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Criminalizing Juvenile Female Sexuality By Alexis Killough

Criminalizing Juvenile Female Sexuality

By Alexis Killough

It is an all-too-familiar story in modern American society. A teenage girl falls for the attractive young coach at her high school and the relationship soon turns sexual.[1] Inevitably, her parents discover the relationship and object to the seven-year age difference.[2] In this case, however, the girl ends up entering the criminal justice system as a child in need of supervision when her father files a petition with the court.[3] Because she is sixteen, this is not a case of statutory rape, so bringing the girl under the control of the court is the only way to force the relationship to end.[4]

Alabama’s juvenile justice system allows a juvenile court to declare a juvenile to be a child in need of supervision if that juvenile “disobeys the reasonable and lawful demands of his or her parent…and is beyond the control of the parent.”[5] At that point, the juvenile is labeled a status offender under Alabama law and is subject to the control of the court, much like a juvenile who is adjudicated delinquent.[6] While this process comports nicely with the idea of protecting juveniles and allowing the juvenile justice system to assist parents in need, it has been warped to allow the criminalization of sexuality in juvenile girls by “transforming female sexual interest and activity into female delinquency”.[7] The standards used by the status offense system, in Alabama and across the United States, criminalize sexual activity in girls, using the legal system to shame and force them to comply with social norms as determined by the prior generation.

From its inception, the juvenile justice system has functioned as a place where society engages in “largely unchecked and curiously intrusive social control strategies.”[8] Specifically, this has included subjecting juvenile girls to decisions that reflect and reinforce traditional ideas of gender and age appropriate behavior.[9] As part of their traditional role as parens patriae, juvenile courts take a very protective view over teenage girls, declaring them a child in need of supervision for being ungovernable due to sexual activity.[10] Courts reserve heaviest judgement for young girls who “stray from the feminine ideal,” most often by becoming sexually active and losing the perception of virginal innocence.[11] Society usually sees these girls as having a “deeper set of problems” that can only be cured by the intervention of the juvenile justice system.[12] The system then tries to reform them into more “‘appropriate’ young women,” by punishing their sexual behavior.[13]

Girls face a confounding double standard in juvenile courts.[14] Of the juveniles referred to courts for the status offense of ungovernability, the majority are girls being referred for taking part in sexual behavior that their parents percieve as promiscuous.[15] Society generally condemns female promiscuity while celebrating the same behavior in males.[16] The sexual activity leading to the reports is not usually considered extreme or deviant when engaged in by teenage boys.[17] This shifting standard could be an explanation for the disparities between male and female status offenders. A 1995 survey found that 27.5% of arrests of girls were for status offenses, but only 10.5% of arrests of boys were based on status offenses.[18] A study in Connecticut showed that nearly twice as many girls faced status offender cases for sexual activity than boys, though Connecticut law does not specify between the sexes in its status offense law relating to sexual activity.[19] An inordinate number of girls are entering the juvenile justice system for being sexually active while boys taking part in the same activities are left to continue with their childhood uninterrupted.

The status offense system is used to control girls whom their parents suspect of promiscuous behavior.[20] Generally, juvenile status offender cases against sexually active girls start when a parent refers their own child to the courts.[21] These parents experience what has been referred to as a “reflexive reliance” on the courts to straighten out the girls.[22] This ideal is complicated by the function of the juvenile system itself, wherein juveniles are deprived of their liberty like an adult in the traditional criminal system, but they are also treated as children in the deprivation of due process rights.[23]

Once they enter the system for a status offense, it is all too easy for a girl to be adjudicated delinquent. Juveniles who commit status offenses cannot be incarcerated, but judges often “bootstrap” charges and incarcerate girls for violating court orders, transforming them from a status offender to a traditional delinquent.[24] The status offense court order will typically include provisions relating to attending school, following a curfew, and obeying parental authority, but judges have discretion to include “almost anything” in those orders, as long as it fits with the admittedly broad standards of the best interests of the child.[25] Girls who fail to comply fully with the status offender system are subjected to “increasingly punitive interventions” from the court, allowing charges to stack up against them.[26] Something as simple as staying out a few minutes past curfew or skipping class can lead to a girl being incarcerated as a delinquent, right alongside other juvenile delinquents.[27] The process of “bootstrapping” by juvenile judges has transformed the status offense system into a quasi-criminal system throughout most of the United States.[28]

Sexually active girls can quickly be labeled juvenile delinquents just by nature of being sexually active, while sexually active boys still receive a “boys will be boys” treatment regarding their own sexual activity. It is unacceptable to treat girls any differently than boys, just because society expects boys to be sexually active and girls to remain pure and innocent. That double-standard is impossible to enforce and leads to girls being shamed for a natural part of growing-up.

[1] See, e.g., Dixon v. State, 579 So. 2d 29 (Ala. Crim. App. 1990).

[2] Id.

[3] Id.

[4] Id.; Ala. Code § 13A-6-62(a)(1) (LexisNexis 2016).

[5] Ala. Code § 12-15-102(4) (LexisNexis 2016).

[6] Ala. Code § 12-15-201(4) (LexisNexis 2016).

[7] Kim Taylor-Thompson, Girl Talk – Examining Racial and Gender Lines in Juvenile Justice, 6 Nev. L.J. 1137, 1154 (2006).

[8] Id. at 1138.

[9] Id.

[10] Soma R. Kedia, Creating An Adolescent Criminal Class; Juvenile Court Jurisdiction Over Status Offenders, 5 Cardozo Pub. L. Pol’y & Ethics J. 543, 552 (2007).

[11] Taylor-Thompson, supra note 7, at 1138-39.

[12] Id. at 1140.

[13] Cynthia Godsoe, In Search of Meaningful Systemic Justice for Adolescents in New York: Contempt, Status, and the Criminalization of Non-Conforming Girls, 35 Cardozo L. Rev. 1091, 1109 (2014).

[14] Taylor-Thompson, supra note 7, at 1138.

[15] Kedia, supra note 10, at 546.

[16] Taylor-Thompson, supra note 7, at 1144.

[17] Kedia, supra note 10, at 552.

[18] Joyce London Alexander, Aligning the Goals of Juvenile Justice With The Needs of Young Women Offenders: A Proposed Praxis For Transformational Justice, 32 Suffolk U.L. Rev. 555, 569 (1999).

[19] Godsoe, supra note 13, at 1102.

[20] Taylor-Thompson, supra note 7, at 1144.

[21] Kedia, supra note 10, at 557-58.

[22] Taylor-Thompson, supra note 7 at 1139.

[23] Alecia Humphrey, The Criminalization of Survival Attempts: Locking Up Female Runaways and Other Status Offenders, 15 Hastings Women’s L.J. 165. 169 (2004).

[24] Id. at 1093-1100.

[25] Id. at 1100-01.

[26] Id. at 1093.

[27] Id. at 1101.

[28] Id. at 1104.

Female Coaches Are On the Verge of Extinction in College Sports By Barry Burkett

Female Coaches Are On the Verge of Extinction in College Sports

By Barry Burkett

Over this past summer, our nation mourned the loss of the legendary women’s basketball coach and human being Pat Summit. Never settling for the status quo, she inspired young men and women to give the best of themselves in the classroom, their communities, and on the playing field.[1] Her intensity and competitiveness were unrivaled by any coach whether male or female, proven by her eight national championship victories at the University of Tennessee. [2]

We have seen the impact that women in head coaching positions have made in their respective sports and the NCAA in general. So, the big question to ask now is: Why do we not see more women coaching on the sidelines at the collegiate level? Unfortunately, some women who continue to ask this question and challenge the current structure of collegiate athletics are either labeled as feminists or ignored. Now, it is time for men as well to start challenging colleges and universities to stop brushing this question aside and address the inequities faced by women who seek jobs in coaching or those already situated in coaching positions.

It is unacceptable that this problem persists because Title IX of the Education Amendments of 1972 is in place to prevent gender inequities that women face in educational institutions.[3] From a positive perspective, Title IX has been powerful for female student-athletes in their pursuit to make huge strides in collegiate athletics. As of 2015, around 209,472 female student-athletes are competing in collegiate athletics[4] compared to less than 30,000 in 1972[5] and this number will continue to climb. For female coaches, the inverse has actually happened. Since 1972, the number of women in head coaching positions has decreased from 90 percent to 40.2 percent, and only 43 percent of women’s teams are coached by women.[6] In fact, for all the college hoops fan who watched the 2016 NCAA Women’s Division I Basketball Tournament, you may have noticed that all of the teams that advanced to the final four were coached by men.[7] These are not the only top programs that have male coaches hoisting trophies for women’s teams, click here to see what some of the other top Division I athletic programs score in gender equity for coaching.[8]

Certainly, there is nothing wrong with male coaches aspiring to lead a team of young women. Nevertheless, there are inequities when our female coaches face strong barriers to entry if they want to coach for men’s teams and must clear huddles just to coach women’s teams.[9] It is true that a number of factors can be attributed to men making up the majority of the coaching positions for men’s and women’s teams than discrimination per se. Women’s sports have become more lucrative to men as schools create more employment opportunities and the earning potential continues to rise.[10] However, it would be naïve to deny that gender does not play a substantial factor in hiring decisions for athletic directors when only 20.3 percent of collegiate athletic directors are women.[11] Another justification for men dominating coaching positions that has been proposed for years is that women just do not have the same level of interest as men to coach.[12] This justification is definitely without merit given the growing participation rate for female student-athletes in collegiate athletics meaning female interest in coaching should be growing as well.

For the women already in head coaching positions, the current system is far from being a utopia. Over the last decade, several women have claimed that they were fired for speaking up about their athletic department’s discriminatory practices like unequal pay or coaching standards compared to their male counterparts.[13] A recent illustration is the former University of Iowa’s hockey coach Tracey Grisbaum who was fired for the alleged verbal abuse of two female student-athletes although there was “insufficient evidence to substantiate a violation of university policy”.[14]

Grisbaum has a pending lawsuit against the University of Iowa claiming gender discrimination, but the pending Title IX lawsuit filed by four of her former players against the university may prove more groundbreaking for collegiate athletics.[15] The players assert that firing a female coach for using the exact same coaching methods as a male coach compromises the right of female student-athletes to receive the same experience as male athletes due to their sex and/or their coach’s sex.[16] Not only are they brave, these young women are playing an instrumental role in the push for equality in collegiate athletics by raising awareness regarding the different standards set for female coaches to actually coach their players.[17]

Finally, some people may question why increasing the number of women in coaching positions matters. There are several reasons but I will only highlight one. Today, the same inequities that exists in athletics and coaching, like unequal pay and opportunities to lead, are true for women in other male-dominated industries as well where the status quo continues to be accepted. If our colleges and universities can come together and work toward shattering the status quo in collegiate athletics, which has historically been littered with gender stereotypes, there will be positive spillover effects for women in other professional industries.

As we watch our favorite college teams compete this year, we should support our female coaches just as we did the legendary Pat Summit and celebrate them for the competiveness that they contribute to collegiate athletics.


[1] Kate Fagan, Whether or Not You Played for Her, Pat Summit Inspired a Generation of Basketball Players, Espn: Espn W (June 28, 2016),


[2] Id.


[3] Title IX, Education Amendments of 1972, 20 U.S.C. § 1681 (1972) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”).


[4] Sports Sponsorship and Participation Research, Nat’l Collegiate Athletic Ass’n, (last visited Sept. 18, 2016).


[5] Title IX and Athletics Proven Benefits, Unfounded Objection, The Nat’l Coal. For Women And Girls In Educ. 2 (2012),


[6] Mary Pilon, Less Than Half of Women’s College Sports Teams Are Coached by Women, Fortune (September 14, 2015),


[7] John Walters, You’ve Got Male: For the First Time, Only Men Are Coaching the Women’s Final Four Teams, Newsweek (March 30, 2016),


[8] Annie Brown, A Man’s Game: Inside the Inequality that Plagues Women’s College Sports, Reveal (May 5, 2016),


[9] Erin E. Buzuvis, Barriers to Leadership for Women in College Athletics, Introduction to Intercollegiate Athletics, at 275-76 (Eddie Comeaux, ed., 2015).


[10] Pilon, supra note 6.


[11] Alexandria Vollman, Female Athletic Directors: A Scarce but Positive Influence, Insight Into Diversity, (last visited Oct. 19, 2016).


[12] Buzuris, supra note 9, at 281.


[13] Brown, supra note 8.


[14] Brown, supra note 8.


[15] Kate Fagan, Why the Iowa Field Hockey Title IX Complaint Is a Huge Deal, Espn: Espn W (Feb. 5, 2015),


[16] Id.


[17] Id.


Lack of Anti-SLAPP Legislation Prevents Environmental Justice in Alabama by Gonzalo E. Rodriguez

Lack of Anti-SLAPP Legislation Prevents Environmental Justice in Alabama

by Gonzalo E. Rodriguez


On December 22, 2008, the Kingston Fossil Plant–a coal-burning power plant operated by the Tennessee Valley Authority–became the site of what experts coined “the largest environmental disaster of its kind.”[1] The containment dike of a waste landfill collapsed, releasing 5.4 million cubic yards of coal ash–a coal-burning byproduct containing carcinogenic toxics such as mercury, cadmium, and arsenic, which can pollute both water and air.[2] Nearby towns were forced to evacuate, the delivery of electricity and gas was disrupted, and 300 acres of the Watts Bar Reservoir were covered with toxic sludge.[3]


In 2010, the Environmental Protection Agency, tasked with overseeing the coal ash cleanup efforts, identified the Arrowhead Landfill as the ideal disposal site for the toxic sludge.[4] Approximately three million cubic yards of coal ash were to be transported 350 miles from Kingston, TN, a predominantly white town, to Uniontown, AL, a poor and over 91 percent black town in the Black Belt.[5] Concerned for their well-being and with the intent to oppose the decision to turn their town into a toxic dumpsite, several Uniontown residents formed Black Belt Citizens Fighting for Health and Justice.[6]


On April 6, 2016, Green Group Holdings, LLC, and Howling Coyote, LLC, owners and operators of the Arrowhead Landfill, filed a complaint before the District Court of the Southern District of Alabama against Black Belt Citizens and its members.[7] The complaint sought $30 million in damages for libel and slander, alleging that certain posts published in Black Belt Citizens’ Facebook page were false and defamatory.[8] This lawsuit was filed as a result of Black Belt Citizens’ refusal to enter into a proposed settlement offered by Green Group.[9] The proposed settlement stipulated that Green Group would not bring legal action against the Uniontown residents in exchange for access to their electronic devices and access to the group’s social media pages.[10] The proposed settlement would have also required Black Belt Citizens to disclose information about their membership, release all communication with all other environmental groups, and the withdrawal of a pending Title VI claim filed in connection to the landfill permit application.[11]


These types of legal actions have become so commonplace as to earn their own catchy acronym: SLAPPs–Strategic Lawsuits Against Public Participation. The purpose of a SLAPP is simple: to “deny vocal citizens their constitutional right to petition the government.”[12] While many states have passed anti-SLAPP statutes to prevent this sort of coercion, Alabama remains silent.[13] This silence not only jeopardizes the Constitutional speech protections of Uniontown residents, but potentially the very health and well-being of every Alabamian.


The Anatomy of a SLAPP


SLAPPs are frivolous lawsuits often filed by large organizations with deep pockets in order to silence citizen groups whose political activism threatens the organization’s business interests.[14] Typically, SLAPPs involve legal claims such as libel or slander, conspiracy, or a tort action for economic interference.[15] The ultimate goal of a SLAPP is not to seek judicial remedy, but rather to send a message to activists: “that there is a ‘price’ to pay for speaking out politically.”[16] As George Pring–one of the scholars who coined the term–said, the price paid by SLAPP defendants is “a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings.”[17] This price is not only paid by the immediate defendants to a SLAPP but also by the public at large, as the looming threat of legal action is intended to have a chilling-effect on public participation.[18]


Block and Counter: Anti-SLAPP and SLAPPback Statutes


A majority of states have enacted statutes aimed at protecting private individuals and citizen groups from SLAPPs. Recognizing that the inherent danger of SLAPPs lays in their ability to force defendants into costly litigation, Anti-SLAPP statutes allow defendants to file a special motion to strike the complaint.[19] Once the defendant files the special motion to strike, all discovery is suspended–absent a showing of good cause by the plaintiff–until the court rules on the motion.[20] Further, most Anti-SLAPP statutes provide for the recovery of attorney fees and costs to a prevailing SLAPP defendant.[21]


California, often regarded as having the strongest Anti-SLAPP protections, also provides defendants with a proverbial sword. Intended to deter SLAPP plaintiffs from bringing such actions in the future, a prevailing SLAPP defendant may file a SLAPPback action for punitive damages.[22] SLAPPback awards have been anything but nominal. In the case of a hospital worker who was SLAPPed for criticizing the incinerator operations of an infectious-waste disposal company, the jury awarded punitive damages of $86.5 million.[23]


Insufficient Measures: The Alabama Litigation Accountability Act (“ALAA”)


In 1987, the Alabama legislature passed the ALAA, empowering courts to award attorney’s fees and costs against an attorney or party who brings an action “without substantial justification.”[24] The ALAA, however, fails to protect private individuals and citizen groups from SLAPPs for several reasons. First, a SLAPP defendant may not receive ALAA relief until the lawsuit is adjudicated.[25] This leaves SLAPP defendants who do not possess sufficient resources to mount a legal defense no option but to hope for benevolent pro-bono counsel to save the day. Second, an award under the ALAA depends on an affirmative finding by the court that the plaintiff’s claim was asserted “without substantial justification.”[26] This requirement focuses on the plaintiff’s motive, instead on protecting the SLAPP defendant’s First Amendment rights.[27] Lastly, the mere threat of attorneys’ fees may ultimately be a reasonable business cost for the SLAPP plaintiff to bear in exchange for discouraging future public participation.


Environmental Injustice: Maintaining the Status Quo


In Uniontown, a town with barely 2,500 residents and a median income per capita of $8,000,[28] a $30M lawsuit stands as a reminder of the State’s failure to protect the rights of the most vulnerable. Residents of frontline communities such as Uniontown may not have the financial wherewithal nor the political power to influence the State legislature. Our legal and regulatory framework provides these individuals certain avenues through which they may demand their right to breathe clean air, drink water free of deadly contaminants, and raise their children in a safe environment. Yet, without protection from SLAPPs, the voices of frontline communities are silenced. Anti-SLAPP protections stand for the proposition that private individuals and citizen groups should be protected from harassment and intimidation when voicing their concerns in regards to matters of public interest. These protections are particularly crucial to frontline, low-income communities of color, who are often the unwilling hosts of toxic waste dumps and “bear the most severe consequences of environmental degradation and pollution.”[29]


“We are tired of being taken advantage of in this community. The living around here can’t rest because of the toxic material from the coal ash leaking into creeks and contaminating the environment, and the deceased can’t rest because of the desecration of their resting place.”[30] Even though Green Group claims this statement to be false and defamatory,[31] the everyday impacts that the coal ash landfill has had on Uniontown residents are undeniable. As Esther Calhoun, a life-long resident of Uniontown and defendant in the lawsuit said: “It used to be that living in the country you could sit on the front porch, hang your clothes out to dry, [and] barbecue. All that has changed since the landfill.”[32]

[1] Shaila Dewan, Tennessee Ash Flood Larger Than Initial Estimate, N.Y. Times (Dec. 26, 2009),

[2] Coal Ash Basics, EPA, (last visited Oct. 4, 2016).

[3] Sites in Reuse – TVA Kingston Removal Site, EPA, (last visited Oct 4, 2016).

[4] Frequently Asked Questions Regarding the Disposal of Coal Ash at the Perry County Arrowhead Landfill – Union Town, Alabama, EPA, (last visited Oct. 4, 2016).

[5] Matthew Teague, Opponents of Huge Alabama Landfill Fight Company’s $30m Defamation Suit, The Guardian (June 2, 2016),

[6] See Our History, Black Belt Citizens, (last visited Oct. 4, 2016).

[7]  Complaint, Green Group Holdings, LLC. v. Schaeffer, No. 1:16-cv-00145 (S.D. Ala. Apr. 6, 2016).

[8] See Id. at 11-14.

[9] Id.

[10] Green Group Holdings v. Schaeffer – Proposed Settlement Previously Offered to Defendants at 3, ACLU, (last visited Oct. 4, 2016).

[11] Id. at 3-4.

[12] Victor J. Cosentino, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions, 27 Cal. W. L. Rev. 399, 400 (1991).

[13] See SLAPP Stick: Fighting Frivolous Lawsuits Against Journalists, The Reporters Comm. for Freedom of the Press 1, 4 (2011),

[14] See Consentino, supra note 12 at 402.

[15] Id. at 401.

[16] George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 6 (1989).

[17] Id.

[18] Consentino, supra note 12 at 404-05.

[19] The defendant may make a special motion to strike the complaint, unless the court determines that the plaintiff has established a probability that the claim will prevail. Additionally, Anti-SLAPP statutes set time limits for the court to rule on the special motion to strike. See, e.g., LSA-C.C.P. Art. 971(A)(1); Cal. Civ. Proc. Code § 425.16(g); Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003, 005 (referring to the motion as a “motion to dismiss”).

[20] See, e.g., LSA-C.C.P. Art. 971(D); Cal. Civ. Proc. Code § 425.16(b)(1); Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c).

[21] See, e.g., LSA-C.C.P. Art. 971(B); Cal. Civ. Proc. Code § 425.16(c)(1); Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1).

[22] Cal. Civ. Proc. Code § 425.18.

[23] George W. Pring et al., “Strategic Lawsuits Against Public Participation (“SLAPPs”): An Introduction for Bench, Bar, and Bystanders, 12 Bridgeport L. Rev. 937, 955 (1992).

[24] Ala. Code § 12-19-272(a).

[25] See Id. (stating that “the court shall award, as part of its judgment and in addition to any other costs assessed, reasonable attorneys’ fees and costs[.]”) (emphasis added).

[26] Ala. Code § 12-19-272(a).

[27] See Carol Rice Andrews, Motive Restrictions on Court Access: A First Amendment Challenge, 61 Ohio St. L. J. 665,722 (2000).

[28] Matthew Teague, Opponents of Huge Alabama Landfill Fight Company’s $30m Defamation Suit, The Guardian (June 2, 2016),

[29] Rachel Massey, Environmental Justice: Income, Race, and Health, Global Dev. and Env’t Inst. – Tufts Univ. page number? (last visited: Oct. 5, 2016).

[30] Id. (statement by Benjamin Eaton, defendant in the lawsuit).

[31] Complaint, Green Group Holdings, LLC. v. Schaeffer, No. 1:16-cv-00145 at 8 (S.D. Ala. Apr. 6, 2016).

[32] Teague, supra note 28.

Medicaid Waivers: Internal Threats to the Entitlement By Zachary King

Medicaid Waivers: Internal Threats to the Entitlement

By Zachary King 

Over fifty years ago, the new Medicaid statute created a statutory right to health insurance coverage for some of the most medically vulnerable populations of Americans, even for those without the financial ability to obtain such coverage in the private insurance market.[1] Over the past decade, Congress and the Obama administration have taken steps to increase access to health insurance even further. The Affordable Care Act (ACA) effected much of this change, revolutionizing the private health insurance market for the middle class.[2]

The ACA also included a new Medicaid eligibility category, guaranteeing medical assistance to all Americans below an income threshold.[3] In 2012, however, the Supreme Court gutted this provision, finding that the new eligibility category illegally coerced states into covering populations against their will.[4]

Since NFIB, many states have tried to leverage the Centers for Medicare and Medicaid Services (CMS) into approving illegal funding for programs that are advertised as alternatives to Medicaid expansion.[5] These programs are usually state demonstration plans, or “§ 1115 waivers” (so called because they were passed as § 1115 of the Social Security Act).[6] However, states are using  demonstration plans in ways that are clearly contrary to the program’s purpose of providing coverage to medically and financially needy individuals and families, and CMS often faces a choice between an illegal demonstration plan covering part of the population to a less than ideal extent, or no Medicaid coverage at all for that population.

State Demonstration Plans

Demonstration plans allow states to receive federal matching funds to test new mechanisms and aspects of Medicaid while ignoring some of the program’s usual requirements. Plans can only ignore certain Medicaid requirements.[7] Further, plans are only permissible if they are “likely to assist in promoting the objectives of” the Medicaid program.[8] Because federal funding is involved, CMS oversees demonstration plans, and plans require the bureau’s approval.

State demonstration plans are not ACA Medicaid expansion. Medicaid expansion is a specific program creating an eligibility category for people living below 133 percent of the federal poverty level (FPL) who are not otherwise eligible for Medicaid, as described above. The federal government pays almost all of the cost for state implementation of Medicaid expansion.[9] In contrast, federal matching for state demonstration plans are negotiated between CMS and the state government, but the state can expect to be responsible for a greater portion than if they implemented Medicaid expansion.

Dangerous Precedents and Recent Developments

Some demonstration plans proposed by states include waiver requests for some of Medicaid’s most fundamental requirements; even more disturbingly, CMS has approved some of these requests.[10] Waivers that CMS has approved negate the requirements that eligible individuals be enrolled in the program with reasonable promptness, that benefits be comparable for all enrollees, and that enrollees living in poverty not be charged premiums.[11]

Indiana, which received approval for the above waivers for its Healthy Indiana 2.0 program, previously had a state demonstration project in place with fewer waivers.[12] It is possible that the political threat of discontinuing the existing program unless CMS approved additional waivers proved too serious for the bureau to enforce the law and deny the proposal.

Two states recently submitted proposals similar to Indiana’s. The Kasich administration in Ohio proposed a plan, the terms of which were largely dictated by the state legislature, that CMS rejected this month. The Healthy Ohio Plan included requests for waivers of Medicaid’s requirements that eligible applicants be enrolled into the program with reasonable promptness and that they have the opportunity for a fair hearing, among others.[13] Combined with eligibility provisions, these requirements form the backbone of due process in the Medicaid application and enrollment processes. [14] Without the protection these requirements provide, states would have no statutory obligation to enroll people eligible for Medicaid, despite the clear intent of the statute.[15]

Fortunately, CMS rejected Ohio’s proposal, and at least some of the rights inherent in the Medicaid program remain intact.[16] Ohio is notable because it has implemented Medicaid expansion, and rejection of the Healthy Ohio Plan had no effect on the expansion.[17] So, Ohio’s proposed demonstration plan would have rolled back Medicaid coverage, rather than covering more people, and CMS’s rejection protected existing enrollees.

Kentucky also recently proposed a new demonstration plan, which included a request for approval of a work requirement for enrollees to enjoy the full benefits of the program (effectively a waiver of 42 U.S.C. § 1396a(a)(10)(A)).[18] At present, CMS has not decided to approve or disapprove Kentucky’s proposal. Like Ohio, Kentucky has expanded Medicaid.[19] However, Kentucky’s governor ran on the platform of repealing the expansion.[20] So, CMS must choose between approving dangerous waivers, or likely sitting by idly as thousands of Kentuckians lose their health insurance coverage.

Constitutional Overcorrection

If the NFIB Court feared coercion of the state government, they have created an environment that allows for coercion of the federal government. The NFIB decision was meant to allow states to decide whether their Medicaid programs would cover the new statutory population (those with household income below 133% FPL). It did not remove the new population from the statute, and programs are required to cover all members of a statutorily described eligibility group.[21] However, states are able to use demonstration plans that are clearly contrary to the objective of the Medicaid program to cut back coverage, or impose cost and work requirements on enrollees. While this goes on, CMS must either sign its approval of the corruption of a successful, decades old program or sit by helplessly as it watches Medicaid reform, which is still the law of the land, simply disappear state-by-state.

[1] See generally Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (codified as amended in scattered sections of 42 U.S.C.).

[2] See generally Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (codified as amended in scattered sections of 26 and 42 U.S.C.)

[3] 42 U.S.C. § 1396(a)(10)(A)(i)(VIII) (2015).

[4] See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2607 (2012) (“[T]he Secretary cannot apply § 1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.”).

[5] See, e.g., H.B. 64, 131st Gen. Assemb. §§ 5166.40-409 (Ohio 2015).

[6] See generally Leonardo Cuello, Medicaid Expansion Section 1115 Demonstrations Update, Health Advocate, Aug.  2016, (follow “Download Publication” hyperlink).

[7] See 42 U.S.C. § 1315(a)(1) (2014).

[8] 42 U.S.C. § 1315(a) (2014).

[9] 42 U.S.C. § 1396d(y) (2012).

[10] See Cuello, supra note 6, at 1-2.

[11] Id.

[12] Maureen Groppe, Indiana lawmakers OK bill to protect Healthy Indiana Plan, Indy Star (Mar. 11, 2016),

[13] See Ohio Dep’t of Medicaid, Healthy Ohio Program 1115 Demonstration Waiver 39 (2016), (follow the “Healthy Ohio Program 1115 Demonstration Waiver – Final Submission). See generally 42 U.S.C. § 1396a(3), (8) (2015).

[14] See 42 U.S.C. § 1396a(3), (8), (10) (2015).

[15] National Health Law Program, Comment Letter on Healthy Ohio Program Section 1115 Demonstration (Aug. 5, 2016), (follow the “Download Publication hyperlink). [then proceed with the quote

[16] See Jim Provance, U.S. rejects Ohio proposal to require Medicaid premiums, Toledo Blade (Sept. 9, 2016),

[17] Status of State Action on the Medicaid Expansion Decision, Kaiser Family Found (July 7, 2016),,%22sort%22:%22asc%22%7D.

[18] See Ky. Dep’t of Medicaid Services, Kentucky HEALTH 26, 37 (2016), (Kentucky follow the “waiver application” hyperlink).

[19] Status of State Action on the Medicaid Expansion Decision, supra note 17.

[20] Gov. Matt Bevin: Medicaid overhaul will be in place by start of 2017, Lexington Herald-Leader (Dec. 30, 2015),

[21] 42 U.S.C. § 1396a(a)(10)(A)(i) (2015).

“I’m Sorry, We’re Only Giving You Ibuprofen” A Critical Analysis of the Unenforceable Standard of Care in Prison By Ashley Austin

“I’m Sorry, We’re Only Giving You Ibuprofen”

A Critical Analysis of the Unenforceable Standard of Care in Prison

By Ashley Austin

The Eighth Amendment states that “cruel and unusual punishments” shall not be inflicted.[1]  In the past, this phrase had been originally construed to include “proscribing tortures and other barbarous methods of punishment.”[2] Starting in the 1900s, the Supreme Court began interpreting the Eighth Amendment in a more “flexible and dynamic manner.”[3] It has been stated that “(t)he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[4] Furthermore, cruel and unusual punishment has been expressed as an “unnecessary and wanton infliction of pain.”[5] It was not until 1976 that the Court formally addressed medical treatment of prisoners in the context of the Eighth Amendment.[6]

In Estelle v. Gamble, a landmark 8-1 Supreme Court decision, the Court was tasked with determining under what circumstances withholding or mismanaging medical care constitutes a violation of the Eighth Amendment.[7]  In this case, the Court found that the government has an obligation to provide medical care for those currently incarcerated, stating that “[a]n inmate must rely on prison authority to treat his medical needs; if the authorities fail to do so, those needs will not be met.”[8] By applying Gregg v. Georgia’s standard of “unnecessary and wanton infliction of pain” to the government’s obligation to provide medical care, the Court in Estelle addressed what kind of medical treatment, or lack of medical treatment, could constitute a violation of the Eighth Amendment and result in a 42 U.S.C. §1983 claim alleging a violation of constitutional rights by a government agency.[9] Here, the court refused to consider anything less than “deliberate indifference to serious medical needs” as enough to amount to a constitutional violation.[10] They confirmed that, although prisoners are entirely reliant on the prisons to provide medical care, a simple failure to provide adequate care would not be sufficient to establish a claim.[11] Prisoners are required to allege acts or omissions directly relevant to showing deliberate indifference to medical needs.[12] Even negligence in diagnosing or treating an illness would not amount to a constitutional violation.[13] The Court made clear their view that “medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”[14]

This position, concerned with preventing courts from being overflowed with multiple §1983 claims, stands on the ground that prisoners remain able to challenge negligent medical treatment under state tort claims.[15] This division reserves only the most extreme cases for evaluation in federal court where both knowledge of a medical need and deliberate—or intentional—indifference toward the prisoner’s well-being and leaves every day malpractice to state courts. In a perfect society, this would be an acceptable replacement for challenging individual medical treatment that does not meet the necessary standard of care. However, the modern difficulties of bringing medical malpractice claims prevent prisoners from being able to successfully litigate a claim.

Medical malpractice is a medical professional’s “failure to exercise the same degree of care and skill that [other professionals] of the same medical specialty would use under similar circumstances.”[16] Every state has tort law provisions providing the statutory ability to bring claims against a professional for medical malpractice. However, it is commonly required that a plaintiff present expert testimony to show that the defendant’s treatment failed to meet the statutory standard of care.[17]

Many circuits have held that prisoners are not entitled to post-conviction counsel while incarcerated unless directly related to a conviction appeal.[18] Furthermore, any post-conviction claims brought not directly regarding the appeal of their conviction is considered civil in nature and does not require appointed counsel for indigent individuals, regardless of incarceration. As a result, most §1983 claims and medical malpractice claims brought by prisoners are brought pro se with the only assistance coming from prison self-help litigation manuals and the prison law library. As a pro se litigant, many prisoners are unable to afford to hire attorneys, much less expert witnesses required for successful medical malpractice claims.

Fortunately, there are services available in some states to assist prisoners in post-conviction litigation, either pertinent to their case or to the conditions of confinement. There are very few organizations that represent prisoners on post-conviction civil litigation. Two organizations that specialize in post-conviction representation of prisoners are the Prisoners’ Legal Services of Massachusetts and North Carolina Prisoner Legal Services. However, these organizations are extremely uncommon as many prisoner’s rights organizations do not represent individual clients. The organizations representing individual clients are often only focused on claims of innocence. These groups, commonly called Innocence Projects, are located throughout the United States and focus on proving actual innocence of the convicted through evidence unconsidered at the time of the conviction.

Outside of the discussed procedural barriers to allowing individual inmates to challenge their medical treatment, the standard established in Estelle is unlike many other standards established in constitutional challenges. The dissent in Estelle, authored by Justice Stevens, points out the extremely unique approach the majority takes in reversing the Fifth Circuit’s finding.[19] In the Fifth Circuit, the Court found that Gamble had alleged enough information for a §1983 claim to be brought in reversing the District Court’s dismissal on failure to state a claim.[20] The majority reversed this decision, finding that on the information provided alone, considered in the light most favorable to the plaintiff, was insufficient to establish deliberate indifference. Justice Stevens criticizes the standard established, while agreeing with the conclusion in this case. In his dissent Justice Stevens writes that “whether the constitutional standard has been violated should turn on the character of the punishment rather than the motivation of the individual who inflicted it.”[21] Justice Stevens highlights that, typically, constitutional standards are not concerned with the “indifference” of the individuals violating a right, just simply that the right is violated.

It is on this point that I stand with Justice Stevens. The requirement of establishing deliberate indifference, instead of extreme recklessness or negligence, allows for the mishandling of inmate healthcare to go effectively unchallenged in court. If we are to ask pro se inmate litigants to hire an attorney and expert witnesses to ensure their medical treatment is given to them by the government obligated to care for them, instead of providing pathways for the prisons to be held more accountable, we may as well require prisoners to pay for their own medication.

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

[2] Gregg v. Georgia, 428 U.S. 153, 169 (1976) (internal citations omitted).

[3] Id. at 170.

[4] Id. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

[5] Gregg, 428 U.S. at 173.

[6] Estelle v. Gamble, 429 U.S. 97, 102-03 (1976).

[7] See id.

[8] Id.

[9] Id. at 104.

[10] Id.

[11] Id. at 105 (Here, the court examines Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) and adopts Justice Reed’s argument that an “unforeseeable accident” is not a violation of the eighth amendment.).

[12] See id. at 104 (Examples given include deliberate indifference of the doctors to a medical need, prison guards denying or delaying access to care, or interference with prescribed treatment.).

[13] Id. at 105-06 (stating that “in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.”).

[14] Id. at 106.

[15] Id. at 107. (stating that “[a] medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act.”)

[16] Black’s Law Dictionary (10th ed. 2014).

[17] See, e.g., Lightsey v. Bessemer Clinic, 495 So.2d 35 (Ala. 1986); Curtis v. Santa Clara Valley Med. Ctr., 2 Cal.Rptr.3d 73 (Cal. Ct. App. 2003); Berk v. St. Vincent’s Hosp. and Med. Ctr., 380 F. Supp. 2d 334 (S.D.N.Y. 2005); White v. Vanderbilt Univ., 21 S.W.3d 315 (Tenn. Ct. App. 1999).

[18] See, e.g., U.S. v. Webb, 565 F.3d 789 (11th Cir. 2009); U.S. v. Legree, 205 F.3d 724 (4th Cir. 2000); U.S. v. Reddick, 53 F.3d 462 (2d Cir. 1995).

[19] Estelle, 429 U.S. at 109 (Stevens, J., dissenting).

[20] See Gamble v. Estelle, 516 F.2d 937, 941 (5th Cir. 1975), rev’d, 429 U.S. 97 (1976).

[21] Estelle, 429 U.S. at 116 (Stevens, J., dissenting).

Unrecompensed Rape: Race and Judicial Discretion’s Responsibility for the Disparities in Sex Crime Sentencing By: Meg Deitz

Unrecompensed Rape: Race and Judicial Discretion’s Responsibility for the Disparities in Sex Crime Sentencing

By: Meg Deitz

On January 17, 2015, in Stanford, California, a female college student woke up in a hospital room to learn she had been sexually assaulted while lying unconscious behind a dumpster.[1] Five months later, her rapist, Brock Turner, a Stanford University swimmer, received a six-month jail and three-year probation sentence for three counts of sexual assault of an unconscious person, but Turner was released after three months based on time served.[2] After Turner’s sentencing, public accusations rose blaming “white privilege” for lenient rape and sexual assault sentencing.[3] However, outliers to harsh sentences for black men and a lack of data articulating the race, background, and sentence severity of sex offenders handicaps current analysis and reform. Yet, highly prominent in recently reported lenient sentences is the power of judicial discretion to disregard mandatory or advisory rape sentencing guidelines based on racial and gender stereotypes.

Following Brock Turner’s lenient sentence, race came to the forefront of the discussion of sex crime sentencing disparity after Corey Batey, an African American college football star, received a sentence of fifteen years for raping an unconscious fellow student.[4] Batey’s comparably harsh sentence to Turner’s six-month incarceration for raping an unconscious woman remains highlighted as an example of the overzealous punishment of black men by the courts.[5] However, soft sentences and a lack of recent research complicates asserting a claim blaming sentencing disparity primarily on racism.

Despite Batey’s conviction, several cases involving lenient sentences for black sex offenders emerged in the media over the last few years. Notably in Corey Batey’s case, the circumstances varied from Turner’s assault. Batey was involved in the filmed group assault of an unconscious woman along with three fellow football players.[6] The cameraman and only white member of the group, Brandon Vanderburg, currently faces an upcoming sentencing hearing with the same convictions and sentence range as Batey.[7] Last year, another black college football player, Sam Ukwuachu, received only a six-month jail and ten-year probation sentence for raping a conscious and resisting freshman.[8] Finally, Jamil Cooks’ situation remains the most unusual of the group. Cooks, who is also black, obtained a court martial and conviction while a student at the Air Force Academy, leading to his expulsion and required registration as a sex offender.[9] Despite his conviction in 2013, Cooks enjoyed the opportunity to play football and obtain an education at Alcorn State the following school year with Alcorn State noting Cooks’ sex offender status on a school website.[10]

Along with these lenient cases, recent research fails to specifically identify the race and incarceration period of sentenced sex offenders; however, past collective research suggests race plays a primary role in disparate arrest for sex crimes.[11] A 1997 sex offender analysis by the Bureau of Justice Statistics noted that more whites were arrested and eventually incarcerated for rape and sexual assault than African Americans.[12] However, a 2013 study of felony defendants by the Bureau of Justice Statistics reported that from 1990 to 2009, 42% of black defendants versus 29% of white defendants possessed a charge of rape as the most serious charge against them.[13] The study also noted that 89% of convicted rapists experienced incarceration, but failed to detail the length of incarceration or the race of these offenders.[14] Five years have passed without more recent, reliable statistics detailing the relation of race to rape sentencing from 2009 to 2016 and studies citing the length of incarceration for rape by race of the defendant remain largely non-existent. However, the high trend of rape arrests in 2009 suggests that racial stereotypes play a role in present-day enforcement and adjudication of sex crimes.

An explanation of the previously mentioned lenient cases may be tied to Sam Ukwuachu and Jamil Cooks’ athlete status. Athletes maintain a unique status in the social fabric of collegiate institutions where their skills and energy provide them a celebrity status complete with adoring fans.[15] While many college athletes lack the stardom of professionals, college athletes do receive special treatment from courts. In fact, only one in five convicted college athletes ever serve any jail time compared to four out of every five convicted professional athletes.[16] Also, both professional and collegiate athletes enjoy reduced charges, particularly in sex crimes, the most commonly charged crime against athletes.[17] In the case of Corey Batey, the harsher sentence, despite his athleticism, possibly extends from the film and group assault factors of his crime as well as his race. By contrast, the cases of Jamil Cooks and Sam Ukwuachu featuring leniency for black college students may have more to do with their athlete status than any other factor.

Athleticism may have also played into Brock Turner’s reduced sentence; but, regardless, Turner’s reduced sentence did not go unnoticed by California lawmakers. Following Turner’s sentencing hearing in June 2016, the California legislature introduced a new bill, AB 2888, setting a mandatory minimum three year prison term for the sexual assault of an unconscious person.[18] The proposed mandatory minimum is in between the six months Turner received and the six years requested by Santa Clara County prosecutors.[19] However, the blanket mandate of three years’ incarceration still creates problems for sentencing disparity.

Despite United States v. Booker changing the federal mandatory guidelines to advisory in 2005, some states maintain a sentencing system of more obligatory than advisory guidelines for all or some crimes.[20] Mandatory guidelines tend to foster higher enforcement against minorities and increased guilty pleas for lesser offenses as defendants attempt to avoid a mandated prison sentence.[21] Thus, criminal defendants are forced to gamble between seeking a jury trial and opting to just plead guilty, even if innocent, to avoid an unfavorable verdict and fixed sentence.[22] Additionally, despite their name, mandatory guidelines are not always mandatory as judges may still depart from the guidelines for substantial or compelling circumstances.[23] Judicial discretion enabling departure from both advisory and mandatory guidelines traditionally causes many judges to pass judgment on the victim rather than the attacker based on the judge’s personal opinions.[24] The answer to sex crime sentencing disparity exists somewhere between robbing judges of all discretion and refusing to limit their discretion. Judicial education on rape statistics for unreported, charged, and convicted rape claims; increased prosecutorial appeal of overly lenient sentences; or sanctions against judges for inappropriate and erroneous sentencing are possible solutions in need of further investigation.[25]

However, the issue of inconsistent rape and sexual assault conviction and sentencing demands an expedited remedy to remove nineteenth century mentalities from twenty first century justice and reform. This week, public critiques of sex crime punishment increased not only in the United States but also in Canada after a Canadian judge asked a rape victim why she couldn’t “just keep [her] knees together” and then proceeded to acquit her attacker. [26] Greater public outcry, tailored research, and prompt, informed legislative action is needed to protect the most disadvantaged party, the victim, from runaway judicial discretion and to ensure justice for their suffering.


[1] Emanuella Grinberg & Catherine E. Shoichet, Brock Turner Released from Jail After Serving 3 Months for Sexual Assault, Cable News Network (Sept. 2, 2016),


[2] Id.


[3] See Ashley Fantz, Outrage Over 6-Month Sentence for Brock Turner in Stanford Rape Case, Cable News Network (June 7, 2016),; Shaun King, King: Brock Turner and Cory Batey, Two College Athletes Who Raped Unconscious Women, Show How Race and Privilege Affect Sentences, N.Y. Daily News (June 7, 2016),


[4] David Boroff, Former Vanderbilt Football Player Cory Batey Sentenced to 15 Years in Prison for Raping an Unconscious Woman with His Teammates, N.Y. Daily News (July 17, 2016),


[5] Fantz, supra note 3; King, supra note 3.


[6] Boroff, supra note 4.


[7] Id.; Mike McPhate, Former Vanderbilt Football Player Found Guilty in Campus Rape, N.Y. Times (June 19, 2016),


[8] Joe Nocera, Baylor, Football and the Rape Case of Sam Ukwuachu, N.Y. Times (Sept. 1, 2015),

[9] Megan Chuchmach & Brian Ross, Registered Sex Offender Emerges as Star College Football Player, Am. Broad. Co. (Oct. 28, 2014),


[10] Id.


[11] Cassia Spohn, Race, Crime, and Punishment in the Twentieth and Twenty-First Centuries, 44 Crime & Just. 49, 92 (2015) (citing research studies from the seventies and nineties concerning the punishment of African Americans for murder and rape and the need for new research on noncapital sentencing for rape).


[12] Lawrence A. Greenfeld, Bureau of Just. Stat., Sex offenses and Offenders 10-21 (1997) (For rape convictions and sentences, 52.2% of the prison population surveyed was white and 43.7% was black. For sexual assault prisoners, 73.9% were white and 22.8% was black. For arrests of rape by race, 56% were white and 42% were black.).


[13] Id.


[14] Brian A. Reaves, Ph.D, Bureau of Just. Stat., Felony Defendants in Large Urban Counties, 2009 – Statistical Tables, 7-29 (2013).

[15] Kadence A. Otto, Report: Criminal Athletes: An Analysis of Charges, Reduced Charges, and Sentences, 19 J. Legal Aspects of Sport 67, 69-80 (2009).


[16] Id. at 79.


[17] Id. at 78.


[18] Cheryl Miller, Calif. Lawmakers, Citing Turner Case, Embrace Tougher Sex-Assault Penalties, Recorder (June 27, 2016),


[19] Grinberg & Shoichet, supra note 1.


[20] U. S. v. Booker, 543 U.S. 220, 270 (2005); see Nat. St. Cent. St. Cts., State Sentencing Guidelines: Profiles and Continuum 5-27 (2008).


[21] Gary T. Lowenthal, ARTICLE: Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform., 81 Calif. L. Rev. 61, 121-22 (1993).


[22] Id.


[23] See Nat. St. Cent. St. Cts., supra note 19.


[24] Izabelle Barraquiel Reyes, Student Scholarship: The Epidemic of Injustice in Rape Law: Mandatory Sentencing as a Partial Remedy, 12 UCLA Women’s L.J. 355, 375-76 (2003).


[25] See Id. at 377 (commenting on the recommendation of education in schools and the judicial system to understand the effects of rape); Lowenthal, supra note 20 (noting the availability of prosecutorial appeal to limit the abuse of judicial authority in sentencing); Jenna Greene, A Just Punishment in Stanford Sexual Assault Case?: Why We Need Judicial Elections, Recorder, June 13, 2016 , at 6 (discussing the removal of Turner sentencing judge from criminal cases and the need for judicial elections).


[26] AJ Willingham & Carma Hassan, Judge to Woman in Rape Case: ‘Why Couldn’t You Just Keep Your Knees Together?’, Cable News Network (Sept. 13, 2016),

Personae Non Gratae: Trump’s Immigration Ban And Its Predecessors. By: Francisco Canales

Personae Non Gratae: Trump’s Immigration Ban And Its Predecessors.

By: Francisco Canales 

Donald J. Trump will likely go down in history as one of the most controversial presidential candidates in the United States—alongside Huey Long, George Wallace, and Pat J. Buchanan. Recently, Trump picked a fight with a war hero’s family—the Kahns.[1] This fight erupted from his facile plan to protect the United States from attacks carried out by radical Islamic terrorists. He proposed banning “all Muslims” from entering the United States, demonstrating an obvious disregard for peaceful and patriotic Muslims like the Kahns. [2] Trump’s bombastic rhetoric along with his ban proposal incited the Kahns and other Muslim-Americans to speak publicly against him.[3]

In light of Trump’s controversial proposal, this post seeks to analyze United States immigration policies—specifically targeting and banning a group from traveling or migrating to the United States on the basis of nationality, ethnicity, and ideology—that have been implemented.[4]

Where is Trump coming from?

Understanding the political environment of the Republican primary is important to understanding Trump’s rhetoric and immigration proposal. At the time Trump pronounced publicly his proposal, Trump was fighting to win his party’s nomination, and using such bombastic rhetoric galvanized his base to go out and vote for him. And he won the nomination by convincing margins.

As historian Dr. Stephen Schwab notes, the United States’ vulnerability to “successful penetrations and attacks by foreign adversaries” was shown by the “covert actions” of Arab terrorist on 9/11.[5] This vulnerability vividly illustrates the immense and continuous challenges to U.S. national security.[6] After 9/11, jihadist groups like ISIS and lone-wolf terrorists inspired by radical Islamism have continued to cause havoc in American communities.[7] On December 2015, a radical Muslim couple killed fourteen of their friends and acquaintances in St. Bernardino, California.[8] The evidence indicates, according to the FBI, that the wife and husband both pledged their allegiance to the Islamic State.[9] In response to the attack, Trump manifested his proposal to prevent future attacks on U.S. soil by “radical Islamic terrorism,”[10] calling for a temporary travel ban for all Muslims. Some of his fellow Republicans did criticize him for preying on people’s fears and fueling nativist rhetoric.[11]

Déjà vu?

But can Americans really tolerate the enforcement of immigration bans similar to Trump’s? History says, maybe. Several federal laws explicitly banning the travel and migration of groups coming from Asia and other regions have been implemented. Other bans have targeted groups for believing in ideologies that were unequivocally rejected by the majority of Americans.

Chinese Exclusion Act of 1882

The first infamous ban of Asian immigrants in American history is the Chinese Exclusion Act of 1882—federal legislation that explicitly suspended immigration for a specific nationality.[12] This basic exclusion law prohibited Chinese laborers—defined as “both skilled and unskilled laborers and Chinese employed in mining”—from entering the country.[13] The Act, however, specified that “Chinese persons other than laborers” were exempt from the exclusion.[14]  The passage of the Act represented the outcome of years of racial hostility and anti-immigrant agitation by white Americans.[15]

Subsequent amendments to the Act prevented Chinese laborers who had left the United States from returning. The Scott Act of 1888 prohibited immigration, for twenty years, of all Chinese subjects except officials, teachers, students, merchants, or tourists; persons fitting those categories were required to produce certificates from Chinese authorities, countersigned by American representatives.[16] In 1892, the Geary Act extended the system of Chinese Exclusion and required all Chinese to carry on their person a U.S. resident permit.[17]

The exclusion laws had significant impacts on Chinese immigrants coming to America and their communities.[18] Chinese immigrants were placed under a tremendous amount of government scrutiny and were often denied entry into the country on any possible grounds.[19] Chinese communities underwent dramatic changes as well. Families were forced apart, and businesses were closed down.[20] These effects are important to be underscored if Trump is serious about pushing such proposal; because like what happened at the end of the 19th century to the Asian communities in America, Muslims coming to America and their communities here will suffer the same consequences of such travel ban.

Immigration Act of 1924

As nativist sentiment spread, Congress expanded the system of national targeting of other immigrants, including those from Japan and Southern and Eastern Europe.[21] Beginning in 1920, a series of congressional hearings were held to identify problems that immigrants were causing the United States. Tabulations showing that certain immigrants, particularly those from Italy, Greece, and Eastern Europe, were significantly overrepresented in American prisons and institutions for the “feebleminded” were presented.[22] Further, compiled data suggested that these groups were contributing too many genetically and socially inferior people.[23] In 1923, the U.S. Secretary of Labor was sent to Europe to investigate the feasibility of a plan to interview prospective immigrants, similar to Trump’s extreme vetting plan, before embarking to the United States.[24]

The secretary’s testimony and the data presented before Congress ultimately led to a new immigration law in 1924. The Immigration Act of 1924, or Johnson–Reed Act, including the National Origins Act, and Asian Exclusion severely restricted the annual immigration of individuals from countries previously claimed to have contributed excessively to the dilution of American “good stock.”[25] This law primarily restricted immigration of Southern and Eastern Europeans and outright banned the immigration of Arabic and Asian groups.[26]

Immigration Acts of 1903 and 1918

The U.S. government traditionally has employed the immigration laws, particularly the provisions pertaining to the deportation and exclusion of aliens, to attack perceived threats to the domestic status quo. The assassination of President McKinley by a self-proclaimed anarchist and son of Polish immigrants, along with labor strife, culminated in congressional passage of a law in 1903.[27] The Act of 1903 targeted and excluded those from entering the country believed to be a threat to governmental institutions.[28]  It “reflected broader national concerns about radicals in the labor movement. A growing belief that the ‘new immigrants’ from Eastern and Central Europe held political values that threatened the existing social and political status quo helped fuel the attack on anarchism.”[29]

Building on the spirit of the 1903 Act and clarifying ambiguities tangled in the courts, Congress passed the 1918 Immigration Act.[30] The Anarchist Act of 1918 permitted the exclusion or deportation of “aliens who believe in or advocate the overthrow by force or violence of the Government of the United States or of all forms of law.”[31] The federal government employed these immigration law’s ideological provisions to promote domestic ends, deporting undesirables like labor leaders.[32] Similar to Trump’s arguments in support of his ban, these Acts sought to preserve the health of a free republic and the well-being of its people.

The evolution of Trump’s travel ban now in the general election

The U.S. Congress has endorsed several legitimate public policy rationales to enact travel or immigration bans—health and safety, morality,[33] and national security.[34] Veiled under these rationales, bans have dichotomously targeted members on the basis of race and ethnic composition. Now in the general election, the Trump campaign seems to be analyzing the nuances of this issue (Islamic terrorism), moving away from explicit discrimination.[35] Like Hillary Clinton’s current positions on key political issues, Trump’s travel ban has “evolved.”[36] In other words, he advocates now for a more sophisticated and robust process for vetting travelers coming from regions of the world known to have been influenced by radical Islam and an absolute ban for those coming from Syria.[37] This new version resembles immigration bans referenced in this post; it may be a correct step to protect our nation, but its xenophobic roots cannot be so easily plucked.

In conclusion, many have discounted Trump’s ban proposal as inconsequential, bombastic rhetoric. Others think that this ban is impossible to pass both chambers of Congress and be signed into law, and later implemented. But as history shows, the nativist sentiments of this country can make Trump’s proposed ban a reality. Thus, it is important for all—conservatives, liberals, libertarians, and independents—to vigorously question potential laws that wall-off our allies, especially if they endeavor to protect our freedoms and values.

[1] See Eliza Collins, The Trump-Kahn feud: How we got here, usa today (Aug. 2, 2016),

[2] See Russell Berman, Donald Trump’s Call to Ban Muslim Immigrants, The atlantic (Dec. 7, 2016),

[3] See Aziz Ansari, Aziz Ansari: Why Trump Makes Me Scared for My Family, n.y. times (June 24, 2016),

[4] It is important to note at the outset, however, the author does not support Trump’s temporary travel ban.  One can reasonably foresee that if implemented, the negative consequences from it to our financial system will be great, decimating international trade. It will hurt public and private organizations that have Muslim members traveling to the US. This travel ban will blemish the United States’s posture in the world and likely dismantle the comity shared between the United States and other countries, including European countries like France, which has a significant Muslim population. Additionally, such a policy will harm our relationships with our friends living in Muslim communities across the United States. Equally important, as Mr. Kahn punctually suggested, this ban maybe in violation of our nation’s most important founding document, The United States Constitution. However, historically, the U.S. Supreme Court has taken a hands-off approach when asked to review the Congress’s immigration decisions and policymaking under the plenary power doctrine. Mathews v. Diaz, 426 U.S. 67, 81 (1976).

[5] Stephen Irving Schwab, Sabotage at Black Tom Island: A Wake-Up Call for America, 25 international journal of intelligence and counterintelligence 367, 368 (2012).

[6] Id. at 388.

[7]See, e.g., Everything we know about the San Bernardino terror attack investigation so far, La times (December 14, 2015),; Ralph Ellis et al., Orlando shooting: 49 killed, shooter pledged ISIS allegiance, cable news network (June 13, 2016),; Michael Ray, Boston Marathon bombing of 2013, Encyclopedia britannica (last updated May 17, 2016),

[8] Everything we know about the San Bernardino terror attack investigation so far, supra note 8.

[9] Id.

[10] Berman, supra  note 2.

[11] Callum Borchers, The media loved Marco Rubio’s defense of Islam. GOP voters? Probably not so much, wash. post,

[12] Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882), repealed by Chinese Exclusion Repeal Act of 1943, ch. 344, 57 Stat. 600. See, e.g., Separate Lives, Broken Dreams: Chinese Exclusion Era Case Files of the National Archives and Records Administration, Immigration Documents (stating that “in 1882, with a stroke of President Chester Arthur’s pen, the Chinese Exclusion Act became the first race-based immigration law in U.S. history”).

[13] Chinese Exclusion Act, ch. 126, 22 Stat. 58.

[14] Chinese Exclusion Act 6, 22 Stat. at 60.

[15] Yuning Wu, Chinese Exclusion Actbritannica academic (Nov. 13, 2013),

[16] See Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. Rev. 405, 468 n. 295 (2005).

[17] Act of May 5, 1892 (Geary Act), ch. 60, 1, 6-8, 27 Stat. 25, 25-26 (repealed 1943). Numerous other acts were passed during this time that further restricted Chinese immigration. See Act of July 5, 1884, ch. 220, 23 Stat. 115 (repealed 1943) (amending and tightening restrictions in the Chinese Exclusion Act); Act of Oct. 1, 1888 (Chinese Exclusion Act), ch. 1064, 25 Stat. 504 (repealed 1943) (same); Act of Nov. 3, 1893 (McCreary Act), ch. 14, 1-2, 28 Stat. 7, 7-8 (repealed 1943) (requiring certification of residency for Chinese laborers, and defining “laborer” to include skilled and unskilled immigrants); Act  of Aug. 18, 1894, ch. 301, 28 Stat. 372, 390 (granting customs officers final authority to exclude Chinese  “unless reversed on appeal by the Secretary of the Treasury”).

[18] See Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 859 (1987) (stating that “the Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension.”).

[19] Wu, supra note 17.


[21] See Act of Feb. 5, 1917 (Immigration Act of 1917), ch. 29, 2, 29 Stat. 874, 876 (repealed 1952) (restricting Asian immigration); Act of May 19, 1921 (Quota Act (Three Per Cent Act)), ch. 8, 2, 42 Stat. 5, 5 (repealed 1952) (establishing the three percent immigration quota limit); Act of May 26, 1924 (Immigration Act of 1924), ch. 190, 11, 43 Stat. 153, 159 (repealed 1952) (reducing the quota to two percent).

[22]  P.K.W, Eugenicsbritannica academic (May 10, 2016),

[23] Id.

[24] Id.

[25] Id. (Pub.L. 68–139, 43 Stat. 153, enacted May 26, 1924).

[26] See Id.

[27] See Select Comm’n on Immigr. and Refugee Pol’y, Staff Rep.: U.S. Immigration Policy and the National Interest 732 (1981) (linking passage of Immigration Act of 1903 to assassination of President McKinley).

[28] Immigration Act of March 3, 1903, ch. 1012, 2, 32 Stat. 1213, 1214, repealed by Immigration Act of February 5, 1917, ch. 29, 38, 39 Stat. 874, 897.

[29] John A. Scanlan, Aliens in the Marketplace of Ideas: The Government, the Academy, and the McCarran-Walter Act, 66 Tex. L. Rev. 1481, 1493 (1988).

[30] Anarchist Act of October 16, 1918, ch. 186, 40 Stat. 1012, amended by 8 U.S.C. 137 (1925-26) (repealed 1952).

[31] Id.

[32] See, e.g., Jay v. Boyd, 351 U.S. 345, 348 (1956) (permitting Attorney General to deport 65-year-old noncitizen who entered United States in 1921); Galvan v. Press, 347 U.S. 522, 523, 531-32 (1954) (upholding deportation of man who had lived in United States since 1918); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 208 (1953) (refusing re-entry into country of lawful permanent resident who had lived in United States for 25 years).

[33] Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477, 477.

[34] See 40 Stat. 1012; see also Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (Apr. 24, 1996), reprinted in 1996 U.S.C.C.A.N. (110 Stat. 1214).

[35] Jeremy Diamond, Trump on latest iteration of Muslim ban: ‘You could say it’s an expansion,’ Cable news network (July 24, 2016), (“I’m looking now at territory. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”)

[36] See How Donald Trump’s Plan to Ban Muslims Has Evolved, fortune (June 28, 2016),; see also Scott Detrow, Trump Calls to Ban Immigration from countries With ‘Proven History Of Terrorism, nat’l pub. radio (June 13, 2016), (Trump “is currently hedging on whether his plan to ban all Muslim travel, a signature campaign proposal that is still on his website, remains his current position.”).

[37]Alex Pappas, TEXT: Donald Trump’s Speech in Phoenix On Illegal Immigration, Daily caller (Aug. 31, 2016),

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