You’d Better Say You’re Sorry: Acceptance of Responsibility By: Aubrey Wakeley

You’d Better Say You’re Sorry: Acceptance of Responsibility

Adjustments under Federal Sentencing Guidelines 

By: Aubrey Wakeley

Current federal sentencing practices operate with the use of an offense numbering system that results in a recommended sentencing range within which the sentencing judge is recommended to sentence the defendant, absent unusual circumstances.[1] As of 2005, these guidelines are advisory only.[2] While some issues regarding the sentencing guidelines have been squarely addressed and resolved by the Supreme Court[3], courts have barely touched on the issue of the constitutionality of the downward departure for acceptance of responsibility.

One of two courts to address the legality of the acceptance of responsibility reduction, the federal court for the District of Oregon ruled based on the third level of reduction delegating the authority to reduce the offender’s sentence to the executive branch in a pre-Booker decision.[4] The court held that the discretionary level reduction by the additional third level violated the separation of powers, regardless of whether the defendant has actually received the discretionary reduction: “It also is immaterial whether this particular [d]efendant ultimately receives the third point for acceptance of responsibility. The mere fact that the prosecutor can, if he or she chooses, deny a defendant the third point alters the relative bargaining strength of the parties.”[5]

Since then, however, few decisions address defendants’ arguments against the acceptance of responsibility level reductions on these, or any other, grounds because, as the Third Circuit noted, Booker’s constitutional remedy for a meddling executive branch was to eliminate the mandatory nature of the guidelines.[6] This, the Third Circuit reasoned, was sufficient to remedy any Constitutional worries about a defendant’s sentencing being tainted by improper executive branch influence.[7] The Constitutional issues regarding the separation of powers in sentencing standards therefore appear to be addressed and remedied.

The prudential concerns surrounding this issue are less easily resolved and have been left largely unaddressed. After Booker, the federal courts are still left with a system that gives defendants recommended sentences that will vary greatly in accordance with the sole variable of the defendant exercising his constitutionally guaranteed right to trial.[8] A defendant with no criminal history at all can receive a recommended sentence varying from twenty-seven months to fifteen months, a reduction of 44% in his time incarcerated, based solely on his agreement not to exercise his right to trial after being charged with a level sixteen offense.[9] Upon government motion for the third level reduction, the recommended sentence can drop to twelve months, a 56% reduction in recommended prison time.[10] At the other end of the spectrum, a career offender[11] who pleads guilty to an offense normally sentenced as a level sixteen offense can have the level of that offense, and consequently his sentence recommendation, reduced automatically by 35% with the standard two-level reduction.[12]  This reduction can add up to a difference of over eleven years at the higher end of criminal history category VI.[13] Upon motion of the government for the third level of reduction, which can be a negotiating point for the defendant’s attorney, the recommendation can be reduced even further, to 42% of the initial level sixteen offense.[14]

Because of the comparable lack of sophistication most criminal defendants possess, a person accused of a crime might consider solely the term of imprisonment when determining whether to plead guilty, regardless of any advisements by his defense attorney about collateral consequences. A defendant may even plead guilty when he is not to avoid risking the longer prison sentence or out of a belief that the system disfavors defendants who assert their innocence in court.[15] 97% of federal court cases resulting in a verdict were the result of plea bargains in 2013.[16] Even a knowledgeable defendant, faced with a recommended sentence differential up to 55%, could conclude that the system is biased against a defendant who actually uses his right to trial.

Implementing a solution to this problem of the vast gulf in federal sentencing is logistically difficult, even if not constitutionally problematic. Judicial system funding is tight,[17] , and recent funding crises inevitably come to mind when discussing a massive increase on the federal trial load. Lessening sentencing disparities would certainly result in a changed calculus for defendants, making them more likely to proceed to trial. Currently, admission of all essential elements of a crime is strong evidence of acceptance of responsibility and thus quite likely to result in the applicable reduction of recommended sentence.[18] The defendant putting the government to its burden of proof at trial over factual issues is a categorical bar to the acceptance of responsibility reduction.[19] Because of the current court funding limitations and massive increase in trial load that would result from remediating this disparity, which would remove a reasonable ground for defendants’ belief that the judicial system is hostile to their exercise of the right to trial, there exists little reason to believe that this problem can be resolved in the near future.

[1] See Federal Sentencing Guidelines Manual § 5A (2016), available at https://1.next.westlaw.com/Link/Document/Blob/I829ffe408c9411e584b7b06614fb6ddc.pdf?originationContext=document&transitionType=DocumentImage&uniqueId=9fc0c14b-0473-4148-acff-dabd60235b11&contextData=(sc.Category).

[2] United States v. Booker, 543 U.S. 220, 259 (2005) (holding, “[W]e must sever and excise…the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range) (emphasis added).

[3] See United States v. Booker, 543 U.S. 220 (2005).

[4] United States v. Detwiler, 338 F. Supp. 2d 1166, 1181 (D. Or. 2004).

[5] Id.

[6] United States v. Coleman, 451 F.3d 154, 158 (3d Cir. 2006) (holding, “Indeed, the…remedy for the perceived separation of powers violation in Detwiler-conversion of the mandatory Guidelines into a non-binding, advisory system is essentially the remedy the Supreme Court adopted in Booker, albeit for a different constitutional violation…Thus, while Coleman’s argument that the Feeney Amendment unconstitutionally allows the President to control sentencing might have been persuasive while the Guidelines were still mandatory, it is misplaced under the now-advisory system.”) (internal citations omitted).

[7] Id.

[8] See Federal Sentencing Guidelines Manual § 5A (2016), supra note 1.

[9] Id.

[10] Id.

[11] See Federal Sentencing Guidelines Manual § 4B1.1 (2016).

[12] Federal Sentencing Guidelines Manual § 5A (2016), supra note 1.

[13] Federal Defender, How a Person Previously Sentenced as a ‘Career Offender’ Would Likely Receive  aLower Sentence Today, (explaining, “Sentences recommended by the career offender guideline are among the most severe and least likely to promote the statutory purposes of sentencing.”), https://www.fd.org/docs/select-topics/sentencing-resources/clemency-how-a-person-sentenced-as-a-career-offender-would-receive-a-lower-sentence-today4-14.pdf?sfvrsn=6, last accessed on December 1, 2016.

[14] Federal Sentencing Guidelines § 5A (2016), supra note 8.

[15] Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. OF BOOKS (Nov. 20, 2014), http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/ (“The few criminologists who have thus far investigated [innocent people pleading guilty] estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. … let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.”).

[16] Id.

[17] Denise A Cardman, Federal Court Funding (2016), http://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/independence_of_the_judiciary/federal-court-funding.html (last visited Nov 26, 2016).

[18] Federal Sentencing Guidelines Manual § 3E1.1 (2016) (“Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable…will constitute significant evidence of acceptance of responsibility.) (internal citations omitted).

[19] Id.

Cultural Destruction Forgotten Amongst Environmental Controversy By: Matthew Willett

Cultural Destruction Forgotten Amongst Environmental Controversy By: Matthew Willett

The Dakota Access Pipeline is a 1,172 mile project to create a 30-inch diameter pipeline[1] across North Dakota, South Dakota, Iowa, and Illinois[2] and is projected to transport half a million barrels of crude oil per day.[3] The Dakota Access Pipeline faces the same environmental concerns as the Keystone Pipeline.[4] While proponents of pipelines boast that pipeline spills occur less regularly than transporting oil by rail or truck, the effects of pipeline spills are often more catastrophic.[5] The controversy surrounding the Dakota Access Pipeline has gained in attention since summer of 2016 when the Standing Rock Sioux tribe filed a complaint in federal district court in Washington D.C. on July 27.[6] The complaint was against the Army Corps of Engineers, the federal agency that approved the pipeline, and then contractors had an injunction preventing them from working as the court deliberated.[7]

Most of the national attention surrounding the Dakota Access Pipeline focuses on the controversy of the pipeline’s potential environmental consequences across the Midwest, thereby minimizing coverage of the pipeline’s encroachment upon Native American tribes’ sovereignty. On September 9, the Court rejected Standing Rock’s legal claims, but agreed with the tribe that the Army Corps of Engineers had improper process violating the Clean Water Act and National Historic Protection Act when it issued permits to construct the pipeline. The decision on September 9 temporarily ended the injunction preventing construction in this area until the Obama Administration ordered the Army Corps to pause construction until it could revisit the controversial area. [8] Given this extra time, it is necessary for the Army Corps and Dakota Access, a private energy company developing the pipeline, to better consider the cultural impact of this project.

Following the environmental controversy surrounding the Keystone Pipeline a couple years prior, the public’s immediate response was focusing on the Dakota Access Pipeline’s environmental impact rather than the encroachment on Native American tribes’ sovereignty. That is not to say the environmental impacts of the Dakota Access Pipeline are not significant. For instance, one of the Standing Rock Sioux tribe’s concerns came from the possibility of the pipeline leaking and contaminating the Missouri River. [9] The Missouri River is Standing Rock’s only source of water. [10] However, the tribe’s main claim issue is the pipeline being a threat to their tribe’s history and culture.

The Standing Rock Sioux tribe views land around the Missouri River, which is not included as part of the tribe’s reservation, as part of their ancestral lands where their ancestors hunted, fished, and were buried in the past.[11] The tribe does not claim a right over this land, understanding that American courts respect the “Discovery Doctrine,” which essentially recognizes a European Christian’s claim over land if they were the first to document ownership. Courts, however, also recognize that these colonial land claims are a painful part of our nation’s past and grant a right to be consulted. This right to be consulted requires a federal agency undertaking a construction project to consult with local Native nations and tribes about the presence of nearby scared sites.[12] This consultation is not meant to pressure tribes into granting approval with little dialogue between the tribe and federal agency but rather a “government-to-government” type of discussion. [13] The tribe claims that it was not part of the historical surveying process until the very end instead of the custom in government-to-government negotiations, which would have the tribe join as a partner in surveying the land. Despite the disputed area’s distance from reservation land, federal agency must respect the right of consultation. [14]

Federal agencies must make a reasonable search to see if any tribes have an interest in a disputed territory. Tim Mentz, a Standing Rock Sioux member and archeologist, reviewed the pipeline’s survey work and found that Dakota Access relied on a survey of the area from 1985 from than conduct an independent survey. [15] Not only does it appear that the Dakota Access failed to make a reliable survey, they also failed to reasonably search to see if any tribe had an interest in the land. [16]

The potential loss of culturally significant sites shows the necessity in diligently inspecting and researching the land prior to any pipeline construction. As a result of the previously mentioned faulty survey, the Standing Rock Sioux revealed that the pipeline’s plans transverse over major archeological sites. [17] The tribe points to one site, for instance, a stone feature depicting the Big Dipper constellation, which signifies that a respected leader is buried in the vicinity. [18] Mentz claims that Dakota Access or Army Corps surveyors would have had to literally walk over the stone archeological site had they conducted the survey. [19] There is a serious risk of losing these culturally valuable sites; hours after Standing Rock Sioux’s legal team presented evidence of these archeological sites to the court, the Dakota Access company started constructing on the same sites. [20]

It seems odd that protecting culturally important sites and the environment are lumped together when they have different considerations and means of redressability. In the Frequently Asked Questions page on the Dakota Access website, the company has a section entitled “What is Dakota Access Pipeline’s commitment to protecting sensitive areas and the environment, such as wetlands and culturally important sites?” [21] The answer to this question discusses how they conducted surveys to review the environmental impact and their attempts to reduce their ecological footprint but never mentioned how they would protect archeological sites. [22] However, there is a different consideration needed for investigating potential conflicts with cultural sites compared to the environment. The wetlands can be studied by traditional surveys but you cannot know about an area’s significance to a particular group if you are not meeting with that group throughout the process.

Further care should be taken with cultural areas because there is no redressability following the destruction of a culturally priceless site. As devastating as environmental damage can be, that damage can be mitigated or cured. For example, if the Missouri River were to flood, the Standing Rock Sioux still could have water shipped to them. Despite the inconvenience, the contaminated water can be replaced, but a destroyed burial ground centuries old cannot. Once an archeological site is destroyed it is lost forever. Even if the Army Corps or Dakota Access were to reimburse the Standing Rock Sioux for any destroyed site, it is unlikely the tribe would accept the payment. [23] The Sioux have continuously declined payment from the U.S. government in compensation for the improper taking of the Black Hills of South Dakota. [24] The tribe demands to take possession or co-possession of the Black Hills rather than accept the payment, which is now worth over a billion dollars off of earned interest. [25] Given these diverging considerations, it is dangerous to think of the debate of the Dakota Access Pipeline as only an environmental concern without examining the potential loss of priceless cultural artifacts.

 

[1] Devashree Saha, Five Things to Know About the North Dakota Access Pipeline Debate, Brookings (Sep. 6, 2016), https://www.brookings.edu/blog/the-avenue/2016/09/14/five-things-to-know-about-the-north-dakota-access-pipeline-debate/

[2] Jessica McBride, Dakota Access Pipeline Maps & Routes: Where Would It Go? Heavy (Sep. 6, 2016), http://heavy.com/news/2016/09/dakota-access-pipeline-protests-video-photos-dogs-map-dapl-routes-north-oil-mace-standing-rock-sioux-native-american-indian-energy-transfer-kelcy-warren-bakken-lawsuit/.

[3] Saha, supra note 1.

[4] Robinson Meyer, The Legal Case for Blocking the Dakota Access Pipeline, The Atlantic (Sep. 9, 2016), http://www.theatlantic.com/technology/archive/2016/09/dapl-dakota-sitting-rock-sioux/499178/.

[5] Jack Healy, North Dakota Pipeline Battle: Who’s Fighting and Why, N. Y. Times (Aug. 26, 2016), http://www.nytimes.com/2016/11/02/us/north-dakota-oil-pipeline-battle-whos-fighting-and-why.html.

[6] Standing Rock Litigation, Earth Justice Initiative, http://earthjustice.org/features/faq-standing-rock-litigation (last visited Oct. 30, 2016).

[7] Id.

[8] Saha, supra note 1.

[9] Meyer, supra note 4.

[10] Id.

[11] Healy, supra note 5.

[12] Meyer, supra note 4.

[13] Id.

[14] Saha, supra note 1.

[15] Healy, supra note 5.

[16] Saha, supra note 1.

[17] Meyer, supra note 4.

[18] Id.

[19] Id.

[20] Id.

[21] Frequently Asked Questions, What is Dakota Access Pipeline’s commitment to protecting sensitive areas and the environment, such as wetlands and culturally important sites?, Dakota Access (last visited Oct. 30, 2016) http://www.daplpipelinefacts.com/resources/faq.html.

[22] Meyer, supra note 4.

[23] Maria Streshinski, Saying No To $1 Billion, Atlantic (Mar. 2011), http://www.theatlantic.com/magazine/archive/2011/03/saying-no-to-1-billion/308380/.

[24] Id.

[25] Id.

Utah v. Strieff: A Brief Analysis By: Logan Griffith

Utah v. Strieff: A Brief Analysis

By: Logan Griffith 

The Fourth Amendment to the United States Constitution protects “the rights of the people … against unreasonable searches and seizures of property by the government.”[1] Historically, violators of one’s fourth amendment rights were treated by the law as trespassers.[2] As such, fourth amendment rights were enforced by way of either self-help or a suit in tort.[3] This changed with the adoption of the exclusionary rule.[4] The exclusionary rule allows for a court to exclude evidence against a defendant that was obtained during an illegal search.[5] There are several exceptions to the exclusionary rule.[6] The exceptions share one common characteristic in that they all pertain to the “causal relationship between the unconstitutional act and the discovery of evidence.”[7] One key exception to the exclusionary rule is the attenuation doctrine, which allows evidence to be admitted “when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.”[8]

The exclusionary rule and the attenuation doctrine exception, at their heart, are about weighing the costs and benefits to the public of excluding evidence obtained in an unconstitutional search.[9] In order to guide this cost-benefit analysis, the Court, in Brown v. Illinois, set out three factors to be considered.[10] The three factors are 1) the “temporal proximity” between the illegal search and the discovery of evidence, 2) the presence of intervening circumstances, and 3) the “purpose and flagrancy of the official misconduct.”[11]

In 2016, the Court was tasked with deciding whether the discovery of a valid arrest warrant during the course of an illegal stop was an attenuating circumstance that made the exclusion of evidence obtained unwarranted.[12] In Utah v. Strieff, a detective was watching a house that he believed, due to an anonymous tip, to be involved in the selling of narcotics.[13] The defendant exited the house and the detective illegally detained him and demanded his identification.[14] Once the detective relayed the identification information to his dispatcher, he learned that the defendant had an outstanding arrest warrant.[15] Pursuant to the warrant, the detective searched the defendant and found a small amount of methamphetamine and drug paraphernalia.[16] At trial, the defendant moved to suppress the evidence and the trial court denied the motion. [17] The defendant appealed, and the Utah Court of Appeals affirmed.[18] He appealed to the Utah Supreme Court and that court reversed, leading the state to appeal to the United States Supreme Court.[19]

The Court handed down three opinions: one majority opinion and two dissenting opinions; all three opinions employ the Brown factors.[20] With regards to the first factor’s consideration of the “temporal proximity,” all of the opinions agree.[21]  The illegal stop, discovery of an arrest warrant, and subsequent search all occurred within minutes of each other, meaning this factor favors exclusion of the evidence.[22] As far as the existence of intervening circumstances, the opinions differ substantially. Justice Thomas’s majority opinion views the discovery of the arrest warrant, essentially, as the beginning of a new interaction. The initial stop was illegal, but the discovery of the arrest warrant removes the taint of illegality from the evidence that surfaces after the discovery, because the “causal chain” has been broken.[23] The dissenting opinions do not see the discovery of an arrest warrant to be as destructive to the “causal chain.” Justice Kagan’s dissenting opinion analyzes the existence of intervening circumstances in terms of foreseeability.[24] Because the procedure of asking for identification and then running said identification through the state’s database is, in part, designed to discover outstanding arrest warrants, such an event is foreseeable enough for it not to be considered “intervening.”[25] Similarly, the opinions are split in regards to the “purpose and flagrancy” of the unconstitutional stop. The majority opinion calls the detective’s actions “at most negligent,” and paints the actions that led to his illegal detaining of the defendant as “good-faith mistakes.”[26] Based on this, the majority decides that this is not the sort of behavior that would be effectively deterred by the exclusionary rule.[27]  Justice Sotomayor disagrees in her dissenting opinion, but notably claims that, even if the detective’s actions were merely negligent, even negligent officers “can learn from courts that exclude illegally obtained evidence.[28] Justice Kagan’s opinion similarly paints the detective’s actions as sufficiently purposeful to warrant exclusion of the evidence.[29]

The decision in this case seemingly suggests that someone who has an outstanding arrest warrant – for instance, someone with a traffic ticket who has “misse[d] a fine payment or court appearance”[30] – essentially forfeits his fourth amendment rights. The majority considers the discovery of an arrest warrant an unforeseeable, “intervening circumstance” that is “entirely unconnected with the stop.”[31] With the number of outstanding warrants in the United States, this view borders on untenable. The majority pays lip service to the “purpose and flagrancy” consideration, but sets the standard far too high. If the detective in this case can be said to have merely made “good-faith mistakes,” what would it take for an officer’s illegal conduct to rise to the level of “purposeful and flagrant?”  The exclusionary rule is about disincentivizing police officers from violating the constitution.[32] As Justice Kagan points out in her dissent, the majority’s ruling will likely do the opposite.[33] If a police officer illegally detains someone and demands his identification, either the suspect will have a warrant, in which case he can be arrested and searched, or he will not have a warrant and he will be unlikely to sue to enforce his fourth amendment rights.[34] This decision has practical, damaging effects on the rights secured by the fourth amendment. As the late Justice Scalia once wrote: “there is nothing new in the realization that the Constitution sometimes insulates the criminality of the few in order to protect the privacy of us all.”[35] Although the defendant in this case was undoubtedly guilty, this is an instance where his criminality should be insulated to protect the privacy of the public.

 

[1] U.S. Const. amend. IV.

[2] Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Brown v. Illinois, 422 U. S. 590, 604-5 (1975).

[11] Strieff, 136 S. Ct. 2056 at 2062.

[12] See Strieff, 136 S. Ct. 2056.

[13] Strieff, 136 S. Ct. 2056 at 2057.

[14] Id.

[15] Id.

[16] Id.

[17] Id., at 2058.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id., at 2062-63.

[24] Id., at 2073.

[25] Id.

[26] Id., at 2063.

[27] Id.

[28] Id., at 2068.

[29] Id., at 2072.

[30] Id., at 2068.

[31] Id., at 2058.

[32] Id., at 2065.

[33] Id., at 2073.

[34] Orin Kerr, Opinion Analysis: The Exclusionary Rule is Weakened but it Still Lives, SCOTUSblog (June 20, 2016, 9:35 PM), http://www.scotusblog.com/2016/06/opinion-analysis-the-exclusionary-rule-is-weakened-but-it-still-lives/.

[35] See Arizona v. Hicks, 480 U.S. 321 (1987).

An Analysis on Physician Assisted Suicide By: Mary Pat Damrich

An Analysis on Physician Assisted Suicide

By: Mary Pat Damrich

Introduction:

Physician assisted suicide (PAS) is “the practice of providing a competent patient with a prescription for medication for the patient to use with the primary intention of ending his or her own life.”[1] Whether a terminally ill patient has the right to end her life through PAS recently became a high-profile debate after the public decision of Brittany Maynard, a terminally ill 29-year old woman, to end her own life through the practice. [2]

Brittany Maynard was just 29-years old when she was diagnosed with terminal glioblastoma, a rare form of brain cancer.[3] With this diagnosis came an agonizing decision for Brittany: should she receive full brain radiation, a tortious treatment which would likely blind her and leave her mentally handicapped, destroying her final days; or, should she end her own life through PAS?[4] “When Brittany asked what would happen before she died, doctors described intense headaches, seizures of increasing frequency and duration, blindness, dramatic personality changes, and loss of every brain function, including movement and thought, as death approached.”[5] Knowledge of the harrowing symptoms of her disease, along with the knowledge that treatment was futile, lead Brittany to choose to end her life through PAS.[6] At the time, PAS was illegal in her home state of California, so Brittany and her family moved to Oregon so that she could take advantage of the state’s “Death with Dignity” law.[7] In November 2014, Brittany Maynard ingested a lethal prescription and passed away peacefully in her home.[8]

American Constitutional Perspective:

Although Brittany’s story garnered widespread attention in the United States, PAS remains illegal in most of the country.[9] In 1997, the Supreme Court issued two decisions, Washington v. Glucksberg and Vacco v. Quill, in which the Court held that PAS is not a protected liberty interest under the Constitution.[10] The Court determined that the government’s interest in preserving life and avoiding the undue influence of third parties outweighed patients’ interests in the liberty to choose to die through PAS.[11]

Although the Supreme Court determined that there is no constitutionally protected right to PAS, the Court did not ban the practice.[12] Instead, the Court left “the right to legislate on end-of-life procedures lies within the purview of the individual states.” [13]As of 2016, Oregon, Washington, Vermont, California, and Montana have explicitly legalized physicians providing terminally ill adults with prescriptions for lethal doses of medications.[14]

The Pros and Cons of PAS:

The debate on whether PAS should be legalized continues across the country.[15] Both advocates and opponents of its legalization are passionate about their stances. Advocates say that patients who are already going to die from their terminal illnesses should have the right to choose PAS if their suffering becomes unbearable; while opponents believe that legalizing PAS would lead to a variety of problems and injustices.[16] Below are just a few of the positions advocates and opponents have on the issue.

Opponents of PAS fear that legalizing the practice would allow terminally ill patients to be coerced by their families to submit to PAS, as well as allow terminally ill patients to request PAS only because they feel as though they are a burden on their families.[17] Advocates believe that legislative safeguards would prevent these abuses. For example, Oregon has a legislative safeguard that holds physicians criminally and civilly liable for granting a patient’s request for PAS when he feels as though either of these two feared abuses are occurring.[18] [19] Oregon further attempts to prevent these abuses through its requirement that two witnesses verify that the patient’s request for PAS is ‘voluntary and not coerced,”[20] and limits the effect of coercive family members by requiring that at least one of the witnesses not be a family member or entitled to any portion of the patient’s estate.[21] However, opponents of PAS argue that these witnesses do not provide adequate protection against these potential abuses, as they believe that a coercive family member would be able to coerce the witness as well.[22] Whether or not these legislative safeguards are sufficient to protect against these two abuses is a heated debate in itself.

Opponents of PAS also fear that the legalization of the practice would lead to abuses by health insurance companies. Opponents fear that the legalization of PAS would allow for insurance companies to force terminally ill patients to use PAS by agreeing to pay for PAS while refusing to pay for hospice.[23] Advocates rebut this argument by arguing that PAS is not an alternative to hospice or other end of life care, but opponents note that because PAS is less expensive than hospice, the legalization of PAS will affect health insurance companies’ determinations of what they will cover.[24] Advocates believe that, because health insurance is regulated by the state, this determination could be controlled through legislation.[25] For example, the legislature could require insurance companies that cover PAS to cover hospice as well.[26] Additionally, advocates of PAS believe that legalization would actually solve a problem that relates to insurance companies. Because many life insurance policies refuse to pay proceeds when the insured commits suicide, advocates believe that the legalization of PAS would provide a gateway for the terminally ill to end their lives with the knowledge that their families will still receive life insurance proceeds.[27]

Another argument made against the legalization of PAS is that a patient only requests PAS if he suffers from a depression.[28] This argument is supported by studies revealing that depression in terminally ill patients frequently goes undiagnosed, and that once it is diagnosed and treated, a significant amount of patients who had originally pursued PAS change their mind.[29] However, advocates of the law counter this argument by stating that legislative safeguards, such as a requirement for every patient seeking PAS to see a psychiatrist, would prevent this outcome.[30]

Finally, opponents of PAS note that physicians are fallible, and that there is often uncertainty in diagnosis and prognosis of an illness.[31] As a result, there are often times when patients live for much longer than doctors expected, and there are situations in which patients miraculously recover.[32] Opponents to PAS believe that PAS should not be legalized for this reason, as people would be ending their lives when they potentially could have recovered and survived.[33] Furthermore, opponents also believe that the legalization of physician assisted suicide would undermine the role of the physician as a “healer,” a role that is entrenched in the Hippocratic Oath[34]

Conclusion:

Both opponents and advocates of PAS have compelling arguments, and the debate is only just beginning. This analysis suggests that it is nearly impossible to determine whether the legalization of PAS would protect the individual’s right to autonomy or lead to terrible abuses. However, it seems that legalizing PAS and implementing adequate safeguards to prevent abuses would be the best way to preserve a patient’s personal autonomy while taking into account the various arguments opponents have to the practice. Because of the strong arguments both sides hold, the debate on whether or not terminally ill patients have the right to end their lives through the practice will likely be an unsolved issue for many years to come.

[1] Definition of Physician-assisted Suicide, MedicineNet.com, http://www.medicinenet.com/script/main/art.asp?articlekey=32841 (last updated Sept. 20, 2012).

[2] Catherine E. Schoichet, Brittany Maynard on Decision to Die: Now ‘doesn’t seem like the right time,’” CNN (Nov. 3, 2014), http://www.cnn.com/2014/10/29/health/oregon-brittany-maynard-video/.

[3]  Bill Brigs, Brittany Maynard’s Death: Why is Brain Cancer So Lethal?, NBC (Nov. 4, 2014), http://www.nbcnews.com/health/cancer/brittany-maynards-death-why-brain-cancer-so-lethal-n240841 /.

[4]Debbie Ziegler, Mother of Right-to-Die Brain Tumor Sufferer Tells of Final Moments and Why She Wants Assisted Dying Everywhere, Daily Mail (Feb. 16, 2015),

http://www.dailymail.co.uk/news/article-2951622/My-daughter-Brittany-Maynard-died-husband-stroking-hair-read-poetry-mother-right-die-brain-tumor-sufferer-tells-wants-assisted-dying.html#ixzz4NHWkT6WI (“Most frightening to Brittany was a high likelihood of long-term effects: decreased intellect, memory impairment, confusion, personality changes and alteration of the normal function of the area irradiated.”).

[5] Barbara Coombs Lee, Brittany Maynard’s Memory is Helping Us Achieve Death with Dignity,  Time (Jan. 28, 2015), http://time.com/3687736/brittany-maynards-legacy-death-with-dignity/.

[6] Catherine E. Schoichet supra note 2.

[7] Belinda Luscombe, Why a Young Woman with Brain Cancer Moved to Oregon to Die, Time (Oct. 8, 2014), http://time.com/3481599/brittany-maynard-death-with-dignity-oregon-right-to-die-law/ .Catherine E. Schoichet d Her Own Life. Nicole Weisensee Egan. November 2, 2014 at 7:35 PM EDT.rywhere.”

[8] Nicole Weisensee Egan, Terminally Ill Woman Brittany Maynard Has Ended Her Own Life, People (Nov. 2, 2014), http://people.com/celebrity/terminally-ill-woman-brittany-maynard-has-ended-her-own-life/.

[9] Death with Dignity Around the U.S., DeathWithDignity.org, https://www.deathwithdignity.org/take-action/ (last updated Nov. 9, 2016).

[10] See Washington v. Glucksberg, 521 U.S. 702 (1997). See also Vacco v. Quill, 521 U.S. 793 (1997).

[11] Id.

[12] Id.

[13] Alexander R. Safyan, A Call for International Regulation of the Thriving “Industry” of Death Tourism, 33 Loy. L.A. Int’l & Comp. L. Rev. 287 (2011). See also Vacco, 521 U.S. 793 at 798.

[14] FAQs, DeathWithDignity.org, https://www.deathwithdignity.org/faqs/ (Last visited Nov. 13, 2016).

[15] Death with Dignity Around the U.S., DeathWithDignity.org, https://www.deathwithdignity.org/take-action/ (last updated Nov. 9, 2016).

[16] Helene Starks, et al., Physician Aid in Dying, Ethics in Medicine (April 2013), http://depts.washington.edu/bioethx/topics/pad.html.

[17] Mary Harned, The Dangers of Assisted Suicide: No Longer Theoretical, Defending Life 513, 514-17 (2012).

[18] OR. REV. STAT. §127.890(2)-(3).

[19] Id. §127.825.

[20] Id.

[21] Christina White, Physician Aid-in-Dying, 53 Hous. L. Rev. 595, 619 (2015).

[22] Id.

[23] Margaret K. Dore, Note “Death with Dignity”: A Recipe for Elder Abuse and Homicide (Albeit Not by Name), 11 Marq. Elder’s Advisor 387, 398 (2010).

[24] Id.

[25] Christina White supra note 21, at 620.

[26] Id.

[27] Richard Reich, Life Insurance & The Right to Die Movement,LifeInsure.com (Feb. 29, 2016), http://www.lifeinsure.com/life-insurance-right-die-movement/.

[28] Mary Harned supra note 17.

[29] Id. at 514-15.

[30] Christina White supra note 21, at 622.

[31] Helene Starks supra note 16.

[32] Id.

[33] Id.

[34] Australian Human Rights Commission, Euthanasia, Human Rights, and the Law at 58 (2016).

Vergara v. California: California Tenure Law Gets An “F” By: Ross Benson

Vergara v. California: California Tenure Law Gets An “F”

By: Ross Benson 

Most cases of bullying involve one student bullying another classmate. In California, however, it is the teacher’s union that does the bullying. Despite the California Constitution’s affirmation that access to an education is essential to the preservation of rights and liberties,[1] the California Supreme Court’s decision not to review Vergara v. California pokes holes in the state’s commitment to its students. The same group who once fought to open the school house doors have now locked minorities into situations where they derive no meaningful benefit from the right to an education.

Vergara v. California

Nine Los Angeles students filed suit against the State of California, alleging that students received a “grossly ineffective” education as a result of California statutes.[2] Specifically, the students cited the state’s tenure, dismissal, and reduction in force statutes as the basis for the grossly ineffective claim.[3] After reviewing several weeks of evidence and testimony, the trial court found that the statutes related to teacher tenure were unconstitutional because they resulted in such inequality in education that it “shocks the conscious.”[4] Despite evidence to the contrary, the California Court of Appeals held that the same statutes and results that shocked the trial court’s conscious were not facially unconstitutional and that the education provided to low income and minority students was “basically equivalent” to white or affluent students.[5] The California Supreme Court denied certiorari.[6]

Tenure Statutes

The California tenure statutes maintain that a teacher may be given tenure status after just two years on the job[7]—hardly enough time to determine the quality of the teacher. The low threshold for gaining tenure is of central importance because once the teacher obtains tenure, the teacher is near impossible to fire. Of the 275,000 tenured teachers in California, only 2.2 (.0008%) are dismissed on average for unsatisfactory performance.[8] For each dismissal case, a documentation process spanning several years must be completed and then the school district must spend between $250,000 and $450,000 to complete the dismissal action.[9] When teachers are dismissed, the statute requires that superintendents use a “LIFO” (last in, first out) decision making pattern.[10] Hiring and firing is based on seniority, meaning that a poor performing teacher with 20 years of experience will outlast a new hire with better classroom results.

Impact on Poor Minority Students

Even the most ardent critics of teacher tenure statutes must admit that teaching is a difficult job. However, these teachers must be held to the same standards as the students they teach. Whether by the ACT, SAT, semester grades, or another standardized test, students are judged on results. Conversely, these results are also an evaluation of how effective teachers are and enable school districts to understand which teachers are doing the best job.

Faced with the cost and difficulty of removing ineffective teachers, school boards often transfer the least effective teachers from higher income zones to the lowest income areas.[11] As a result, these teachers are assigned to majority black and Latino school districts.[12] According to expert testimony, Latino students are 68% more likely to be taught by a teacher in the bottom 5% of effectiveness, while African-Americans are 48% more likely to be a taught by a similarly ineffective teacher.[13] On the other hand, students in the most wealthy school districts were 65% more likely to experience a teacher lay off, a trend that illustrates the reassignments to the low income areas.[14] With the difficulty of firing teachers and the statutory requirements that protect incumbent teachers, administrators simply move them out of sight and shift the burden to the students who need help the most.

Empirical evidence shows that California does not provide an equal level of education to all students. In determining that California statutes created a discriminatory affect against poor and minority students, the trial court relied on two major studies. First, the court cited a four year study by Harvard economist and education professor Thomas Kane.[15] Kane argues that students in Los Angeles who are taught by a teacher in the bottom 5% of effectiveness lose more than nine months of learning within a single school year compared to students taught by an average level teacher.[16] Additionally, the trial court noted that Stanford economist Raj Chetty’s study posits that a classroom with an ineffective teacher could cost the students $1.4 million in lifetime earnings.[17] If classrooms have several teachers that are ineffective, the loss of earnings will multiply.

Results Matter

When the California Appellate Court held that California tenure laws are constitutional, the court doomed poor and minority students to a future with less opportunity and less earning power. Though the laws may be constitutional, tenure statutes produce an outcome that disproportionately affects poor minority students. Here, the situation is analogous to voter registration laws. Though states may decide when and how voting occurs within each individual state, no state may pass a law that discriminates based on race, sex, income, or age.[18] A law that is constitutional on its face may be struck down if the law impacts the rights or abilities of any group of voters.[19] Recently, for example, North Carolina voter registration laws were rejected by the Fourth Circuit.[20] Though the state was free to determine its voting procedures, the state’s elimination of same-day registration and imposition of voter-ID requirements created a substantial burden on predominately African-American voters and was held unconstitutional.[21] In California, teacher tenure law should be viewed in the same way as voter registration laws; if the law creates a disproportionate outcome against minorities or other groups, the law must be struck down.

With students in the bottom 10% of both math and reading,[22] California simply cannot afford to ignore the generational impact of these tenure laws. If California was graded on student’s performance and access to education, the state would get an “F”.

 

[1] Cal. Const. art. IX, § 1 (“A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people…”).

[2] Vergara v. California, 2014 Cal. Super. LEXIS 1255, at *4 (Cal. Super. Ct. Aug. 6, 2014).

[3] Id.

[4] Id. at *10.

[5] Vergara v. California, 246 Cal. App. 4th 619, 649 (Cal. Ct. App. 2016).

[6] Vergara v. Cal. Teachers Ass’n, cert. denied, No. S234741, 2016 Cal. LEXIS 8387, *8 (Cal. Aug. 22, 2016).

[7] Cal Educ. Code § 44929.21 (Deering 2016).

[8] Dismissal, Students matter, http://studentsmatter.org/case/vergara/dismissal-statutes/ (last visited Oct. 12, 2016).

[9] Id.

[10] Cal Educ. Code § 44955 (Deering 2016).

[11] Vergara, 246 Cal. App. 4th at 636.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 652.

[16] Id.

[17] Id.

[18] 15 U.S.C. § 10101.

[19] 15 U.S.C. § 20510.

[20] League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, (4th Cir. 2014).

[21] Robert Barnes & Ann Marimow, Appeals Court Strikes Down North Carolina’s Voter-ID Law, The Wash. Post (June 29, 2014), https://www.washingtonpost.com/local/public-safety/appeals-court-strikes-down-north-carolinas-voter-id-law/2016/07/29/810b5844-4f72-11e6-aa14-e0c1087f7583_story.html.

[22] Do California Schools Deliver On the Promise of Equal Educational Opportunities For All Kids?, Students Matter, http://studentsmatter.org/cardstack/vergara/#2 (last visited Oct. 12, 2016).

 

Post-Bankruptcy Protections for Discharged Debtors Remain Strong By: Christian Strahl

Post-Bankruptcy Protections for Discharged Debtors Remain Strong 

By: Christian Strahl

            One of the more unique aspects of the American legal system is our Bankruptcy Code. A person, municipality, or business entity can petition for bankruptcy and receive a discharge of all remaining obligations at the conclusion of their bankruptcy case if they filed in good faith and complied with all other requirements.[1] This discharge is a special point of salvation for those who get so far into debt that there is no other way to become solvent; it promotes economic utility and protects consumers from permanent indebtedness. However, beyond simply discharging all remaining debts at the end of the case, there are two significant protections offered by the Bankruptcy Code. The first occurs at the beginning of the case. This is the Automatic Stay, which kicks in as soon as the bankruptcy petition is filed and prevents all collection efforts and any creditor action that would improve their position or otherwise coerce payment.[2] The second, occurs after the case is finished, when the formal discharge from bankruptcy is granted. This discharge releases the debtor from any unpaid obligations, and includes an injunction that protects the now ex-debtor from any creditor that tries to collect on a debt discharged through bankruptcy.[3] These protections are some of the most important rights of debtors, especially less sophisticated debtors. This article examines a recent case from the Bankruptcy Court for the District of Maryland that sharpened the metaphorical teeth on the protections consumers gain when granted a discharge through the bankruptcy system.

The case this article uses to demonstrate the power of consumer protections provided by the discharge is In re Alder.[4] In this case, Alder, and four other people executed a lease guaranty in support of a lease agreement between two business entities in 2008.[5] Roughly two years later, Alder filed for Chapter Seven bankruptcy relief on August 10, 2010.[6] Alder scheduled the Hannons, a married couple who were also part of the group that executed the lease guaranty, as creditors in his bankruptcy case for a potential obligation rising from an unrelated state court case.[7] Alder was granted a discharge of debts and obligations through his Chapter Seven bankruptcy case a few months after his petition was filed.[8] All creditors, including the Hannons, received notice of this discharge.[9]

However, almost five years later, the Hannons filed a civil action against Alder seeking contribution based on the lease guaranty they were all party to.[10] Alder’s attorney contacted the Hannon’s attorney, and threatened to seek sanctions if the case was not dismissed because Alder had received a discharge from the bankruptcy court.[11] The Hannons refused, maintaining that their claim had arisen after the discharge, and the discharge only satisfied pre-existing obligations as opposed to obligations arising post-discharge.[12] Shortening the facts slightly for brevity, Alder moved for sanctions on the grounds that the Hannons were in violation of the discharge injunction, and the Hannons refused to budge from their belief that they had not violated the discharge injunction; the Bankruptcy Court for the District of Maryland found that the Hannons were willfully violating the discharge injunction, and imposed sanctions on them.

The interesting point in this case is that in order for the sanctions the court imposed to be proper, there is a two part test that includes a willfulness requirement.[13] Does it seem proper, that if the Hannons did not believe they were in violation of the discharge injunction, that their violation could have been willful? The court found that the standard for willfulness is not necessarily an intentional violation, but intentional actions that violate the discharge injunction with knowledge that the discharge was granted.[14]

The Hannons maintained that the claim arose after the discharge, and thus had not been discharged through the bankruptcy case.[15] However, the court found that the “execution of the guaranty created a prepetition contingent claim in favor of the Hannons.”[16] This claim, being prepetition, was discharged through the bankruptcy case even though it had been contingent.

This demonstrates the high level of protection that the American bankruptcy system offers to debtors. Once a discharge is received, anyone that was listed as a creditor in the original petition (and any amended petition, as may apply) is notified. This means that if any of those creditors take any intentional action that violates the discharge, even if they believe that action is not a violation, then they have willfully violated the discharge injunction and opened themselves up to potential sanctions. Considering that these sanctions can include actual damages, attorney’s fees, and potentially punitive damages, this is a serious level of protection.[17]

More than anything, In re Alder seems to be an affirmation that the Bankruptcy Code balances debtor and creditor interests, but also affords the debtors it serves many rights and protections not available anywhere else in American jurisprudence. These rights and protections, rather than facing erosion, seem to be standing strong with cases like this safeguarding the rights of the financially downtrodden.

[1] 11 U.S.C.A. § 727(a), (b).

[2] 11 U.S.C.A. § 362(a)(1)-(8).

[3] 11 U.S.C.A. § 524(a)(2)-(3).

[4] In re Alder, No. 10-28229, 2016 WL 5947220 (Bankr. D. Md. Oct. 13, 2016).

[5] Id. at *1

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at *3.

[14] Id.

[15] Id. at *1.

[16] Id. at *3.

[17] Id.

“Activist athletes on college campuses” By Chris Youngpeter

“Activist athletes on college campuses” By Chris Youngpeter

To recognize the power of athletics on college campuses, one needs only to look at the highest paid public employee in each of the 50 states. In 39 states, that employee is a university coach.[1] The power of athletics collided with social activism in Columbia, Missouri in November 2015. On November 7, 2015, black football players from the University of Missouri tweeted a picture with locked arms and an accompanying message that they would no longer play football as long as university president Tim Wolfe remained at the university.[2] The next day those players were joined by dozens of their teammates (black and white) and by football coach Gary Pinkel.[3] Tim Wolfe resigned the next day.[4]

The onus for this football boycott was the buildup of racial tensions on the Missouri campus over the preceding months. The protests of the administration were kick-started by a message posted on September 12, 2015, by Missouri Students Association president Payton Head, detailing the instances of racism he had experienced while a student at Missouri.[5] Throughout September and early October, Missouri students held protests and rallies criticizing the administration’s (and Wolfe’s specifically) delayed response to the concerns raised by Head.[6] In October, the protests coalesced under the name “Concerned Student 1950” and a list of demands were made to the university, including the removal of Wolfe as university president, increased diversity in the faculty, and mandatory diversity training.[7]

Due to the lack of response from the administration to address these demands and the issue of discrimination on campus, graduate student Jonathan Butler started a hunger strike on November 2, pledging not to eat until Wolfe was removed as president.[8] Concerned Student 1950 met with Wolfe and others on November 3 and protestors later confronted Wolfe on November 6, leading Wolfe to apologize for his perceived lack of empathy about the concerns raised by the campus protestors while still retaining his position as president.[9] It was not until November 9, in the immediate aftermath of the football boycott, that Butler’s hunger strike ended with Wolfe’s resignation.[10]

These events raise the question of whether the boycott was a singular event that caused the resignation of Wolfe or whether it was the last nail in the coffin when considered with the hunger strike and the other acts of protest by Missouri students. The long-term impact of the continuing protests and hunger strike is unclear. The humiliation of the deteriorating health of Jonathan Butler and the impact of a protestor-led boycott of services at the university may have shamed the university into making the changes that were made, but the long-term harm is more speculative.[11] The administration was attempting to withstand the PR fallout in the weeks before the football boycott. The boycotting of even a single football game would have significant economic consequences for the University of Missouri, including payment of a one million dollar fine to BYU within 30 days of cancelling their weekend matchup.[12] Missing out on a bowl game in the post season likely would have deprived the university of a six-figure payout.[13] The long-term effects of a boycott are less apparent, but there is evidence that undergraduate application numbers go up with the improved play of a school’s sports programs.[14]

The broader question raised by the events at Missouri concerns the proper role of athletes as activists in the push for social change on college campuses. It may seem simple to support athletes taking a leading role in the equal treatment of all students and faculty on college campuses, but in reality the issue is complex.  Some would argue that, because fans use sports as an outlet to escape the social and political issues of everyday life, athletes should “stay in their lane” and not use the sport that they play to advocate for a political or social cause – or use less serious means to accomplish their goals. Others would pose the question of whether anything at Missouri would have changed if not for these athletes’ protest. Would Tim Wolfe have resigned or been forced out as president? Would the racial inequities at Missouri have been addressed in the same way? The fact that the resignation occurred immediately after the football boycott, even though protests and meetings with the administration had been ongoing for over a month, is a strong indication that the Missouri athletes’ activism was instrumental to those changes.

So, when and how significantly should college athletes participate in social activism on campus? A strike by athletes like the one at Missouri is an extraordinary step to take. It is not an unprecedented step though, as the football team at Grambling State boycotted games in 2013 to protest unsafe athletic facilities.[15] Many of the striking Missouri football players were on full tuition scholarships because they played football. In the aftermath of Wolfe’s resignation, Missouri state legislators proposed a bill that would strip scholarships for striking.[16] This was in large part because they “‘expect[ed] the leadership of this state institution to actually lead and not allow the students to call the shots.’”[17] This would be a purely punitive punishment in response to the fight for social equality on college campuses. Empowering students and student athletes to have their voices heard on social issues does not hurt the power of administrators to lead state institutions. Also, addressing these issues is much more important than playing football games. Wolfe and other Missouri administrators could have exhibited true leadership by working proactively with concerned students to address the racial inequities that existed on Missouri’s campus. By dragging their feet, the administrators emboldened one of the most powerful student groups on campus, football players, to take a leading role in challenging the administration to address the concerns of minority students at Missouri.

The essential factors for athlete activism should be the importance of the cause and the ability to affect change. If players were to boycott over something trivial, like wanting new uniforms or a different color Gatorade on the sideline, they would be ridiculed and it might damage any future attempts at activism. There are also causes that are too difficult for one team to accomplish. If the Northwestern football team was to boycott games in an effort to unionize, for example, that move would have such a low probability of success that it would only hurt the players. Likewise, if the Alabama football team was to threaten a boycott unless the NCAA passed a resolution allowing colleges to pay players a yearly wage, it would likely fail as a singular movement. The actions by the Missouri football team appear justifiable in comparison. Combatting the inequitable treatment of certain groups of people on college campuses is an important issue. This is evidenced by the significant, continuing protests and the fact that a student was willing to make the ultimate sacrifice to achieve his goals. The boycott was also likely to succeed. Besides the economic pressure exerted by the players, their participation in the protest attracted national media scrutiny that weighed heavily on the administration. Some changes were inevitably going to be made and it was likely that the university would accede to the most important of the protestors’ demands.

The Missouri strike does not establish a bright-line rule for determining when college athletes should become involved in social activism, but it does establish that there is a time and place for such actions in our society. In appropriate circumstances activism by athletes on college campuses should be encouraged and applauded.

 

 

[1] Cork Gaines, The highest-paid public employee in 39 US states is either a football or men’s basketball coach, Business Insider (Sep. 22, 2016), http://www.businessinsider.com/us-states-highest-paid-public-employee-college-coach-2016-9/#now-check-out-some-amazing-photos-from-the-rio-paralympics-12.

[2] UPDATE: Black Missouri football players plan to join Wolfe protest through boycott, Missourian (Nov. 7, 2015), http://www.columbiamissourian.com/sports/mizzou_football/update-black-missouri-football-players-plan-to-join-wolfe-protest/article_3af86734-85c4-11e5-95a7-b7f5cd4cfb9e.html.

[3] Emma Vandelinder, Racial climate at MU: A timeline of incidents this fall, Missourian (Nov. 6, 2915), http://www.columbiamissourian.com/news/higher_education/racial-climate-at-mu-a-timeline-of-incidents-this-fall/article_0c96f986-84c6-11e5-a38f-2bd0aab0bf74.html.

[4] Id.

[5] Rohan Nadkarni, Why Missouri’s football team joined a protest against school administration, Sports Illustrated (Nov. 9, 2015), http://www.si.com/college-football/2015/11/09/missouri-football-protest-racism-tim-wolfe.

[6] Id.

[7] Ruth Serven, Departments state support for student group; group calls for Wolfe’s resignation, Missourian (Oct. 21, 2015), http://www.columbiamissourian.com/news/higher_education/departments-state-support-for-student-group-group-calls-for-wolfe/article_c46ec73e-7849-11e5-9edf-cf7d6918f57f.html.

[8] Vandelinder, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Phillip Bump, How the Missouri football team just took down its university president, Wash. Post (Nov. 9, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/11/09/missouri-football-players-and-the-untapped-political-power-of-the-college-student-athlete/.

[13] Id.

[14] Sean Silverthorne, The Flutie Effect: How Athletic Success Boosts College Applications, Forbes (Apr. 29, 2013), http://www.forbes.com/sites/hbsworkingknowledge/2013/04/29/the-flutie-effect-how-athletic-success-boosts-college-applications/#30b03bfc6ac9.

[15] Rohan Nadkarni, Why Missouri’s football team joined a protest against school administration, Sports Illustrated (Nov. 9, 2015), http://www.si.com/college-football/2015/11/09/missouri-football-protest-racism-tim-wolfe.

[16] Tribune Wire Reports, Missouri bill would strip scholarships if athletes strike, Chicago Trib. (Dec. 15, 2015), http://www.chicagotribune.com/sports/college/ct-missouri-bill-college-scholarships-20151215-story.html.

[17] Id.

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