://perma.cc/R9V3-L939] (last visited Apr. 1, 2019); Your Guide to Family Leave Insurance in New Jersey, Dep’t Lab. & Workforce Dev., Official Site St. N.J., https://www.nj.gov/labor/forms_pdfs/tdi/WPR-119%20(1-18).pdf [https://perma.cc/M78B-BN5W] (last visited Apr. 1, 2019) [hereinafter Your Guide].

   [195].    Your Guide, supra note 194.

   [196].    Family Leave Insurance, supra note 194.

   [197].    Id.

   [198].    Id.

   [199].    Your Guide, supra note 194.

   [200].    Paid Leave Works in California, New Jersey, and Rhode Island, supra note 174, at 1.

   [201].    Id.

   [202].    N.Y. Workers’ Comp. Law § 200–242 (2019); The Nation’s Strongest Paid Family Leave Policy, N.Y. St., https://paidfamilyleave.ny.gov [https://perma.cc/D2ZH-4SKL] (last visited Apr. 1, 2019).

   [203].    New York State Paid Family Leave: Employee Facts, N.Y. St., https://www.ny.gov/ sites/ny.gov/files/atoms/files/PaidFamilyLeave_EmployeeFactSheet.pdf [https://perma.cc/ EZ9R-BNQE] (last visited Apr. 1, 2019).

   [204].    Id.

   [205].    Id.

   [206].    Id.

   [207].    Id.

   [208].    Id.

   [209].    Ann Bartel et al., U.S. Dep’t of Labor, Accessing Rhode Island’s Temporary Caregiver Insurance Act: Insights from a Survey of Employers 3 (2016) [hereinafter Survey of Employers], https://www.dol.gov/asp/evaluation/completed-studies/Assessing RhodeIslandTemporaryCaregiverInsuranceAct_InsightsFromSurveyOfEmployers.pdf [https://perma.cc/8TT4-TR9B].

   [210].    Id.

   [211].    R.I. Dep’t of Labor & Training, Fast Facts About TCI: Temporary Caregiver Insurance, http://ripaidleave.net/wp-content/uploads/2016/09/Fast-Facts-for-Workers-ab out-RI-TCI.pdf [https://perma.cc/8SJ2-57NT] (last visited Apr. 1, 2019).

   [212].    Id.

   [213].    Id.

   [214].    Id.

   [215].    Id.

   [216].    Paid Leave Works in California, New Jersey, and Rhode Island, supra note 174, at 1.

   [217].    Id. at 3.

   [218].    Survey of Employers, supra note 209, at 5.

   [219].    Paid Leave Works in California, New Jersey, and Rhode Island, supra note 174, at 1–2.

   [220].    Paid Family Medical Leave Insurance Laws, supra note 171, at 1.

   [221].    Id. at 2–3.

   [222].    Id. at 3.

   [223].    Id. at 4.

   [224].    Id. at 8.

   [225].    Id. at 7–8

   [226].    Id. at 8.

   [227].    Washington’s Paid Family and Medical Leave Program, Emp. Sec. Dep’t, Wash. St., https://esdorchardstorage.blob.core.windows.net/esdwa/Default/ESDWAGOV/ paid-family-medical-leave/2018.PFML.Infographic.pdf [https://perma.cc/VM4E-LSF5] (last visited Apr. 1, 2019).

   [228].    Id.

   [229].    Universal Paid Leave Act, D.C. Law 21-265 (D.C. 2016); Paid Family Medical Leave Insurance Laws, supra note 171, at 1.

   [230].    Paid Family Medical Leave Insurance Laws, supra note 171, at 2.

   [231].    S. Libby Henninger & Eunju Park, District of Columbia Enacts the Universal Paid Leave Act, Littler (Apr. 24, 2017), https://www.littler.com/publication-press/publication /district-columbia-enacts-universal-paid-leave-act [https://perma.cc/R655-YA4L].

   [232].    Paid Family Medical Leave Insurance Laws, supra note 171, at 4.

   [233].    See id. at 7.

   [234].    See id. at 10.

   [235].    Rubio & Wagner, supra note 167.

   [236].    Id.

   [237].    Naomi Jagoda, Rubio Rolls Out Paid Parental Leave Bill, Hill (Aug. 2, 2018), https: //thehill.com/policy/finance/400147-rubio-rolls-out-paid-parental-leave-bill [https://perma. cc/T44B-G5C9].

   [238].    Rubio & Wagner, supra note 167.

   [239].    See Economic Security for New Parents Act, S. 3345, § 235 (c)(1)(B), 115th Cong. (2018).

   [240].    Jagoda, supra note 237.

   [241].    Press Release, Nat’l P’ship for Women & Families, Rubio Paid Leave Plan is ‘Wrong for America.’ It Excludes Most Workers, Jeopardizes Essential Social Security Benefits (Aug. 1, 2018), http://www.nationalpartnership.org/news-room/press-releases/rubio-paid-le ave-plan-is-wrong-for-america-excludes-most-workers-jeopardizes-social-security.html [https://perma.cc/XKT7-5RB9] [hereinafter Wrong for America].

   [242].    Amy K. Matsui, As If We Need It, Evidence That Delaying Social Security to Get Paid Leave Benefits Is a Terrible Idea, Nat’l Women’s L. Ctr. (Apr. 20, 2018), https://nwlc. org/blog/as-if-we-needed-it-evidence-that-delaying-social-security-to-get-paid-leave-bene fits-is-a-terrible-idea/ [https://perma.cc/D6AS-LMBY].

   [243].    Melissa M. Favreault & Richard W. Johnson, Urban Inst., Paying for Parental Leave with Future Social Security Benefits 1 (2018), https://www.urban. org/sites/default/files/publication/98101/paying_for_parental_leave_with_future_social_security_benefits_0.pdf [https://perma.cc/RSW8-MVC8].

   [244].    Telephone Interview with Leticia Mederos, Chief of Staff, Congresswoman Rosa DeLauro (D-Ct 3rd Dist.) (Oct. 17, 2018).

   [245].    See Wrong for America, supra note 241.

   [246].    FAMILY Act, S. 337, 115th Cong. (2017).

   [247].    See generally FAMILY Act Coalition Letter to Congress, supra note 30 (listing hundreds of national organizations supporting this piece of legislation).

   [248].    FAMILY Act, S. 337; see Nat’l P’ship, FAMILY Act, supra note 169, at 1.

   [249].    Jane Farrell & Sarah Jane Glynn, The FAMILY Act: Facts and Frequently Asked Questions, Ctr. for Am. Progress (Dec. 12, 2013), https://www.americanprogress.org/issu es/economy/reports/2013/12/12/81037/the-family-act-facts-and-frequently-asked-questions/ [https://perma.cc/26HZ-VGNR].

   [250].    Nat’l P’ship, FAMILY Act, supra note 169, at 1.

   [251].    Id.

   [252].    See Inst. for Women’s Policy Research, Paid Family and Medical Leave Insurance: Modest Costs Are a Good Investment in America’s Economy 2–3 (2018), https://iwpr.org/wp-content/uploads/2018/02/B368_Paid-Leave-Fact-Sheet-1.pdf [https://pe rma.cc/M2DP-QVW9].

   [253].    Id.

   [254].    Nat’l P’ship, FAMILY Act, supra note 169, at 1.

   [255].    Farrell & Glynn, supra note 249.

   [256].    Nat’l P’ship for Women & Families, The Case for a National Family and Medical Leave Insurance Program 3 (2015), http://www.nationalpartnership.org/res earch-library/work-family/paid-leave/the-case-for-the-family-act.pdf [https://perma.cc/TXT 2-MEM3]

   [257].    FAMILY Act Coalition Letter to Congress, supra note 30.

   [258].    Inst. for Women’s Policy Research, supra note 252, at 1.

**Photo featured from — Anna Sanford, The Odds Are Not in Favor of Working Mothers, Salon  (July 11, 2017 7:58 AM) https://www.salon.com/2017/07/11/the-odds-are-not-in-favor-of-working-mothers_partner_partner/.

Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole

Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole

Emily Powell, Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole, 52 U. Rich. L. Rev. Online 83 (2018).

Click here to download PDF.


Emily Powell *

Reynolds Wintersmith was just twenty years old when he learned he may spend the rest of his life in prison.[1] In 1994, he was sentenced to life without the possibility of parole for a nonviolent drug crime.[2] It was his first conviction.[3]

When United States District Judge Philip Reinhard was sentencing Reynolds, he struggled with the mandatory minimum requirements:[4]

Under the federal law I have no discretion in my sentencing. Usually a life sentence is imposed in state courts when somebody has been killed or severely hurt, or you got a recidivist . . . . [T]his is your first conviction, and here you face life imprisonment . . . . [I]t gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life.[5]

This comment contends that Reynolds Wintersmith belonged to a class of offenders who should be categorically exempt from sentences of life imprisonment without the possibility of parole. Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.

The United States Supreme Court has categorically exempted classes of offenders from punishment before.[6] In Roper v. Simmons, the Court held that sentencing juveniles to death violated the Eighth Amendment’s ban on cruel and unusual punishment.[7] The Court also held in Graham v. Florida that juveniles were categorically exempted from life imprisonment without the possibility of parole for non-homicide offenses.[8] In coming to these decisions, the Court has given the same two reasons for categorically banning particular sentences for classes of offenders: (1) a national consensus has formed against the sentence for the class of offenders, and (2) the sentence is disproportionate to the culpability of the class of offenders.[9]

This comment argues that eighteen- to twenty-year-olds should be categorically spared from life without parole for these same two reasons.[10] First, sentencing data suggests only a small portion of those sentenced to life without parole were between eighteen and twenty years old at the time of their crimes.[11] This low rate illustrates that the country appears to oppose sentencing eighteen- to twenty-year-olds to prison for the rest of their lives without any opportunities for release. Second, sentencing eighteen- to twenty-year-olds to life without parole is a disproportionate punishment because scientific research shows that this class of individuals shares the same mitigating characteristics as juvenile offenders.[12] These characteristics diminish culpability and thus make life without parole a disproportionate sentence for these offenders.

Part I of this comment describes the legal foundation for establishing categorical sentencing exemptions for classes of offenders, discussing the Supreme Court’s decisions in Roper,[13] Graham,[14] and Miller v. Alabama.[15] Part II outlines the behavioral, psychological, and neurological research surrounding the culpability of eighteen- to twenty-year-olds, arguing that there is scientific confirmation that eighteen- to twenty-year-olds’ brains are similar to those of juveniles. Part III applies the Court’s categorical exemption test and concludes that eighteen- to twenty-year-olds should be exempt from life without parole.[16] In the end, eighteen- to twenty-year-olds have more to offer the world in the long lives they have ahead of them.

I.  The Supreme Court’s Categorical Exemption Jurisprudence

The Supreme Court created a test to categorically exempt offenders from sentences,[17] and has applied this test to the death penalty with regard to mentally disabled offenders and defendants under eighteen years of age at the time of their crimes.[18] The Court has also applied the test to life without parole for non-homicide juvenile offenders.[19] While the Court held it is unconstitutional to sentence juveniles to mandatory life without parole in homicide cases, it bypassed the categorical exemption test because it was not necessary to decide the case in question.[20] This part discusses the Court’s categorical exemption test and the relevant cases in which it has been implemented.

A.  Atkins and Roper: The Supreme Court’s Two-Part Categorical Exemption Test

In 2002, the Supreme Court held in Atkins v. Virginia that the execution of defendants with mental disabilities violated the Eighth Amendment.[21] To support its holding, it engaged in a two-part analysis.[22] First, the Court recognized that numerous states were no longer executing those with mental disabilities, and “even in those [s]tates that allow the execution of mentally [disabled] offenders, the practice is uncommon.”[23] The Court found that because the practice had become so unusual, “a national consensus [had] developed against it.”[24]

Second, the Court engaged in an independent proportionality inquiry and held that executing those with mental disabilities “will [not] measurably advance the deterrent or the retributive purpose of the death penalty.”[25] The Court recognized that those with mental disabilities “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”[26] People with mental disabilities are less likely to be deterred by capital punishment because of “their disabilities in areas of reasoning, judgment, and control of their impulses.”[27] Therefore, the Court found capital punishment was “excessive” after “[c]onstruing and applying the Eighth Amendment in the light of our ‘evolving standards of decency.’”[28]

Three years later, in Roper v. Simmons, the Court held that the execution of defendants younger than eighteen years of age at the time of their crimes violated the Eighth Amendment.[29] In reaching its decision, the Court engaged in its two-part analysis from Atkins.[30] It held that a national consensus had formed in opposition to executing juveniles, which was evidence that society views juveniles as “categorically less culpable than the average criminal.”[31]

The Court then engaged in its independent proportionality inquiry and held the death penalty was an excessive punishment for juveniles under the Eighth Amendment.[32] The Court reasoned that “[c]apital punishment must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’”[33] It reasoned that juveniles cannot be classified among the worst of offenders because they differ from adults in three meaningful ways: (1) they lack maturity and a developed sense of responsibility; (2) they are “susceptible to negative influences and outside pressures, including peer pressure;” and (3) their character is not as well-formed.[34] The Court concluded these characteristics diminished culpability, and the two clear social purposes served by the death penalty—retribution and deterrence—were therefore not as adequate of justifications with regard to juveniles as they are with adults.[35]

While the Court acknowledged that “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” it decided that a bright line needed to be drawn.[36] After recognizing that logic previously used to exclude offenders under age sixteen from the death penalty[37] could be extended to those under eighteen, the Court concluded that because eighteen years of age was “where society draws the line for many purposes between childhood and adulthood,” this is also where “the line for death eligibility ought to rest.”[38] As the risk of executing juvenile offenders with diminished culpability could not be remedied by an individualized sentencing regime, offenders under eighteen years old are categorically exempt from the death penalty.[39]

B.  Graham: Analyzing Actual Sentencing Practices to Find a National Consensus Against a Punishment

While Atkins and Roper provided the two-part categorical exemption test,[40] Graham clarified the first prong of the test in 2010.[41] In Graham, the Court applied the two-part test and held that juveniles were categorically exempted from life without parole for non-homicide offenses.[42] It found that a national consensus existed against this punishment even though the majority of states permitted it.[43] After considering the practices of states where the sentence was permitted, the Court found the punishment was rarely utilized.[44] For this reason, “an examination of actual sentencing practices . . . discloses a consensus against its use.”[45] The Court went on to note that only one state imposed the “significant majority” of the sentences, and only ten states imposed the remainder.[46] Graham therefore clarified that a national consensus against a practice can be established by the mere infrequency of the particular sentence.[47]

When applying the second prong of the categorical exemption test, the Court held that life without parole is a violation of the Eighth Amendment when imposed on juvenile offenders for non-homicide offenses for three reasons: (1) the offender’s lessened culpability;[48] (2) the severity of life without parole;[49] and (3) the lack of any legitimate penological justification—such as retribution, deterrence, incapacitation, or rehabilitation—to justify the sentence.[50]

For the first concern, the Court reiterated the same three mitigating characteristics outlined in Roper.[51] It also emphasized that “[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.”[52] The Court continued to recognize that “because juveniles have lessened culpability they are less deserving of the most severe punishments.”[53] Furthermore, the Court pointed out that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,”[54] including that “parts of the brain involved in behavior control continue to mature through late adolescence.”[55]

When discussing its second concern—the severity of life without parole—the Court noted the sentence shares characteristics with the death penalty that other sentences do not.[56] For instance, the Court recognized the only hope offenders have in the restoration of their most basic liberties is the remote chance of executive clemency, “which does not mitigate the harshness of the sentence.”[57] Furthermore, the Court emphasized the importance of time when it reasoned that after imposition of this sentence, “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender.”[58] Therefore, imposing life without parole on juvenile offenders was especially severe.[59]

Finally, the Court examined four penological justifications for sentencing juveniles to life without parole for non-homicide offenses and found that none of them adequately justified the sentence.[60] The Court ruled out (1) retribution because of juvenile offenders’ lessened culpability,[61] (2) deterrence because of juveniles’ impulsiveness,[62] (3) incapacitation because of their capacity for change,[63] and (4) rehabilitation because the sentence itself is contradictory to the rehabilitative ideal.[64] Due to the lack of legitimate justification for sentencing juveniles to life without parole for non-homicide offenses, the Court held the sentence was disproportionate and therefore violated the Eighth Amendment.[65]

C.  Miller: Bypassing the Categorical Exemption Test

The Supreme Court continued to rely on juvenile development as a justification for exempting categories of juvenile offenders when it decided Miller v. Alabama in 2012.[66] The Court held it is unconstitutional to sentence juveniles to mandatory life without parole for homicide cases because mandatory sentencing schemes do not allow judges or juries to consider the characteristics of youth as mitigating factors.[67] According to the Court, this mandatory sentencing scheme posed “too great a risk of disproportionate punishment” because it made “youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence.”[68]

The Court did not rely on the two-part categorical exemption test in its holding.[69] Rather, it combined its reasoning in Roper and Graham regarding juvenile culpability with precedent requiring individualized sentencing when imposing capital punishment.[70] The Court noted that life without parole should be treated similarly to capital punishment when the offenders are juveniles because it is such a severe sentence.[71] Therefore, because youth is significant in sentencing, the Court held that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”[72]

II.  Scientific Findings Surrounding the Culpability of Young Adults

This Part outlines the behavioral, psychological, and neurological research surrounding the culpability of eighteen- to twenty-year-olds. As it will show, eighteen- to twenty-year-olds’ brains are similar to those of juveniles. Therefore, they should be viewed similarly to adolescents in terms of culpability due to the seriousness of life without parole.[73]

A.  Behavioral and Psychological Research

Behavioral and psychological research reveal eighteen- to twenty-year-olds are more similar to adolescents than older adults.[74] For example, research shows impulsiveness increases until early adulthood and subsequently declines.[75] Eighteen- to twenty-year-olds score lower than older adults on a test measuring the anticipation of consequences,[76] and those under twenty-one years of age are more likely to engage in risky behavior and less likely to be sensitive to negative consequences than those between twenty-two and thirty years of age.[77] One study showed college-aged adults had a lesser ability to evaluate a situation before acting when compared to older adults, but there was no statistically significant difference in this ability when college-aged adults were compared to adolescents.[78] In regards to delinquency, there was no statistically significant difference in rates of offenses between college-aged adults and adolescents, but there was a difference between college-aged adults and older adults.[79] Furthermore, eighteen- to twenty-one-year-olds were more similar to ten- to seventeen-year-olds in a study measuring psychosocial maturity than they were to those who were at least twenty-six years old.[80]

Research suggests eighteen- to twenty-year-olds are also highly susceptible to peer pressure.[81] One study of 380 eighteen- to twenty-five-year-olds, with a mean age of twenty,[82] found that “antisocial peer pressure was a highly significant (p < 0.001) predictor of reckless substance use and total recklessness . . . [and] . . . a more marginally significant (p < 0.05) predictor of reckless driving and sexual behaviors.”[83] This indicates that “the reputedly ‘adolescent’ characteristic of peer pressure towards antisocial behavior continues to have an important influence into emerging adulthood” and thus “[p]eer pressure would . . . appear to be a suitable target for intervention for all youth, at least until the early-twenties age group.”[84]

B.  Neurological Research

Neurological research also highlights how eighteen- to twenty-year-olds differ from older adults. Research has shown that human brains are not fully mature until at least the age of twenty-five.[85] It has been recognized that “college-aged individuals may have yet to fully develop neurologically . . . and thus may not be equipped for mature judgment,”[86] and that “[h]igher-order executive function, emotional regulation, and impulse control also improve through the mid-twenties.”[87]

The prefrontal cortex, which is the area of the brain “associated with voluntary behavior control and inhibition such as risk assessment, evaluation of reward and punishment, and impulse control,” is “one of the last brain regions to mature.”[88] Eighteen- to twenty-year-olds’ prefrontal cortexes are undeveloped in two ways.[89] First, the gray matter of the brain has not fully matured until after age twenty.[90] Through a process called pruning, gray matter decreases as the brain matures.[91] Pruning is a process that enhances overall brain function because it “leads to greater efficiency of neural processing and strengthens the brain’s ability to reason and consistently exercise good judgment.”[92] The prefrontal cortex is “one of the last regions where pruning is complete and this region continues to thin past adolescence.”[93] Therefore, “one of the last areas of the brain to reach full maturity . . . is the region most closely associated with . . . the ability to reliably and voluntarily control behavior.”[94]

Second, the white matter of the brain does not fully mature until after age twenty.[95] White matter facilitates communication between different parts of the brain in a fast and reliable manner.[96] According to the American Medical Association, “resistance to peer influence . . . may be linked to the development of greater connectivity between brain regions,” and “the development of improved self-regulatory abilities during and after adolescence is positively correlated with white matter maturation through the process of myelination.”[97]

The underdevelopment of gray and white matter also impacts the brain’s reward system, which makes eighteen- to twenty-year-olds more susceptible to outside pressures than older adults.[98] According to one neuroscientist, “[t]he brain’s reward system becomes highly active right around the time of puberty and then gradually goes back to an adult level, which it reaches around age 25.”[99] Due to these changes, “young adults become much more sensitive to peer pressure than they were earlier or will be as adults. . . . [A] 20 year old is 50 percent more likely to do something risky if two friends are watching than if he’s alone.”[100] This neurological research, in addition to the behavioral and psychological research discussed above, supports the conclusion that eighteen- to twenty-year-olds lack the culpability for their crimes necessary to sentence them to life without parole.

III. Application of the Court’s Two-Part Categorical Exemption Test

This Part argues that the categorical exemption test should be extended to eighteen- to twenty-year-olds for life without parole.[101] If there is a national consensus against this sentencing practice, and if such a sentence is disproportionate to the culpability of this class of offenders, then the Court should hold that the Eighth Amendment categorically bans the sentencing of eighteen- to twenty-year-olds to life without parole.[102] Applying the Court’s categorical exemption test leads to the conclusion that eighteen- to twenty-year-olds should be excluded from life without parole sentences.

A.  Part One: There is a National Consensus Against Sentencing Eighteen- to Twenty-Year-Olds to Life Without Parole

The first part of the Court’s categorical exemption analysis requires determining whether a national consensus against the sentencing practice exists.[103] In doing so, the Court first considers “objective indicia of society’s standards, as expressed in legislative enactments and state practice.”[104] However, the Court has recognized “actual sentencing practices” are also integral when inquiring into national consensus.[105] A review of sentencing practices suggest there is a national consensus opposed to sentencing eighteen- to twenty-year-olds to life without parole.

Few statistics exist on the subject,[106] but it is clear the imposition of life imprisonment in the federal criminal justice system[107] is rare, regardless of age.[108] In 2013, only 153 offenders were sentenced to life imprisonment in the federal system.[109] There are at least 45 federal statutes requiring life imprisonment as a minimum sentence, and 69 of those 153 offenders were subject to this mandatory minimum.[110] Of the remaining 84 cases, 79.8% were subjected to guidelines where a life sentence was the only term of imprisonment provided.[111] The United States Sentencing Commission (the “Commission”) specifically provides for life imprisonment in only four of the over 150 guidelines in the Commission’s Guidelines Manual.[112] Even though life imprisonment is possible at the high end of sentencing ranges for other offenses, life sentences “generally occur only in cases where multiple sentencing enhancements in the guidelines had applied and where the offender had a significant prior criminal record.”[113] As of January 2015, there were 4436 federal prisoners serving life sentences, which is only 2.5% of the offenders in the Federal Bureau of Prisons’ system.[114]

Statistics specifically involving eighteen- to twenty-year-olds suggest that sentencing this class of offenders to life without parole is uncommon. The ages of the 153 federal offenders sentenced to life imprisonment in 2013 ranged between twenty- and eighty-years-old, with an average age of thirty-seven.[115] This means that of the few people sentenced to life in prison in federal court, no eighteen- or nineteen-year-olds were sentenced to federal life imprisonment in 2013.[116]

Even studies broadly examining the ages of offenders suggest that young adults are rarely sentenced to life without parole. A Bureau of Justice Statistics study concluded that in 2013, only one percent of eighteen- to thirty-nine-year-olds were sentenced to life, life without parole, life plus additional years, or death.[117] While this study examined an extremely large age bracket that included four different types of sentences, this data supports the notion that there is a national consensus against sentencing eighteen- to twenty-year-olds to life without parole. If only one percent of offenders in an age bracket spanning twenty-one years was sentenced to the harshest punishments in the criminal justice system, then it is likely that only a tiny portion of this already small statistic was between eighteen and twenty years old when they were sentenced to life without parole in 2013.[118]

Reading these Bureau of Justice statistics alongside a smaller, sentence-specific study further supports the idea that there is a national consensus against this sentencing practice. Out of 355 prisoners ranging from eighteen to fifty-seven years old at the time of arrest, who were sentenced to life without parole for nonviolent offenses, only 5.4% were twenty years old or younger.[119] If the American Civil Liberties Union’s data is an accurate reflection of the entire prison population serving life without parole sentences for nonviolent crimes, then only roughly 5.4% of these prisoners were between eighteen and twenty years old when they committed their crimes.[120]

While sentencing eighteen- to twenty-year-olds to life without parole is not statutorily barred, “those sentences are most infrequent” according to the few statistics that exist.[121] The Graham Court concluded there was a national consensus against imposing life without parole on juvenile nonviolent offenders because the sentence was so rare, despite the numerous opportunities to administer it.[122] Similarly, the infrequency of sentencing eighteen- to twenty-year-olds to life without parole does not stem from a lack of opportunity, as this age group is statistically the most violent.[123] The top four individual age groups arrested for murder and non-negligent manslaughter in 2010 were nineteen-year-olds, eighteen-year-olds, twenty-one-year-olds, and twenty-year-olds, respectively.[124] While eighteen- to twenty-year-olds—along with twenty-one-year-olds—are statistically the most violent,[125] only one percent of eighteen- to thirty-nine-year-olds were sentenced to life, life without parole, life plus years, or death in 2013.[126]

Even though sentencing this class of offenders to life without parole is rare, so long as it is legally permissible, there is an intolerable risk of sentencing an eighteen- to twenty-year-old to life without parole when he or she lacks the culpability to deserve such an extreme sentence. While the statistics cited above are not conclusive, they facially satisfy the first of the Court’s two necessary conditions for categorical exemption because there appears to be a national consensus against sentencing eighteen- to twenty-year-olds to life without parole.

B.  Part Two: Life Without Parole is a Disproportionate Punishment for Eighteen- to Twenty-Year-Olds

The second prong of the Court’s categorical exemption test requires determining whether sentencing eighteen- to twenty-year-olds to life without parole violates the Eighth Amendment.[127] This analysis requires “consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question” and whether the practice serves legitimate penological goals.[128] Using the Court’s logic, sentencing eighteen- to twenty-year-olds to life without parole is a disproportionate punishment, regardless of the crime, and the three mitigating characteristics recognized of juveniles negate the penological justifications for sentencing eighteen- to twenty-year-olds to life without parole.[129]

  1. The Lack of Culpability of Eighteen- to Twenty-Year-Olds

As discussed above, eighteen- to twenty-year-olds are similar to juveniles in that they are prone to risky behavior[130] and susceptible to negative outside influences.[131] According to the Court, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.”[132] However, the mitigating qualities the Court was referring to have not yet subsided by age eighteen, and even the Court has recognized this.[133] The Court has also acknowledged that “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”[134] For this same reason, the criminal justice system should not hold psychologically and neurologically immature eighteen- to twenty-year-olds to the same standard of culpability as thirty-year-olds.

  1. The Severity of Life Without Parole

The Court recognized that “life without parole is ‘the second most severe penalty permitted by law.’”[135] Life without parole “deprives the convict of the most basic liberties without giving hope of restoration.”[136] It stands for a “denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.”[137] The Court acknowledged that life without parole is an especially severe punishment for juveniles because “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.”[138]

Similarly, an eighteen- to twenty-year-old and a seventy-five-year-old would receive the same punishment in name only. There is little difference between sixteen years of age and twenty years of age when one is framing the discussion around the years of life ahead of them. Eighteen- to twenty-year-olds still have numerous years and a greater percentage of their lives ahead of them than older offenders. For this reason, life without parole is equally severe for eighteen- to twenty-year-olds as it is for juveniles.

  1. The Inadequacy of Penological Justifications for Life Without Parole

The Court has considered each traditional penological justification and held that they are inadequate to support sentencing juvenile non-homicide offenders to life without parole.[139] The Court’s reasoning for each penological justification applies to eighteen- to twenty-year-olds. The first justification, retribution, is “an attempt to express the community’s moral outrage or . . . an attempt to right the balance for the wrong to the victim.”[140] However, while retribution is a legitimate penological justification for punishment, “‘[t]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.’”[141] Behavioral, psychological, and neurological research indicate eighteen- to twenty-year-olds are more similar to juveniles than to older adults in regards to traits that influence culpability, including risk-taking,[142] temperance,[143] and susceptibility to peer pressure.[144] Just as “retribution does not justify imposing the second most severe penalty on the less culpable juvenile nonhomicide offender,”[145] it does not justify imposing this sentence on eighteen- to twenty-year-olds who lack the culpability of older adults.

The second justification, deterrence, should also be discounted. The Graham Court noted that “‘the same characteristics that render juveniles less culpable than adults suggest . . . that juveniles will be less susceptible to deterrence.’”[146] Similarly, eighteen- to twenty-year-olds are less likely to be deterred because they lack culpability. They lack the ability to anticipate future consequences,[147] have lower levels of temperance,[148] and are more likely to engage in risky behavior.[149]

Third, incapacitation does not justify sentencing eighteen- to twenty-year-olds to life without parole. Just as “[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity,”[150] it also disregards eighteen- to twenty-year-olds. The neurological processes that lead to the maturation of the brain have not yet matured by eighteen years old,[151] and “[h]igher-order executive function, emotional regulation, and impulse control . . . improve through the mid-twenties.”[152] Life without parole sentences impair eighteen- to twenty-year-olds’ abilities to demonstrate they will not be risks to society for the rest of their lives.[153]

The fourth and final justification, rehabilitation, was discounted by the Court because “[t]he penalty forswears altogether the rehabilitative ideal.”[154] Denying an eighteen- to twenty-year-old’s “right to reenter the community . . . makes an irrecoverable judgment about that person’s value and place in society.”[155] As discussed above, these offenders’ brains still need time to mature.[156] Life without parole assumes eighteen- to twenty-year olds are irredeemable, and therefore does not give them the chance to reenter society and prove they are rehabilitated. Consequently, following the Court’s proportionality analysis in Graham,[157] there is no penological theory that justifies life without parole for eighteen- to twenty-year-olds.

  1. The Risks of Discretionary Life Without Parole

The Court has also addressed individualized sentencing of juveniles.[158] The Graham Court held that “‘[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive’ a sentence of life without parole for a nonhomicide crime ‘despite insufficient culpability.’”[159] Similarly, the psychological and neurological predispositions of eighteen- to twenty-year-olds are too well known to ignore. There is too great a risk that “the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the . . . offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe” than life without parole.[160] Due to these risks, individualized sentencing is insufficient for a class of individuals who lack the culpability to warrant such a harsh sentence.[161] The Court should go as far as holding that life without parole is a disproportionate sentence for eighteen- to twenty-year-olds under the Eighth Amendment.

Conclusion

Reynolds Wintersmith did not think he would die in prison, but rather thought his sentence was so unjust that it would inevitably be corrected.[162] He decided to take the advice of a fellow inmate: “You can do prison two ways. You can come here and die mentally or physically—you can make it your graveyard. Or, you can use it as a school and you can learn things that you could never learn anywhere else that will help you better your life.”[163] While Reynolds was incarcerated, he completed a 4100-hour teaching apprenticeship program in order to gain the necessary qualifications to teach.[164] He also counseled fellow inmates who struggled emotionally with their incarceration.[165] Even though he was sentenced to life without parole, he led a re-entry program that helped inmates prepare for their release from prison.[166]

President Obama commuted Reynolds’s sentence on December 19, 2013, and Reynolds was released on April 17, 2014.[167] He had served more than twenty years of his life sentence for a nonviolent crime.[168] Now, Reynolds has found a career as a counselor at an alternative Chicago high school.[169] He counsels students who face significant barriers, such as working, paying rent, and raising children, while trying to finish high school.[170]

Reynolds is a success story. A mandatory sentence wrote Reynolds off as irredeemable without giving him the chance to show he would not always be a risk to society.[171] He is able to prove himself now that he is free, but there are others still in prison who, under the current doctrine, will never get the chance to redeem themselves. The current doctrine does not reflect the value of rehabilitating offenders so they can once again be productive members of society. If offenders are imprisoned for lacking the requisite culpability for one of the harshest sentences available, the public could lose faith in the legitimacy of the criminal justice system.

The Supreme Court should interpret the Eighth Amendment to categorically exempt eighteen- to twenty-year-olds from life without parole. While the statistics addressed in this comment were not conclusive, they did suggest there is a national consensus against sentencing eighteen- to twenty-year-olds to life without parole. Furthermore, behavioral, psychological, and neurological research indicate eighteen- to twenty-year-olds lack the requisite culpability to be sentenced to such an extreme punishment. The Court should therefore apply its categorical exemption test and hold that the Eighth Amendment categorically bans the imposition of life without parole on eighteen- to twenty-year-old offenders.


*  J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2015, University of Virginia. I wish to express my sincere gratitude to Professors Mary Kelly Tate and Corinna Barrett Lain for their guidance and expertise. I would also like to thank the University of Richmond Law Review staff and editors for their assistance in preparing this comment for publication. I also wish to thank my parents, Michael and Kathleen Powell, for their unconditional love and support. Finally, I wish to convey appreciation for my fiancé, Chris Plavcan, for his unending love and encouragement; without him, I would still be without a title for this piece.

        [1].    Reynolds Wintersmith, FAMM, http://famm.org/reynolds-wintersmith/ (last visited Mar. 1, 2018) [hereinafter FAMM].

        [2].    Id.

        [3].    Id. Reynolds’s involvement with drugs was unsurprising, given his childhood. As a child, Reynolds was surrounded by drugs. John Kuhn, From the War on Drugs, a Story of Redemption, Chi. Rep. (Aug. 19, 2014), http://chicagoreporter.com/war-drugs-story-redemp tion/. When he was eleven years old, he watched his mother die of a heroin overdose. Id. After her death, he lived with his drug-dealing grandmother and was constantly amid gang violence. Id.; Annie Sweeney, Year After Obama-Ordered Prison Release, Ex-Drug Dealer Finds Career, Chi. Trib. (Jan. 1, 2015), http://chicagotribune.com/news/ct-life-after-prison-met-20141229-story.html. After his grandmother was sent to prison, Reynolds began to sell drugs to provide for his younger siblings when he was seventeen years old. Kuhn, supra; Sweeney, supra. It was not long before the adults in the gang brought him further into the drug ring as a leader. Kuhn, supra; FAMM, supra note 1. He was arrested when he was nineteen years old and convicted on four counts as part of a conspiracy to possess crack cocaine with intent to distribute. Am. Civil Liberties Union, A Living Death: Life Without Parole for Nonviolent Offenses 67 (2013), https://www.aclu.org/files/assets /111813-lwop-complete-report.pdf; Kuhn, supra.

        [4].    Kuhn, supra note 3. To calculate his sentence, Reynolds’s crimes were run through a formula that considered several factors, which resulted in a sentence of life plus forty years in federal prison. Id. Reynolds was effectively sentenced to life without parole because the federal government abolished parole in the 1980s. See infra note 107.

        [5].    FAMM, supra note 1.

        [6].    See, e.g., Graham v. Florida, 560 U.S. 48, 74 (2010); Roper v. Simmons, 543 U.S. 551, 578 (2005).

        [7].    See Roper, 543 U.S. at 578.

        [8].    Graham, 560 U.S. at 74–75.

        [9].    See id. at 60–61; Roper, 543 U.S. at 564–68.

      [10].    Though beyond the scope of this comment, this class of offenders should also be categorically spared from the death penalty. See generally Andrew Michaels, A Decent Proposal: Exempting Eighteen- to Twenty-Year-Olds From the Death Penalty, 40 N.Y.U. L. & Soc. Change 139 (2016).

      [11].    See Am. Civil Liberties Union, supra note 3, at 26 tbl.7; E. Ann Carson & William J. Sabol, U.S. Dep’t of Justice, Aging of the State Prison Population, 1993–2013, at 21 tbl.15 (2016) (basing data on prisoners sentenced to more than one year in state prison on new court commitments).

      [12].    See, e.g., Jeffrey Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Rev. 339, 343 (1992) [hereinafter Arnett, Reckless Behavior] (reckless behavior); Graham Bradley & Karen Wildman, Psychosocial Predictors of Emerging Adults’ Risk and Reckless Behaviors, 31 J. Youth & Adolescence 253, 253–54, 263 (2002) (peer pressure).

      [13].    Roper, 543 U.S. 551.

      [14].    Graham, 560 U.S. 48.

      [15].    Miller v. Alabama, 567 U.S. 460 (2012).

      [16].    While exempting twenty-four- and twenty-five-year-olds from life without parole would be ideal, this paper posits that our country is much more likely to accept the categorical exemption of eighteen- to twenty-year-olds than of eighteen- to twenty-five-year-olds. Twenty-one years of age is already a culturally significant marker of maturity. See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (codified at 18 U.S.C. § 922(b)(1), (c)(1) (2012)) (prohibiting anyone under twenty-one years of age from purchasing handguns from Federal Firearms Licensees); National Minimum Drinking Age Act of 1984, Pub. L. No. 98-363, 98 Stat. 437 (codified at 23 U.S.C. § 158 (2012)) (prohibiting anyone under twenty-one years of age from purchasing alcohol); Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110-351, § 201, 122 Stat. 3949 (2008) (providing states with financial incentives to extend the age of eligibility for foster care services to twenty-one years of age). Twenty-two, twenty-three, twenty-four, and twenty-five are not culturally significant ages. Until twenty-five years of age reaches the same cultural significance as twenty-one, society will likely be less willing to support the categorical exemption of twenty-one to twenty-five-year-olds.

      [17].    See, e.g., Atkins v. Virginia, 536 U.S. 304, 312–13 (2002) (describing the categorical tests).

      [18].    Id. at 321 (mentally disabled offenders); Roper, 543 U.S. at 578 (juvenile offenders).

      [19].    Graham, 560 U.S. at 74–75.

      [20].    Miller, 567 U.S. at 479.

      [21].    Atkins, 536 U.S. at 321. The Court emphasized it had repeatedly held that “it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Id. at 311 (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

      [22].    Atkins, 536 U.S. at 312–13.

      [23].    Id. at 314–16.

      [24].    Id. at 316.

      [25].    Id. at 321. The second prong of this test invokes what is known as the proportionality principle. See id. at 311 (“We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment.”).

      [26].    Id. at 306.

      [27].    Id. at 306, 319–20.

      [28].    Id. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 406 (1986)).

      [29].    Roper v. Simmons, 543 U.S. 551, 578 (2005). Roper extended the protection to sixteen- and seventeen-year-olds as the Court had already provided for those under sixteen years of age. Id. at 570–71; see Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).

      [30].    Roper, 543 U.S. at 564.

      [31].    Id. at 567–68. The Court even recognized that “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Id. at 575.

      [32].    Id. at 568–75.

      [33].    Id. at 568 (quoting Atkins, 536 U.S. at 319).

      [34].    Id. at 569–70. The Court cited Arnett, Reckless Behavior, supra note 12, for the first finding; Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychol. 1009, 1014 (2003), for the second finding; and Erik H. Erikson, Identity: Youth and Crisis 26–28 (1968), for the third finding. The Court noted these differences reflected both what “any parent knows” and what scientific and sociological studies tend to confirm. Roper, 543 U.S. at 569.

      [35].    Roper, 543 U.S. at 571.

      [36].    Id. at 574.

      [37].    Thompson v. Oklahoma held that offenders under sixteen years of age could not be sentenced to the death penalty. 487 U.S. 815, 838 (1988).

      [38].    Roper, 543 U.S. at 574.

      [39].    Id. at 572–73. There is an American Psychiatric Association rule forbidding psychiatrists from diagnosing juveniles with antisocial personality disorder, otherwise known as psychopathy or sociopathy. Id. at 573 (citing Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 701–06 (4th ed. text rev. 2000)). The Court argued that “[i]f trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, . . . [s]tates should refrain from asking jurors to issue a far graver condemnation—that a juvenile offender merits the death penalty.” Id.

      [40].    Id. at 564; Atkins v. Virginia, 536 U.S. 304, 312–13 (2002).

      [41].    Graham v. Florida, 560 U.S. 48, 61–62 (2010).

      [42].    Id. at 74–75.

      [43].    Id. at 62.

      [44].    Id.

      [45].    Id.

      [46].    Id. at 64. Florida imposed the significant majority of sentences, and California, Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina, and Virginia imposed the remainder. Id. at 63–65 (citations omitted).

      [47].    See id. at 62.

      [48].    Id. at 68–69.

      [49].    Id. at 69–71.

      [50].    Id. at 71–74.

      [51].    Id. at 68 (citing Roper v. Simmons, 543 U.S. 551, 569–70 (2005)). The Court cited juveniles’ (1) “lack of maturity and . . . underdeveloped sense of responsibility”; (2) vulnerability “to negative influences and outside pressures, including peer pressure”; and (3) character being “not as well formed” as adults’ character. Id. (quoting Roper, 543 U.S. at 569–70).

      [52].    Id. at 71.

      [53].    Id. at 68 (citing Roper, 543 U.S. at 569).

      [54].    Id.

      [55].    Id. (citing Brief for the American Medical Ass’n et al. as Amici Curiae in Support of Neither Party at 16–24, Graham, 560 U.S. 48 (Nos. 08-7412, 08-7621) [hereinafter Brief for the AMA]; Brief for the American Psychological Ass’n et al. as Amici Curiae Supporting Petitioners at 22–27, Graham, 560 U.S. 48 (Nos. 08-7412, 08-7621)).

      [56].    Id. at 69.

      [57].    Id. at 69–70.

      [58].    Id. at 70. The Court reasoned that “[a] 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” Id. (citation omitted).

      [59].    Id.

      [60].    Id. at 71–74.

      [61].    Id. at 71–72.

      [62].    Id. at 72.

      [63].    Id. at 72–73.

      [64].    Id. at 73–74.

      [65].    Id. at 74.

      [66].    See Miller v. Alabama, 567 U.S. 460, 471–73, 477, 479 (2012).

      [67].    Id. at 474. The Court reasoned that precedent had established that “children are constitutionally different from adults for purposes of sentencing.” Id. at 471.

      [68].    Id. at 479.

      [69].    See id. at 480, 482–83. Although the Court discussed “objective indicia” in regards to the first prong of the categorical exemption test, id. at 482–83, the crux of the holding relied on a line of precedent mandating individualized sentencing, id. at 483, 485 n.11.

      [70].    See id. at 470–71.

      [71].    See id. at 474.

      [72].    Id. at 489. The Court pointed out that the “distinctive (and transitory) mental traits and environmental vulnerabilities” of juveniles are not crime-specific. Id. at 473. However, the Court still limited its holding to juveniles convicted of homicide offenses. Id. at 479–80. One of the petitioners’ arguments was that the Eighth Amendment requires a categorical ban on life without parole for all juveniles, regardless of the crime, at least for those under fourteen years old. Id. at 479. The Court declined to consider the argument because it reasoned it could sufficiently decide Miller by holding that life without parole cannot be mandatory for juvenile homicide offenders. Id. at 479–80.

      [73].    This comment posits that our country is much more likely to accept the categorical exemption of eighteen- to twenty-year-olds than of eighteen- to twenty-five-year-olds. See supra note 16.

      [74].    See, e.g., Jeffrey Jensen Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psychologist 469, 469 (2000); Bradley & Wildman, supra note 12, at 253–54, 263; Kathryn L. Modecki, Addressing Gaps in the Maturity of Judgment Literature: Age Differences and Delinquency, 32 Law & Hum. Behav. 78, 85 tbl.3 (2007) (reporting a distinct difference between college-aged and older adult participants on measures of temperance).

      [75].    Steinberg & Scott, supra note 34, at 1013 (citing Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 Law & Hum. Behav. 249, 260 (1996)) (“[I]mpulsivity increases between middle adolescence and early adulthood and declines thereafter . . . .”).

      [76].    Laurence Steinberg et al., Age Differences in Future Orientation and Delay Discounting, 80 Child Dev. 28, 35 tbl.1 (2009) [hereinafter Steinberg et al., Age Differences].

      [77].    See Elizabeth Cauffman et al., Age Differences in Affective Decision Making as Indexed by Performance on the Iowa Gambling Task, 46 Developmental Psychol. 193, 203–04 (2010).

      [78].    Modecki, supra note 74, at 85 (“[O]n measures of temperance, adults were significantly more mature than young-adults, college students, and adolescents.”). While this study recognizes that young adults, who are between the ages of twenty-two and twenty-seven, scored similarly to college-aged adults, this simply reinforces the claim that full maturity, both psychological and neurological, is not attained until the mid- to late-twenties. Id. at 89 (“[E]motional temperance may continue to improve through the mid to late twenties.”).

      [79].    See id. at 86 (“[A]dults showed less delinquency than the adolescent, college student, and young-adult samples, whereas young-adults showed less delinquency than adolescents or college students.”). Modecki examined three different areas of delinquency in her research: “stealing offenses, property offenses, and assault offenses.” Id. at 84.

      [80].    See Laurence Steinberg et al., Are Adolescents Less Mature Than Adults?: Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip Flop, 64 Am. Psychologist 583, 591 fig.3 (2009).

      [81].    See, e.g., Bradley & Wildman, supra note 12, at 263.

      [82].    Id. at 257.

      [83].    Id. at 263.

      [84].    Id.

      [85].    See, e.g., Barbara L. Atwell, Rethinking the Childhood-Adult Divide: Meeting the Mental Health Needs of Emerging Adults, 25 Alb. L.J. Sci. & Tech. 1, 20 (2015) (“One way to best serve emerging adults is to recognize that their brain development continues until the age of twenty-five.”); Nico U.F. Dosenbach et al., Prediction of Individual Brain Maturity Using fMRI, 329 Sci. 1358, 1359 fig.1 (2010) (reporting that functional brain maturity levels out around twenty-five years of age); Robin Marantz Henig, What Is It About 20-Somethings?, N.Y. Times (Aug. 18, 2010), http://www.nytimes.com/2010/08/22/magazine /22Adulthood-t.html (“This new understanding comes largely from a longitudinal study of brain development sponsored by the National Institute of Mental Health, which started following nearly 5,000 children at ages 3 to 16 . . . . The scientists found the children’s brains were not fully mature until at least 25.”).

      [86].    Modecki, supra note 74, at 79.

      [87].    Vivian E. Hamilton, Immature Citizens and the State, 2010 B.Y.U. L. Rev. 1055, 1115 (2010).

      [88].    Brief for the AMA, supra note 55, at 16–18 (citations omitted).

      [89].    Id. at 18.

      [90].    See id. at 20. Gray matter is comprised of “neurons that perform the brain’s tasks, such as the higher functions that are carried out in the prefrontal cortex.” Id. at 19.

      [91].    Id.

      [92].    Id.

      [93].    Id. at 21.

      [94].    Id.

      [95].    Catherine Lebel & Christian Beaulieu, Longitudinal Development of Human Brain Wiring Continues from Childhood into Adulthood, 31 J. Neuroscience 10937, 10939 fig.2 (2011) (reporting a statistically significant increase in white brain matter volume for subjects between twenty and twenty-five years old); Adolf Pfefferbaum et al., A Quantitative Magnetic Resonance Imaging Study of Changes in Brain Morphology from Infancy to Late Adulthood, 51 Archives Neurology 874, 885 (1994) (reporting that after age twenty, white matter volume did not change until about approximately age seventy).

      [96].    Brief for the AMA, supra note 55, at 21–22, 22 n.67.

      [97].    Id. at 24. Myelin, a fatty white substance, insulates the pathways in which neural signals travel. Id. at 21–22. Myelination is the process by which these pathways are coated with myelin, and this process “continues through adolescence and into adulthood.” Id. at 22.

      [98].    See Brain Maturity Extends Well Beyond Teen Years, NPR (Oct. 10, 2011, 12:00 PM), http://www.npr.org/templates/story/story.php?storyId=141164708.

      [99].    Id.

    [100].    Id.

    [101].    While the Supreme Court has held that juveniles are categorically exempt from life without parole, mandatory or discretionary, for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 74–75 (2010), it has declined to rule on whether juveniles should be categorically exempt from life without parole for all crimes, Miller v. Alabama, 567 U.S. 460, 479–80 (2012). Others have argued the Eighth Amendment should be interpreted to categorically exempt all juveniles from life without parole, whether mandatory or discretionary. See generally Mary Berkheiser, Developmental Detour: How the Minimalism of Miller v. Alabama Led the Court’s “Kids Are Different” Eighth Amendment Jurisprudence Down a Blind Alley, 46 Akron L. Rev. 489 (2013) (criticizing Miller for failing to hold that the Eighth Amendment categorically bans the imposition of life without parole on juveniles, regardless of the crime). While it is beyond the scope of this comment, it is the author’s position that the Eighth Amendment should in fact be interpreted to require a categorical ban on life without parole for juvenile offenders, regardless of the crime or whether the sentence is mandatory. This Part therefore assumes the categorical exemption test is extended to all juveniles with regard to life without parole and to eighteen- to twenty-year-olds with regard to the death penalty. See generally Michaels, supra note 10.

    [102].    See, e.g., Roper v. Simmons, 543 U.S. 551, 567–75 (2005).

    [103].    Graham, 560 U.S. at 61.

    [104].    Roper, 543 U.S. at 563.

    [105].    Graham, 560 U.S. at 62.

    [106].    While it is beyond the scope of this paper, further scholarly study should address why there is a lack of information regarding sentencing practices unless they involve juveniles or the death penalty, and how this lack of transparency could potentially decrease the public’s confidence in the criminal justice system.

    [107].    Federal life imprisonment is effectively “life without parole” because federal parole was abolished in the 1980s. See U.S. Sentencing Comm’n, Guidelines Manual 2016, at 2 (2016), http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/GLMFull.pdf.

    [108].    Glenn R. Schmitt & Hyun J. Konfrst, U.S. Sentencing Comm’n, Life Sentences in the Federal System, at 1 (2015), http://www.ussc.gov/sites/default/files/pdf/ research-and-publications/research-projects-and-surveys/miscellaneous/20150226_Life_Se ntences.pdf.

    [109].    Id.

    [110].    Id.

    [111].    Id. at 9.

    [112].    Id. at 3. These guidelines are for offenses involving “murder, treason, certain drug trafficking offenses, and certain firearms offenses committed by career offenders.” Id.

    [113].    Id. at 3–4.

    [114].    Id. at 4.

    [115].    Id. at 7.

    [116].    See id.

    [117].    Carson & Sabol, supra note 11, at 21 tbl.15.

    [118].    The author recognizes that this conclusion is based on inferences. However, because of the lack of data on this subject, these are some of the only viable statistics available that contribute to the national consensus discussion required by the first part of the Court’s categorical exemption test. See supra note 106.

    [119].    Am. Civil Liberties Union, supra note 3, at 26 tbl.7.

    [120].    Again, the author recognizes this is far too small of a sample size to conclusively claim that the ACLU’s data is reflective of the entire prison population. See supra note 106.

    [121].    See Graham v. Florida, 560 U.S. 48, 62 (2010).

    [122].    Id. at 67.

    [123].    See Howard N. Snyder, U.S. Dep’t of Justice, Arrest in the United States, 1990–2010, at 17–18 tbl.3 (2012), https://www.bjs.gov/content/pub/pdf/aus9010.pdf.

    [124].    Id.

    [125].    See id.

    [126].    Carson & Sabol, supra note 11, at 21 tbl.15.

    [127].    See Graham, 560 U.S. at 61.

    [128].    Id. at 67.

    [129].    See id. at 68, 74, 77–78 (holding that juveniles’ mitigating characteristics rendered penological justifications inadequate to justify the severity of life without parole for juvenile non-homicide offenders, and discretionary sentencing of juveniles to life without parole was too dangerous of a risk to allow).

    [130].    See, e.g., Cauffman et al., supra note 77, at 203–04.

    [131].    See, e.g., Bradley & Wildman, supra note 12, at 263.

    [132].    Roper v. Simmons, 543 U.S. 551, 570 (2005) (quoting Johnson v. Texas, 509 U.S. 350, 368 (1993)).

    [133].    Id. at 574 (“The qualities that distinguish juveniles from adults do not disappear when an individual turns 18.”).

    [134].    Id. at 570.

    [135].    Graham v. Florida, 560 U.S. 48, 69 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)).

    [136].    Id. at 69–70.

    [137].    Id. at 70 (citation omitted).

    [138].    Id.

    [139].    Id. at 74.

    [140].    Roper v. Simmons, 543 U.S. 551, 571 (2005).

    [141].    Graham, 560 U.S. at 71 (quoting Tison v. Arizona, 481 U.S. 137, 149 (1987)) (alteration in original).

    [142].    Cauffman et al., supra note 77, at 204.

    [143].    Modecki, supra note 74, at 85.

    [144].    Bradley & Wildman, supra note 12, at 263.

    [145].    Graham, 560 U.S. at 72.

    [146].    Id. (quoting Roper v. Simmons, 543 U.S. 551, 571 (2005)).

    [147].    Steinberg et al., Age Differences, supra note 76, at 35 & tbl.1.

    [148].    Modecki, supra note 74, at 85.

    [149].    Cauffman et al., supra note 77, at 204.

    [150].    Graham, 560 U.S. at 73.

    [151].    See Brief for the AMA, supra note 55, at 16–24.

    [152].    Hamilton, supra note 87, at 1115.

    [153].    See Graham, 560 U.S. at 73.

    [154].    Id. at 74.

    [155].    See id.

    [156].    See Brief for the AMA, supra note 55, at 16–24.

    [157].    Graham, 560 U.S. at 74.

    [158].    Id. at 77–79.

    [159].    Id. at 78 (quoting Roper v. Simmons, 543 U.S. 551, 572–73 (2005)).

    [160].    See Roper, 543 U.S. at 573.

    [161].    Again, while it is beyond the scope of this comment, the Court should apply this same logic to juvenile homicide offenders. See supra note 101.

    [162].    See Sweeney, supra note 3.

    [163].    Kuhn, supra note 3.

    [164].    Id.

    [165].    Id.

    [166].    FAMM, supra note 1.

    [167].    Id.

    [168].    Kuhn, supra note 3.

    [169].    Sweeney, supra note 3.

    [170].    Id.

    [171].    See Kuhn, supra note 3.

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