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Journal of Civil Rights and Economic Development http://jcred.org Sun, 22 Apr 2018 18:23:35 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.12 53100062 JCRED Members Nicholas Oliva ’18, Allison Cabibbo ’19, Janelle James ’19 and Samantha Ojo ’19 Spend Spring Break Helping People in Need http://jcred.org/jcred-members-nicholas-oliva-18-allison-cabibbo-19-janelle-james-19-and-samantha-ojo-19-spend-spring-break-helping-people-in-need/ http://jcred.org/jcred-members-nicholas-oliva-18-allison-cabibbo-19-janelle-james-19-and-samantha-ojo-19-spend-spring-break-helping-people-in-need/#respond Sun, 22 Apr 2018 18:08:02 +0000 http://jcred.org/?p=1250 Six months after Hurricane Maria struck Puerto Rico, the ccommonwealth is still struggling to recover. Almost 40 percent of the island’s residents were already living below the poverty line when disaster hit and, with Maria’s destruction of the power grid, infrastructure, homes, and livelihoods, many people remain in dire need of aid, including pro bono legal assistance.

Responding to the call for help, a group of St. John’s Law students spent their spring break in Puerto Rico contributing to the post-Maria relief efforts. It was one of four spring break service trips organized by students from the Law School’s Public Interest Center and funded through its annual Public Interest Auction.

Partnering with host organization Ayuda Legal Huracan Maria, the St. John’s volunteers in Puerto Rico took on different assignments. They translated a legal manual for lawyers to use during times of natural disaster; researched disaster relief grants; and examined and reported on services provided by, and funding obtained by, reproductive health clinics after natural disasters. 

“This was one of the best experiences I’ve had in law school,” says Sharlene Disla ’19, who led the St. John’s group that included Christina Borges ’19, John Burger ’20, Yesenia Campiglia ’18, Denise Feliciano ’18, and Nicholas Oliva ’18. “As a Dominican-American, I’ve always been close to the Puerto Rican community because the islands are neighbors, so I was eager to help. There were students on the trip who were visiting the island for the first time, and there was one student of Puerto Rican descent who is a frequent visitor. Regardless, we were all excited to get to work wherever we were needed.” 

With equal enthusiasm, St. John’s Law students Ben Handy ’20, Kristopher Peters ’20, Allyson Rivard ’20, and Janel Rottkamp ’18 traveled to Houston, TX to volunteer with Lone Star Legal Aid, an organization that provides free legal aid to help meet the needs of communities impacted by Hurricane Harvey. While assigned to different departments and projects, most of the students spent time observing in court, which was a highlight of their volunteer experience.

“Going to court was a very valuable learning opportunity for me, even with the amount of time I’ve spent in courtrooms during and before law school,” Rottkamp shares. “There’s a lot that you can learn by comparing differences across jurisdictions, particularly in terms of dynamics between parties and the judges, procedure, demeanor, and strategy.”

Kristopher Peters welcomed the service opportunity. “Doing substantive legal work while giving back to the community so early in my law school career was an extremely rewarding experience,” he says. “I was able to make a positive impact on people’s lives, and made some great memories with the other law students on my trip. I’d definitely do it again.”

While their fellow law students assisted with natural disaster relief efforts, another group from St. John’s Law spent spring break working to alleviate a different kind of humanitarian crisis.

Between 2015 and 2016 alone, over 180,000 families and children were apprehended at southern U.S. border crossings after making the perilous journey from Central America’s Northern Triangle of Guatemala, El Salvador, and Honduras. Placed in a fast-track deportation process called “expedited removal,” nearly all seek asylum to escape pervasive crime, gang violence, and domestic abuse in their home countries.

Among the detainees are hundreds of women and children housed at the Karnes County Residential Center in Karnes City, TX, a small oil town about 54 miles southeast of San Antonio. That’s where the St. John’s group of Shandy Abraham ’19, Victoria Benalcazar ’20, Jasmine Brown ’19, Allie Cabibbo ’19, Nicole Camacho ’20, and Sara Krastins ’20 offered their help in partnership with with the Refugee and Immigrant Center for Education and Legal Services (RAICES).

“We spent the week working with attorneys and advocates from RAICES’s Karnes Pro Bono Project,” says Cabibbo, who serves on the Public Interest Center’s executive board as director of service trips. “The detained women and children must have a credible or reasonable fear interview to determine if they will be permitted to apply for asylum. We helped them prepare for the interviews by listening to their stories and educating them about the process. It was very sad to learn about the trauma the women and their children have endured, and to consider the dangers they face if they return home. But it was uplifting to use our legal skills to help alleviate some of their suffering.”

For Camacho, the service trip was an incomparable experience for her 1L year. “One of the reasons I came to St. John’s Law was because of its historical commitment to public service, which aligns with my own lifelong commitment to giving back to the community,” she says. “It was very rewarding to witness firsthand the positive impact that our assistance had on our clients, and I appreciate the Public Interest Center and St. John’s for giving me this opportunity.”

As Cabibbo, Camacho Hernandez, and the rest of the group were assisting asylum seekers in Karnes, about 500 miles away, St. John’s Law students Denise Dessel ’19, Antonia Edwards ’19, Tori Harris ’19, Janelle James ’19, Samantha Ojo ’19, and Grace Peters ’20 were helping New Orleans residents in need. The group volunteered in the housing, child in need of care, and medical-legal partnership units at Southeast Louisiana Legal Services (SLLS), Louisiana’s largest civil legal aid organization.

“SLLS’s child in need of care unit represents children who have been neglected or abused by their parents,” Edwards explains. “SLLS creates a case plan for each child to ensure their safety and secure a successful future. I worked with the managing attorney, who has hundreds of case files. I organized the files, created summaries of each case, and identified any future action the attorney needed to take. I also observed family court proceedings and discussed a career in family court with the chief judge. It was a wonderful experience.”

Grace Peters, who volunteered in the child in need of care unit with Edwards, appreciated the opportunity to put her classroom learning into practice after just one semester at St. John’s Law. “I’m very grateful to have had this chance to work hands on in children’s services,” she says, adding: “The service trip allowed me to experience what it’s like to help bridge the justice gap as an attorney. It was inspiring to support St. John’s work for the public good in this way, and the experience reaffirmed my desire to work in the public interest advocating for children.”

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Law Enforcement Requires the Ability to Access Passcode-Protected Smartphones; One Day, Your Safety May Depend On It Too http://jcred.org/law-enforcement-requires-the-ability-to-access-passcode-protected-smartphones-one-day-your-safety-may-depend-on-it-too/ http://jcred.org/law-enforcement-requires-the-ability-to-access-passcode-protected-smartphones-one-day-your-safety-may-depend-on-it-too/#respond Tue, 03 Apr 2018 14:17:32 +0000 http://jcred.org/?p=1237  

By Nicholas A. Oliva

 

The intersection between an individual’s right to privacy and the need for law enforcement to access encrypted data caught national spotlight on December 2, 2015, when a group of co-workers gathered for training at the Inland Regional Center in San Bernardino, California. Suddenly, a door swung open, and a single masked person wearing all black, and carrying a firearm stepped inside the room. Without a word, he began opening fire. Pandemonium ensued. A second shooter joined the attack, and together they fired over 100 rounds before fleeing in a black SUV, leaving 14 people dead and 22 people injured.

Afterwards, police processed the crime scene and discovered a password-protected iPhone in the shooters’ car. Officials applied for numerous search warrants to search the digital devices and online accounts of the identified shooters, Syed Rizwan Farook and his wife, Tashfeen Malik. Even though they received the proper search warrants, officials were ultimately unable to bypass the phone’s password protection.

            A legal battle pitting Apple against the FBI erupted in the courts and gained national attention.The FBI demanded Apple be compelled to assist their attempts to break the passcode protection of Farook’s iPhone. Apple resisted these efforts. The legal battle ended when FBI Director James Comey revealed that his agency no longer needed Apple’e services because it had hired a third party to successfully hack Farook’s phone for more than a million dollars.

Law enforcement is no stranger to this problem of password-encryption. In fact, the Manhattan District Attorney Cyrus Vance recently reported that in his jurisdiction, investigators had been unable to execute search warrants on smartphones in over a hundred cases that included homicides, attempted murders, sexual abuse of a child, sexual trafficking, assault and robbery.

 

What if I told you that this could all have been avoided? It can be, and it should.

 

Legislation. However, password encryption simply goes too far in preventing law enforcement from accessing crucial information in criminal prosecutions. In the past, the only thing an investigator needed was a proper search warrant. Now they also need the password. So, how do you get a tech-giant like Apple to restore the broad access law enforcement once enjoyed? Simple—it needs to make business sense. The answer is to pass new legislation that would include two key components: (1) a tax penalty on manufacturers of electronic devices such as Apple who design devices that are not search-warrant-compatible; and (2) cryptographic envelope security involvingtwo sets of keys that the FBI and Apple would need to use simultaneously in order to bypass passwords. Both legal innovations would strike a balance among the needs of law enforcement, the privacy of citizens and also the rights of companies such as Apple..

            The tax penalty would mandate that ““[a]ny smartphone that is manufactured on or after [a certain date], and sold or leased in New York, shall be capable of being decrypted and unlocked by its manufacturer or its operating system provider.” So, any smartphone that is not capable of being [unlocked] . . . by its manufacturer or operating system provider will be subject to a civil penalty of $2,500 per smartphone if it can be demonstrated that the seller ‘knew at the time of the sale or lease that the smartphone was not capable of being decrypted and unlocked.’” Essentially, this change in the law would operate by using basic cost-benefit analysis. Quite simply, it would not be profitable to create a phone that could not comply with legislation that would require smartphones to be unlockable.

            Secondly, the legislation would require cryptographic envelope security. This type of security creates two keys, one held by law enforcement and one held by the device manufacturer such as Apple. Both keys would have to used in tandem in order to access password-encrypted information.

This scenario is analogous to a safety box at a bank. A safety lock box requires two keys to be accessed, one, belonging to the owner of the contents of the box, and the other, belonging to the bank where the box is stored and protected. The owner of the box must go to the bank, and ask for access to their lock box. When the person’s credentials are verified, the employee of the bank will bring them to their lock box, and insert the bank’s key. At that time, the owner of the contents of the lock box will insert their own key, thereby unlocking the box.

            Cryptographic envelope security would help to ensure that a warrant that is to be executed would comply with the Fourth Amendment, and would address a core concern raised by Apple in its litigation dispute with the FBI, and that is law enforcement having an unbridled ability to access encrypted smartphones. The safeguards afforded by the cryptographic method would allow for the balance between the right of citizens to be secure in their private information stored on cell phones, as well as law enforcement’s ability to appropriately, and only with requisite authorization, access information that is suspected to be used in furtherance of criminal investigations.

Searching Smartphones in an Unencrypted World. In practice it would work like this: Apple, having been properly incentivized by Legislation to produce cell phones readily accessible by a search warrant under penalty of Law would be able to comply with either the FBI or another law enforcement agency who seeks to obtain access to specific information contained on an individual’s iPhone. Once approved by a judge, Apple and the FBI would then simultaneously enter their own “keys” that would unlock the iPhone’s privacy settings.

            Problems such as those described by District Attorney Vance would become a thing of the past—and all without sacrificing any of the phone’s security and consumer appeal. Apple loses no value in its phones because it retains the same security abilities, and arguably creates a safer product that is conducive to law enforcement’s duty to provide security and prosecute criminals. Americans cannot afford to wait for the next tragedy to happen. These matters require our immediate attention. This legislative option provides a holistic solution strike the appropriate balance between privacy and security, and should, therefore, be adopted and implemented.

 

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Searching the Virtual Glove Compartment: Police Searches of Connected Cars http://jcred.org/searching-the-virtual-glove-compartment-police-searches-of-connected-cars/ http://jcred.org/searching-the-virtual-glove-compartment-police-searches-of-connected-cars/#respond Sun, 11 Mar 2018 17:09:44 +0000 http://jcred.org/?p=1221

 

By: Gregory Brown, Jr.

You have just been pulled over by the police. After you hand the officer your license and registration, the officer notices your baseball cap with a picture of a marihuana leaf. The officer asks if you have been smoking marihuana, and you quickly answer “no.” Nonetheless, the officer places you in handcuffs and searches inside your vehicle. The officer finds no marihuana, so she uses your car’s touchscreen display to access your text messages and call history. The officer finds the following text-message exchange between you and a contact named “Rott”:

With this information, the officer searches your car’s trunk. She finds 700 grams of marihuana and places you under arrest for criminal possession of marihuana.

Situations like the one above will become more prevalent due to the rise of Connected Cars. Connected Cars are automobiles that have Internet access and contain a variety of sensors, which allow the car to “send and receive signals, sense the physical environment around them, and interact with other vehicles or entities.” Connected Cars will account for an estimated 380 million vehicles on the road by 2021.

In 2011 alone, the United States Department of Justice found that more than 21.6 million drivers—10% of all American drivers—were involved in a police-initiated traffic stop. That same year, over 750,000 traffic stops in the United States resulted in vehicle searches.

The Supreme Court has provided less privacy protection to vehicles because of their inherent mobility and their ability to be used for transportation; this lesser expectation of privacy permits the warrantless searches. For example, an officer may search a vehicle without a warrant if she has probable cause to believe that the automobile contains contraband, but this automobile exception has traditionally been limited to the finite physical space of the vehicle itself, such as the trunk and glove compartment.

Since the digital data on a Connected Car may not be located in the physical car itself, there is a new legal question in applying the Fourth Amendment to Connected Cars: whether a warrantless search of the physical areas of the Car also permits a search of the digital data on the Car. To protect the privacy interests of Connected Car users, the Supreme Court should require police to obtain a warrant before searching digital data on a Connected Car. Requiring a warrant would be consistent with recent Supreme Court rulings about technology and the Fourth Amendment. Without a warrant requirement, the immediate searches of Connected Cars would be a backdoor circumvention of the existing warrant requirement for cell-phone data searches. In Riley v. California (2014), the Court held that police officers must obtain a warrant before searching the digital information located on a cell phone. In Riley, the Court emphasized that a search of digital information on a cell phone implicates greater individual privacy interests than a simple physical search. Cell phones implicate greater privacy interests due to their large storage capacity, the variety of information they can store, and the possibility that a search may extend beyond the data on the phone itself. In other words, advances in technology have continued to change society’s reasonable expectations of privacy. The Court’s ruling about the data on cell phones suggests that any device with similar capabilities should also be subject to a warrant requirement.

To determine whether a person exhibited a reasonable expectation of privacy, a two-prong test was laid out in Katz v. United States (1967). Applying the second prong to Connected Cars presents challenges; namely, “whether that expectation of privacy is one that society is prepared to accept as reasonable.” On one hand, the Connected Car is a vehicle, which is normally subject to a lesser expectation of privacy. On the other hand, with all the data it contains and can reveal, Connected Cars hold “the privacies of life” and should implicate greater privacy interests.

The Riley court delineated three potential variables in finding that cell phones implicate greater privacy interests: their large storage capacity, the variety of information they can store, and the possibility that a search may extend beyond the data on the phone itself. These variables are integral characteristics of a Connected Car.

Connected Cars have a large storage capacity. Connected Cars can store the data they collect on the Car onto a special hard drive; these hard drives typically hold about 200 gigabytes of data. For comparison, a single gigabyte of data holds about 75,000 hard-copy pages.

Connected Cars also store a wide variety of information. Aside from operational data and potential crash events, Connected Cars also record geographical location through GPS tracking. Connected Cars and cell phones both contain GPS tracking capabilities. Various trips to the synagogue, strip club, and abortion clinic could provide intimate details about the Car-owner’s life.

Moreover, a data search on a Connected Car might extend beyond the data on the Car itself. This is especially true with cell-phone integration. With Apple CarPlay and Android Auto, car owners have direct and indirect access to the data stored on their phone. Thus, on balance, a Connected Car is more like a cell phone instead of a plain physical vehicle.

Critics argue that the warrant requirement will deter officers from pursuing low-level offenders, but their concern is misguided. First, the warrant requirement does not prevent police officers from searching the physical vehicle under circumstances that warrant it. Second, police may still justify a warrantless search of data on a Connected Car if exigent circumstances exist. Third, several states now have judges on-call 24/7 to sign warrants. Finally, recent technological advances have made it easier to obtain a warrant. For example, more than thirty states currently allow electronic warrant applications by telephone, email, and Skype.

As technology advances, there will be a greater need for our continued commitment to the Fourth Amendment, and Connected Cars will be the next test case after cell phones. The Supreme Court should continue the direction it took in Riley and require a warrant for digital data on Connected Cars.

 

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Legal Aid Success http://jcred.org/legal-aid-success/ Wed, 22 Nov 2017 21:05:01 +0000 http://jcred.org/?p=1216 JCRED member Allie Cabibbo represented her first client in a criminal case on Monday in her Legal Aid Criminal Defense Clinic —  the case was dismissed! She will be interning at Legal Aid this summer; this is the agency she hoped to work for even before applying to law school!

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Shannon Dempsey’s team (’19) team won 1st place in Quinnipiac Competition http://jcred.org/shannon-dempseys-team-19-team-won-1st-place-in-quinnipiac-competition/ Tue, 31 Oct 2017 01:33:48 +0000 http://jcred.org/?p=1208 Shannon Dempsey’s (’19) team won 1st place in Quinnipiac Competition 

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JCRED Volunteering at the Peter J. Johnson Competition http://jcred.org/jcred-volunteering-at-the-pjj-competition/ Mon, 30 Oct 2017 14:39:14 +0000 http://jcred.org/?p=1204  

JCRED Volunteering at the PJJ Competition

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Alex Mangano ’18 placed third in the Queens District Attorney’s trial advocacy competition. http://jcred.org/alex-mangano-18-placed-third-in-the-queens-district-attorneys-trial-advocacy-competition/ Mon, 30 Oct 2017 14:34:40 +0000 http://jcred.org/?p=1201 Alex Mangano ’18 placed third in the Queens District Attorney’s trial advocacy competition.

 

 
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Giving a Voice to the 32,000: Why Immigrant Detainees Must Have First Amendment Rights http://jcred.org/giving-a-voice-to-the-32000-why-immigrant-detainees-must-have-first-amendment-rights/ Fri, 22 Sep 2017 15:05:45 +0000 http://jcred.org/?p=1194 IPineda Cruz v. Thompson, the women of Karnes County Civil Detention Center in Texas protested the awful treatment they experienced during their stay. Approximately eighty mothers circulated a petition and announced a hunger strike during Holy Week, consuming only liquids. As a result, Immigration and Customs Enforcement (ICE) and detention center employees were angered, and the treatment of the women got worse, leading to a class action law suit filed on behalf of the women in the detention center alleging violations of First Amendment free speech rights. In its motion to dismiss the action, the government argued the immigrant women did not have First Amendment rights. Although the Plaintiffs voluntarily dismissed their claim, putting an end to this specific case, this does not put an end to the abuse and terrible conditions experienced by many immigrants across the country. 
Across the country, there are approximately 257 immigration detention facilities housing approximately 32,00 people. Although ICE details standards that all detention centers must comply with, in practice, the detainees are suffering. They experience arbitrary solitary confinement, windowless rooms, inadequate recreational time, and poor nutrition during meals. Further, detainees are given inadequate or no health care, not only for chronic conditions but also for contagious infections and diseases that cause others to become ill. Additionally, there are many allegations of abuse, including sexual abuse, and a lack of proper methods to protect detainees and report these incidents. This persists even though the Department of Homeland Security (DHS) announced plans to implement reporting measures as early as 2012. And tragically, according to ICE, between October 2003 and October 2013, there have been 141 in-custody deaths within these detention centers, many tied to medical neglect or mistreatment. This is unacceptable; immigrants need a way to make their voices heard and protect themselves.

If prisoners retain certain fundamental rights while incarcerated, so should detained immigrants. In 1987, the Supreme Court decided Turner v. Safley and declared that “[p]rison walls do not form a barrier separating inmates from the protections of the Constitution.” Prisoners have the right to the protections guaranteed by the First Amendment. The immigration system is civil, not criminal, and detainees are given fewer rights and are treated horribly, as if they were criminals. Why is it that criminals have the ability to speak freely but detainees in a civil system are told they are not allowed to protest? For example, in Pineda Cruz v. Thompson, guards and ICE went so far as to punish those who protested their treatment with solitary confinement, telling them they were “mentally unfit to care for their children” and “they should agree to be deported if they want to leave so badly.” Because detainees are deterred from protesting, their treatment will not improve; they will only continue to suffer in these detention centers without anyone to protect them. 

Immigrants need a way to protect themselves. They need to be able to speak freely about their concerns and treatment while in detention centers. Because noncitizens are already entitled to other fundamental rights, they ought to be entitled to First Amendment rights protected as well. Noncitizens are currently entitled to (1) equal protection under the law; (2) due process of law before deprivation of life, liberty or property; (3) basic rights in a criminal prosecution; and (4) freedom from slavery and involuntary servitude. The government and the Supreme Court cannot arbitrarily pick and choose which rights noncitizens are entitled to, especially when the stakes are extremely high. Without First Amendment rights and protections, noncitizens are suffering tremendously in detention centers because their voices are chilled; they are not allowed to speak. They need to voice their concerns without fear of further punishment.

Protesting is an appropriate and essential way for noncitizens to confront the harsh treatment they are experiencing in detention centers, bring awareness to the issue, and seek to change it. With the alarming number of in-custody deaths, physical and sexual abuses, and general mistreatment occurring within the walls of detention centers, detainees are hopeless. After asking a detainee at T. Don Hutto Detention center why she resorted to protesting, her response was, “I cannot take more of this punishment. I am dying of desperation from this injustice, from this cruelty.”

The treatment and inability to freely protest in the Karnes County Civil Detention Center caused the women in Pineda Cruz v. Thompson to file a class action lawsuit. This treatment is occurring across the United States where there are approximately 257 detention centers and nearly 32,000 detainees who need to and should be able to speak freely. There are 32,000 detainees experiencing unreasonably harsh treatment, inadequate medical care, and punishment for even the slightest reason. Some detainees form protests while others do not, fearing the thought of even more punishments than they are already facing. 32,000 detainees are suffering and if they cannot protect themselves, who will fight for them?

Samantha Chasworth is a recent St. John’s University School of Law graduate. During her time at St. John’s, she served as Executive Notes and Comments Editor of the Journal of Civil Rights and Economic Development and participated in both the Child Advocacy Clinic and the Refugee and Immigrant Rights Litigation Clinic.

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FORMERLY INCARCERATED YOUTH: The Unknown Collaterals of The School to Prison Pipeline http://jcred.org/formerly-incarcerated-youth-the-unknown-collaterals-of-the-school-to-prison-pipeline/ Wed, 15 Mar 2017 18:37:34 +0000 http://jcred.org/?p=1180  

By: Me’Dina Cook

True or False?: Every child in the United States, who wishes to attend general public school, is allowed to enroll.

You are on your computer and you decide to click on a video that it seems all your social media friends have continuously shared. You press play and on your screen you see a little girl sitting in her chair with a police officer standing nearby. Suddenly, the police officer yanks the girl’s arm and in a struggle flips her and the chair over. The girl is subsequently dragged by her hair and arrested. The little girl is African-American. This happens during class, in front of all the other students and the teacher.

Videos like the one described above have bought great attention to the phenomenon labeled as the “school-to-prison pipeline”. The “school-to-prison pipeline” is a phrase that describes policies and practices of schools around the nation that drastically increases the chances of minority school children being incarcerated. According to the U.S. Department of Education Office for Civil Rights, there is not one state where white students are being suspended at the same rate as black students. What this means is that every state reports suspending African-American students at a higher rate than their Caucasian counterparts. Activists and scholars alike have been engaging in discussions about how to remedy the fact that 70% of students referred to law enforcement are Black and Latino. However there has been less consideration given to the consequences that this pipeline has on the students who end up in juvenile justice facilities as a result of these overly harsh punishment procedures.

The answer is False. Children who have spent any significant time in juvenile detention regularly face difficulties when trying to return to school to finish their education. There is a pervasive reluctance to readmit formerly incarcerated youth into general education schools. Why do states, including New Jersey, persist in their denial of re-enrollment into general education programs? Common justifications offered by school officials for the reluctance to re-enroll formerly incarcerated youth are that the students are harder to manage and pose a safety risk. Many of the officials believe that re-enrolling formerly incarcerated youth to their schools will negatively affect their truancy statistics, graduation rates, and standardized testing scores. However, without actual proof that this would be the case for every child, schools are heavily relying on a negative attitude that all students who have spent time in a juvenile detention facility are the same.

Negative assumptions, about a formerly incarcerated youth’s abilities, are detrimental because they severely narrow the chances of success of that youth and increase their chances of returning to prison. Formerly incarcerated youth, upon release are in an especially vulnerable position socially, economically, and educationally. Because of the interruption in their education and the barriers to re-enrollment posed by these negative assumptions, about 43% of formerly incarcerated youth do not return to school at all after they are released. Youth who do not complete their education suffer collateral effects to their future earning power however; formerly incarcerated youth who do not finish school also suffer a higher chance of being re-arrested.

In order to comply with the state school compulsion laws, schools that have denied re-enrollment to formerly incarcerated youth often refer them to alternative educational programs or home instruction. Alternative education is defined differently in every state but in New Jersey it is defined as educational activities or programs that fall outside of the traditional kindergarten to 12th grade curriculum. In other words, the programs have the discretion to use any methods or principles best suited to teach the children in their programs as long as the students are capable of meeting the states standards. There has been a lot of discourse on the value of the education received in alternative programs generally but the effectiveness of the programs really depends on the state and district in which the alternative program is located. In New Jersey, putting a child in an alternative educational program usually means the child will be put in an alternative school, which is literally another school in its own location. Often these schools have a stated purpose to serve students in its district who are having difficulties with discipline, academics, or attendance. Essentially, all the students’ deemed “problem children” are sent to one building to learn, usually formerly incarcerated youth and suspended students.

In New Jersey, the law does not require that either the student or the parent agree with the decision to place the child in an alternative educational program. Additionally, there is no mechanism in place for the parent or child to be heard on their concerns regarding the placement. This leaves the formerly incarcerated youth, and his/her parent, without a way to challenge the placement, rendering them voiceless. In fact, the only existing recourse is to drop out of school entirely. The only other students who are subjected to being put into alternative education involuntarily are students who are being suspended for 10 days or more. These students, however are entitled to a formal hearing where they can argue against the things they are being charged with by the fourteenth amendment and New Jersey case law. I would argue that that denial of re-enrollment in general education to formerly incarcerated youth constitutes a de-facto suspension, which would require the schools to afford them the same due process protections – a formal hearing.

We cannot allow the pipeline to continue. What I propose with a hearing for formerly incarcerated youth is a remedy for the problem, not a solution. The minority children of our country are being criminalized early on and disproportionately for behaviors that used to be addressed in school. A hearing only gives those children already in the juvenile justice system a way to return to general education, it does nothing to slow or stop the amount of children who come into contact with the system in the first place. The best way to curb the influx of students who have this problem is to seriously begin working on and thinking of solutions to the “school-to-prison-pipeline”.

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Section 1557 of the Affordable Care Act: How Confusion in Interpretation Can Lead to Unfair Outcomes for Litigants http://jcred.org/section-1557-of-the-affordable-care-act-how-confusion-in-interpretation-can-lead-to-unfair-outcomes-for-litigants/ http://jcred.org/section-1557-of-the-affordable-care-act-how-confusion-in-interpretation-can-lead-to-unfair-outcomes-for-litigants/#comments Sun, 01 Jan 2017 17:11:20 +0000 http://jcred.org/?p=1123 by Shari Ferguson

“[T]he key [point] is the fact that [the Affordable Care Act] is going to eliminate discrimination based on gender and preexisting conditions.” This statement, made by Senator Hagan during a Congressional hearing, represents one of the many goals Congress seeks to achieve in its attempt to reform the health care system of the United States. In fact, each provision of the Affordable Care Act (“ACA”) seeks to either facilitate ease of access to health care for all Americans or to eliminate discriminatory influences, which studies have shown affect access to quality health care in minority populations. However, as a result of two court decisions interpreting Section 1557 of the ACA, the nondiscrimination provision, depending on which interpretation eventually prevails, the new health specific civil rights protections created under Section 1557 of the ACA may be limited.

Section 1557 of the Affordable Care Act, the nondiscrimination provision, provides the following:

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Section 1557 of the ACA is unique because it creates a health-specific right by creating a new civil right, in a new context, while not altering existing laws. Specifically, it extends prior protections offered under other civil rights statutes, such as Title VI, by prohibiting discrimination in federally funded health programs any part of which is receiving federal financial assistance, federally administered health programs and new ACA authorized exchanges.

Like many of the surrounding provisions of the ACA, Section 1557 is not inherently clear. The complexity of Section 1557 is a by-product of its reference to and incorporation of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and section 504 of the Rehabilitation Act of 1973. Each of the referenced statutes incorporated within Section 1557 are modelled after Title VI, and all are similarly phrased. When statutes are similarly phrased, courts have interpreted the like terms to have the same legal meaning. In other words, if the terms in a statute have received prior judicial construction, then those terms should be interpreted the same way. Therefore, Section 1557 should have the same meaning as the statutes it references. However, each of the statutes utilize different standards for determining liability, causation and a plaintiff’s burden of proof. As a result, the problems with interpreting Section 1557 may impact the non-discrimination goals of ACA as a whole.

Section 1557 has the potential to impact the health care industry, however, not many claims filed under Section 1557 have reached courts. Currently, two courts have interpreted Section 1557 of the ACA, both concluding that Section 1557 grants an individual a private right of action for health care related discrimination violations. Therefore, private litigants are afforded the right to relief for injuries suffered from a violation of Section 1557. However, because the statute incorporates four different civil rights statutes, the courts disagreed about the applicable standards and burdens of proof required to establish a Section 1557 claim.

In Rumble v. Fairview Health Services, No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, in the District of Minnesota, the court held that Congress’s incorporation of the four statutes was solely to identify the grounds on which discrimination is prohibited, “i.e., race, sex, age, and disability.” As a result, the court inferred that Congress intended the same standard and burden of proof to apply to a Section 1557 claim, regardless of a plaintiff’s protected class. The court reasoned that to hold otherwise would lead to “patently absurd consequences.” Specifically, multiple standards present an element of unfairness to those bringing an intersectional discrimination claim because they would be burdened with each statutes causation requirements.

In contrast, in Southeastern Pennsylvania Transportation Authority v. Gilead Sciences Inc., 2015 WL 1963588 (ED. Pa. May 4, 2015) (“SEPTA”), the court concluded Congress’s inclusion of the four civil rights statutes was meant to import the various standards and burdens of proof available under each statute. Therefore, the standards and burdens of proof for a Section 1557 claim varies depending on an individual’s protected class.

While these cases come to the same conclusion that Congress intended to create a private right of action by incorporating the four referenced statutes, their disagreement about the standards to apply demonstrates the need for something more than federal regulations interpreting Section 1557 to resolve this discrepancy. Currently, the proposed regulations have now been finalized, however, even the finalized regulations, fail to clarify the standard or burden of proof that is applicable to a Section 1557 claim. Looking at the different enforcement mechanisms of each referenced statute can undoubtedly guide interpretation; however, it is important to look at the policies which the ACA was meant to implement. SEPTA’s interpretation of Section 1557 can ultimately undermine or complicate enforcement of the antidiscrimination commitments of the ACA. There is not much legislative history on Section 1557; however, we cannot disregard the purpose of the ACA and what its ultimate effect will be, a complete overhaul of the current healthcare system.

     SEPTA’s interpretation of Section 1557 should not be the controlling interpretation of the standards and burdens of proof that apply to a Section 1557 claim. Courts cannot simply look at Section 1557 of the ACA in the same light as they did with other civil rights statutes. To the contrary, the current legal jurisprudence of the statutes incorporated in Section 1557 should also not be ignored, there must be a balance. The legislative history of the ACA is unique, and courts have looked at a statute’s unique legislative history as an opportunity to interpret it differently than others, even if the statutes share similar terms. Additionally, the languished compliance of other civil right statutes mainly due to weak enforcement mechanisms, specifically Title VI, with regard to health care related discrimination claims should be considered. Doing such recognizes Congress’s intent to create broad protections against discrimination and thus requires a uniform reading of the statute to apply to all litigants equally, regardless of their protected class.

Incorporating all the different standards from every other statute into a health-care statute is virtually impossible and unworkable. Those standards and burdens applicable to the statutes incorporated in Section 1557, were not aimed at a health specific purpose. Such incorporation fails to promote the goals of Section 1557 and the ACA as a whole. Section 1557 has the potential to change the future of health care related discrimination claims; however, it might be years before this change is realized if SEPTA’s limiting holding prevails.

 

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