Necesitamos Nueve: The Adverse Effects on the Immigration Community

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

The appointment of Merrick Garland to the United States Supreme Court was obstructed over the last 310 days of President Obama’s presidency.[1] Despite the nomination, the Senate has refused to move forward with the proceedings on Judge Garland. This has left a crushing vacancy in the seat of the late Justice Antonin Scalia. While the Senate has put a hold on fulfilling its duties, the remaining eight Justices of the Supreme Court have continued its pursuit of “equal justice under law.”[2] Unfortunately, with only eight Justices, many important cases are being decided by a Supreme Court that is unable to provide a declarative ruling. One such case was decided on June 23, 2016. In a 4-4 deadlock, the Supreme Court was forced to issue the following one sentence opinion: “[t]he judgement is affirmed by an equally divided Court.”[3] Those nine words have significantly affected millions of people in the United States. That fact must be addressed.

Deferred Action: Now and the Promise of Tomorrow

Deferred Actions for Childhood Arrivals, also known as “DACA”, was a program first announced on June 15, 2012.[4] DACA utilizes prosecutorial discretion to defer removal actions against a category of individuals. Upon meeting several requirements including a background check, an individual may be granted work authorization and deferred action for two years, subject to renewal.[5] The Department of Homeland Security only has enough funds to deport less than 400,000 undocumented immigrants each year.[6] The DACA program was announced as part of the initiative to prioritize deporting individuals who pose a risk to public safety first.[7] Nearly half a million undocumented immigrants applied for DACA in 2013 alone.[8] With the evident success of the program, the administration looked for ways to expand the deferred action to immigrants excluded from DACA 2012. Continue reading

Off-campus Freedom of Speech and Tinker: Political Protest to Bullying

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review

Arguably, no case is more seminal to the free speech jurisprudence in schools than Tinker v. Des Moines Independent Community School District.[1] Indeed, Tinker is integral to the three cases involved in the current circuit split concerning the application of Tinker, and its progeny, to the ability of schools to regulate off-campus speech and the appropriate standard under which to analyze off-campus speech. On one side, the Eighth Circuit held that the proper test to analyze the ability of schools to regulate or discipline off-campus speech is whether it was “reasonably foreseeable” that the speech would reach the school and cause a “substantial disruption.”[2] On the other side, the Fourth Circuit held that the proper test was the “nexus” test that holds that certain degree of intertwinement between the school and the speech will justify regulation by the school.[3] However, in C.R. v. Eugene School District, the Ninth Circuit[4] declined to decide which test is the proper test, stating that the facts of the case at hand pass both tests permitting the court to continue with the Tinker analysis of “material disruption” or interference with the “rights of others.”[5]

Although the Ninth Circuit correctly decided the case, only the Fourth Circuit rightfully highlighted the dilemma of juxtaposing political dissent to vicious bullying. Regrettably, Tinker is the proper standard under which to analyze a student’s freedom of speech. However, out of respect for the conceptual sanctity of the right to speak freely, our courts need to sever the issue of bullying from the discussion of constitutional rights.

Tinker v. Des Moines Independent Community School District

John Tinker, Mary Beth Tinker, and Christopher Eckhardt planned to wear black armbands to school in protest of the Vietnam War.[6] Their respective schools learned of their protest and instituted a ban against armbands in school. Undeterred by the new policy, the three students wore their armbands and were suspended.[7] The students filed suit in District Court alleging violations of their First Amendment rights. The District Court held for the School District, and an equally divided Eighth Circuit reaffirmed the lower court’s ruling.[8] The United States Supreme Court granted certiorari and held for the students stating that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[9] The Court held that a student may be constitutionally protected to express themselves as long as the student does not “materially [or] substantially interfer[e]” with the “operation of the school and without colliding with the rights of others.”[10] Since Tinker, federal courts have grappled with other applications, including non-political speech and off-campus speech, as well as the limits of Tinker’s protections.

The Eighth Circuit’s “Reasonably Foreseeable” Test

Twin brothers, Steven and Sean Wilson, were suspended for 180 days for the “disruption” caused by a website they created.[11] The website, a blog entitled NorthPress, was created to “discuss, satirize, and ‘vent’ about events” at the school.[12] However, in December 2011, the Wilsons posted blog entries that included offensive and racist content, as well as sexually explicit commentary about a female classmate.[13] After the blog came to the attention of the entire school, the Wilsons were suspended for ten days including a referral to the School District.[14] A series of appeals and hearings took place, after which the District suspended the brothers from their school for 180 days with permission to attend another school “for the duration of their suspensions.”[15] The Wilsons brought suit in District Court alleging violations of their First Amendment rights and seeking an injunctive relief to “lift” their suspensions.[16]

According to the Wilsons, attending an alternate school during their suspensions would damage their future academic prospects.[17] In opposition, the school argued that the blog was being accessed from school computers and was causing “substantial disruption” with some educators calling a particular day the “most disrupted day of their teaching careers.”[18] The District Court found for the Wilsons, citing the irreparable harm to their collegiate careers.[19] The School District appealed.[20]

However, on appeal the Eighth Circuit found for the School District, vacated the order, and reversed the injunctive relief.[21] The Court held that Tinker was the relevant precedent upon which to base their decision because the blog was “targeted” at the school and caused a “material” disruption.[22] Furthermore, the Court held that Tinker applied to off-campus, online speech when it is “reasonably foreseeable” that the speech will “reach” the school community and “cause a substantial disruption.”[23] Given that Tinker applied, the Court held that the Wilsons were not likely to succeed on the merits because the blog was not likely to pass Tinker. Therefore, the speech was not protected under the First Amendment.[24]  Lastly, as the potential harm to the Wilsons’ collegiate career was “speculative”, granting a preliminary injunction was improper given that the Wilsons were highly unlikely to succeed on the merits.[25]

The Fourth Circuit’s “Nexus” Test

Similar to the Wilsons, Kara Kowalski was suspended from school for online speech.[26] The high school senior created a MySpace page to “make students actively aware of STD’s.” with the heading “S.A.S.H.” that she stated was an acronym for “Students Against Sluts Herpes.”[27] However, a fellow classmate stated the acronym stood for “Students Against Shay’s Herpes.”[28] The target of the MySpace page was a student named Shay N, as evidenced by the online interactions between students and Kowalski.[29]

Eventually, the page came to the attention of Shay and her father, who brought the MySpace page to the school’s attention, and filed a harassment complaint.[30] The school’s principal directed the complaint to the school board, which prompted an investigation that resulted in the school determining that the MySpace page violated the harassment policy because it was a “hate website.”[31] As a result, Kowalski was originally suspended for ten days with a ninety day suspension from school social events, but the ten days was reduced to five days while the ninety day “social suspension” remained intact.[32] In response to her punishment, Kowalski brought suit in District Court seeking injunctive relief and alleging, among other claims, that her First Amendment right to free speech was violated.[33] The District Court granted summary judgment for the defendants and Kowalski appealed.[34]

On appeal, the Fourth Circuit also applied Tinker and found that Kowalski’s MySpace page was not protected by the First Amendment because it “materially disrupted” the classroom.[35] However, unlike the Wilsons, Kowalski does not dispute that her webpage amounted to harassment; the crux of her argument centered on the fact that the speech took place off school premises, and therefore outside the school’s disciplinary jurisdiction.[36] The Court declined to entertain her off-premises argument, stating instead that “the nexus of Kowalski’s speech to Musselman High School’s pedagogical interests was sufficiently strong to justify the action taken by the school.”[37] Accordingly, the court affirmed the District Court’s holding stating that Kowalski’s speech was not entitled to First Amendment protection.[38]

The Ninth Circuit’s Failure to Take a Stance

Plaintiff-Appellant, C.R., was a seventh-grade boy at Monroe Middle School.[39] A group of boys, including C.R., were accused of sexually harassing two Monroe Middle School sixth-grade students, A.I. and J.R.[40] The group of boys followed A.I. and J.R. home along a path that neighbors the school.[41] Although the route runs adjacent to the school, the harassment technically took place off school property.[42] In a “series of encounters,” the boys harassed A.I. and J.R., including questioning them about pornography and inappropriately referencing oral sex.[43] Accordingly, the school “imposed a two-day, out-of-school suspension” based upon their finding that C.R. had violated the school’s sexual harassment policy.[44] C.R.’s parents sued the School District asserting a violation of C.R.’s First Amendment rights, stating that the speech took place off-campus, outside the school’s disciplinary jurisdiction.[45] The District Court held for the School District and C.R. appealed.[46]

The Ninth Circuit affirmed the lower court’s holding.[47] The court began with the standard of review for First Amendment protections for free speech in schools, as well as the proper standard for off-campus speech.[48] Citing to the Fourth and Eighth Circuit’s decisions in Kowalski and Lee’s Summit, the Court acknowledged the “nexus” and reasonably “foreseeable tests” as applicable standards for off-campus speech.[49] The court stated that “once the court has determined that…off-campus speech [is] susceptible to regulation by the school, we apply Tinker.”[50] Accordingly, the court applied both the “nexus” and “reasonably foreseeable” tests, and concluded that the facts of the instant case passed both tests, making C.R.’s speech subject to school regulation.[51] The school’s causal relationship to the path home satisfied the nexus test because it was the “school itself that brought the children together on the path.”[52] Furthermore, the nature of inter-school harassment made C.R.’s speech “reasonably foreseeable” to be discovered by the school because students either exhibit signs of harassment or report harassment.[53]

After the court established that the speech was subject to school regulation, a simple Tinker analysis followed. The court decided the case on the second prong of Tinker; a school can regulate speech if it “collides with the rights of other students to be secure and let alone.”[54] Sexual harassment is implicated as such a right and, therefore, the speech was not protected by the First Amendment.[55]

A Need for a New Threshold: the Bully Test

The Ninth Circuit stated that a Tinker analysis follows a finding that the off-campus speech is subject to school regulation but failed to decide which test better permits such a finding. Upon close inspection, the “nexus” test and the “reasonably foreseeable” test are similar enough that one set of facts likely could not pass one without equally passing the other. This conclusion is supported by the decision in C.R. as the Ninth Circuit declined to take a stance because both tests would be satisfied. Both tests permit the school to assume control of a situation within their grasps but not necessarily certainly within their jurisdiction. A student spends a significant percentage of their time in school, where any amount of bullying, whether online or off-campus, is likely to prompt the “nexus” test or the “reasonably foreseeable” test.

Yet, once a Tinker analysis is triggered upon a finding of a school’s authority to discipline, an uncomfortable comparison between the freedom to bully and the freedom to politically protest follows. The right to free speech, especially political speech, is one of the most powerful and symbolic rights bestowed by the Constitution. Maintaining Tinker as the proper standard for regulating speech in schools is easy; in combination with the “nexus” and “reasonably foreseeable” tests, it is unlikely that a Tinker analysis will ever find bullying constitutionally protected. Empowering schools to regulate bullying is a wonderful, and much needed, ability. However, using Tinker to accomplish this goal diminishes the instrumental role the young students in Tinker played in shaping the First Amendment protections for students, enabling students to be conscious, active citizens.

Conclusion

Tinker v. Des Moines Independent Community School District bestowed upon students the ability to, conditionally, exercise their constitutional right to free speech. The students in Tinker fought for their right to politically speak out against the Vietnam War. In the decades since Tinker, courts have struggled with defining Tinker’s applicability. As avenues for bullying have exponentially multiplied, courts have further struggled to determine whether bullying, as a form of speech, is protected by the First Amendment, especially if the bullying took place off-campus. Although circuits have formed multiple tests with which to determine whether a school may discipline a student for off-campus speech, most courts have not addressed the dilemma of comparing political speech to bullying. This dilemma highlights the need for a new test that limits bullying as a form of speech subject to a Tinker analysis.

[1] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969).

[2] S. J. W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012).

[3] Kowalski v. Berkeley Cty. Sch., 652 F.3d 565 (4th Cir. 2011).

[4] C.R. v. Eugene Sch. Dist. 4J, No. 13-35856, 2016 U.S. App. LEXIS 16202 (9th Cir. Sep. 1, 2016).

[5] Tinker, 393 U.S. at 503.

[6] Id. at 504.

[7] Id.

[8] Id. at 505.

[9] Id. at 507.

[10] Id. at 513.

[11] Lee’s Summit, 696 F.3d at 773.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. The brothers’ complaints included less challenging curriculum, a lack of ACT preparation and “honors courses,” and a less prestigious musical program that would hinder their musical scholarship options.

[18] Id. at 775.

[19] Id.

[20] Id.

[21] Id. at 777.

[22] Id. at 776.

[23] Id. at 777.

[24] Id. at 778

[25] Id. at 779.

[26] Kowalski, 652 at 567.

[27] Id.

[28] Id.

[29] Id. at 568. Derogatory pictures and comments flooded the page about Shay.

[30] Id.

[31] Id.

[32] Id. at 569.

[33] Id. at 570.

[34] Id.

[35] Id. at 573.

[36] Id.

[37] Id.

[38] Id. at 575.

[39] Eugene, 4J, No. 13-35856, 2016 U.S. App. LEXIS at *4.

[40] Id.

[41] Id.

[42] Id.

[43] Id. at *6.

[44] Id.

[45] Id. at *4.

[46] Id.

[47] Id.

[48] Id. at *11.

[49] Id. at *16.

[50] Id. at *15.

[51] Id. at *16.

[52] Id. at *17. The path is considered the “backfield” of the school, the school knowingly releases the various grades at the same time that permits the interaction, and the lack of alternate routes home justify stating that the school itself brought the children together on that path.

[53] Id. at 18.

[54] Id. at *20.

[55] Id. at *22.

A Real Immigration Debate

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

This past election cycle saturated Americans with immigration rhetoric from both political parties. Amongst this contentious political debate, the American judicial system is engulfed in legal debates about how to interpret federal immigration law. One section of the Immigration and Nationality Act (INA) allows the United States government to remove an alien convicted of a crime of domestic violence, stalking, or child abuse.[1] However, the Ninth and Fourth Circuits have encountered cases where an alien is convicted of a violent crime other than domestic violence, but many of the facts suggest a crime of domestic violence. It is not clear from the facts of these cases whether the prosecutors in the state proceedings utilized prosecutorial discretion to not charge a defendant under a criminal domestic violence statute or if the state did not possess a criminal domestic violence statute at all. These scenarios raise the question of whether the alien can be deported under this provision of the INA. The Ninth Circuit argued that a categorical approach, “looking only to the statutory definition [] of the prior offense”[2] or a modified categorical approach, looking “beyond the language of the statue to a narrow, specified set of documents that are part of the record of conviction,”[3] should be applied. Utilizing these two approaches, a court cannot look at the facts supporting the conviction when making the determination of whether the offense was an act of domestic violence. [4] In contrast, the Fourth Circuit applied a circumstantial approach. Under the circumstantial approach, “while the congruence of elements of the underlying offense and the offense described in the federal statute, must be assessed using the categorical approach, courts may consider other evidence to see if the necessary attendant circumstances exist.”[5] Ultimately, the Fourth Circuit’s approach is the best approach because it is more compatible with Supreme Court precedent even though the Fourth Circuit’s approach presents separation of powers and federalism issues. Continue reading

Purpose of the Church: 501(c)(3)s and Politics

Author: Adam Pitchel, Associate Member, University of Cincinnati Law Review

Non-profit organizations are not required to pay federal income taxes so that they can better fulfill their purpose. According to §501(c)(3) of the Internal Revenue Code, any organization that “operates exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes or to foster amateur sports competition” has an acceptable purpose.[1] However, organizations having an acceptable purpose and meeting the other requirements of §501 may only maintain their tax-exempt status if they refrain from influencing legislation and/or intervening in a political campaign.[2] This restriction was propose d by Senator Lyndon B. Johnson in 1954, to prevent churches and other organizations holding significant amounts of moral authority from interfering with elections.[3] H.R. 6195, also known as the Free Speech Fairness Act, proposes to create an exception to this prohibition.[4] The proposal would allow 501(c)(3) organizations to make political statements and endorse candidates if the statement or endorsement “is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose and results in the organization incurring not more than de minimis expenses.”[5] This act is impermissibly vague, creates an exception that threatens to swallow the rule, and is redundant with the existence of 501(c)(4) organizations. Continue reading

Sanctuary Cities and the Fight against the New Administration

 

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

In the days after the 2016 election, there was a wide divergence among Americans. A clear divide ensued between those who were satisfied with the elections and those who were in fear of what the next four years meant for their safety, their protection, and the future of their rights. In the following days, thousands of Americans expressed their concern over the promises made from the Trump/Pence campaign.[1] The Latino community voiced concerns over the promises made by President Trump to immediately deport millions of immigrants, build a wall, and his intention to dispose of President Obama’s executive orders on deferred action as soon as he takes the oath of office.[2] In response to this fear, several cities across the nation have declared or reaffirmed their status as “sanctuary cities” and as safe havens to undocumented immigrants in the coming months.[3] Continue reading

CHINA SEEKS MARKET ECONOMY STATUS WHEN SECTION 15 OF ITS PROTOCOL OF ACCESSION INTO THE WORLD TRADE ORGANIZATION EXPIRES ON DECEMBER 11, 2016

Author: Ryan Kenny, Associate Member, University of Cincinnati Law Review

On December 11, 2001, China formally joined the World Trade Organization (WTO).[1] The WTO develops policies aimed at promoting global integration of member-states’ economies.[2] When China was inducted into the WTO, §15 of China’s Protocol of Accession (POA §15) allowed WTO members to designate China a non-market economy (NME). NME status allows WTO members to assess the true cost of production in China by using any fair method, rather than just the nominal price of production in the Chinese market.[3] These methods are used to determine countervailing duties (CVD) and anti-dumping laws (AD) for imports from China. With the POA §15’s expiration on December 11, 2016, the debate is whether its expiration automatically grants China market-economy status (MES), or whether national law makes such a determination. POA §15’s expiration does not grant China automatic MES status, and the United States is unlikely to grant China MES at the end of

I. Legal Framework Surrounding China’s MES.

China argues that the POA it signed in 2001 will grant it immediate MES after its expiration. Mei Xinyu, a researcher with China’s Ministry of Commerce, said, “[POA §15] is very clear and it’s unconditional” to this effect.[4]  However, there is no language in the POA that suggests that MES is automatic upon the expiration of the clause. Rather, each WTO member nation will determine individually whether or not China has liberalized its economy enough to earn MES. Continue reading

Institutional Activist Investors: The “House Flip” of Corporate Governance

Meg Franklin, Associate Member, University of Cincinnati Law Review

Similar to a handyman homebuyer who purchases a house in order to make a profit on improvements made to the house, institutional activist funds “flip” a corporation in order to provide a profit to shareholders.  These institutional activist investors use ownership of shares to affect change in management.[1]  Once the corporation has increased in value, activist funds pressure a board into selling so that the owners can realize the profit.  Opponents of institutional activist investors believe this short term strategy sacrifices long term corporate stability.[2]  Yet, proponents believe institutions carry more knowledge than individual investors which enables them to steer corporations away from profit-reducing decisions.[3] Engaged Capital, an activist fund currently targeting SunOpta, provides an excellent example of strategic institutional activist investment and exemplifies the overall investment trend. .[4]  While time will tell whether Engaged Capital will impact positive change in SunOpta, Engaged Capital holds itself out to be a fair investor looking to improve the business from within. Continue reading

Observe, Record, and Report: Fighting Police Misconduct in the Technological Age

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

The advancement of technology serves many beneficial purposes, but it also raises constitutional issues not before considered. Recording public officials, specifically police officers, is increasingly becoming a tool for individuals who have been pulled over, engage in civil disobedience, or witness an interaction between a civilian and an officer to draw attention to police misconduct and excessive force. Facebook now also allows a Live[1] feature. Moreover, as the focus on race and policing in America continues to be discussed, the question of whether recording public officials is a right guaranteed by the First Amendment requires an answer now more than ever. The Supreme Court has never ruled on this question, but several circuit courts have considered it. Most of the circuit courts have ruled that there is a First Amendment right to record public officials, specifically on matters of public interest.[2] While other courts have declined to hold a First Amendment right was “clearly established” at that time in their circuits, no circuit court has ever rejected the complete existence of the right.[3] However, in a recent decision, a district court in the Third Circuit has placed a significant limitation on that right.[4] There is an urgent need for all the circuit courts to recognize that individuals have a First Amendment right to record public officials. Otherwise, the Supreme Court will be obliged to step in and officially recognize the right to record public officials as a protection under the First Amendment. Continue reading

The Defendant’s Right to a Jury Determination on Criminal Forfeiture

Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review

In the minds of most, lawyers and lay people alike, the culmination of a criminal trial is when the jury reaches its verdict. What follows a jury’s announcement of ‘guilty’ or ‘not guilty’ is viewed as procedural formalities that merely finalize the verdict. However, in cases where a jury has returned a guilty verdict, there is often one more procedural step that could play a large role in a defendant’s life. In criminal cases that go to trial, the Government may seek to deprive a defendant of the “fruits” of his criminal labor by seeking criminal forfeiture of property created or gained through the criminal activity.[1] If the defendant is found guilty by the jury, and the Government has complied with the relevant statutes and procedures to state its intent to seek criminal forfeiture, there will be a determination on whether the court should order the forfeiture.[2]

Although there is no constitutional right to a jury determination on the issue of forfeitability,[3] the Federal Rules of Criminal Procedure provides parties such a right through Rule 32.2(b)(5)(A), stating that, “the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.”[4] Once it has been established that the jury will be retained, the jury will then determine whether the Government has established the required nexus between the offense the defendant committed and the property the Government seeks to seize.[5]

Although the rule places an affirmative duty on courts, most courts hold that the burden rests on the defendant to affirmatively request a jury determination, or waive the right altogether. Some courts have suggested that they find that the rule places an affirmative duty on the court–however, there is unfortunately no precedent that firmly states so. Due to this, the majority of courts wrongfully ignore the duty the rule places on them. Continue reading

Keeling v. Hars: A New Take on Fair Use

Meg Franklin, Associate Member, University of Cincinnati Law Review

The Balance Between Monopoly and Public Domain

Fair use is often seen as a statutory check to the monopoly power copyright holders receive from the Copyright Office.[1]  By excluding certain activities from copyright infringement, the fair use doctrine balances the tension between the copyright holder’s rights and the public’s interest in a rich public domain.  In the midst of this tension, fair use “makes sure that the rights of the public expand at the same time, so add-on creativity and innovation can continue to thrive.”[2]  Academics and judges oft ponder the right balance between copyrights and fair use.[3]  Yet, instead of mere one-dimensional territorial gain—with fair use either expanding or contracting—there might be a different, multi-dimensional approach to the doctrine.

The doctrine of fair use is traditionally applied as an affirmative defense. Yet, the Ninth Circuit took a nontraditional approach to fair use in Lenz v. Universal Music Corp.[4] where Similarly, the Second Circuit in Keeling v. Hars[5] was confronted with fair use in an unusual context.  In both cases, the courts balanced the purposes of copyright law with the fair use doctrine.  Yet, each case also showcased new contexts that may allow copyrights to adapt to technological or cultural changes in the arts and media. Continue reading