Chevron Deference in a Conservative Court

By: Patrick Ales

Edited By: Maayan Abouzaglo and Arianna Staton

The doctrine of Chevron Deference, may not be inherently political, but as with a large portion of issues on the Supreme Court, the divides are drawn across party lines. The appointment of Amy Coney Barrett to the Supreme Court has given conservatives a 6-3 majority that has not been seen since the 1930s. Although 14 of the 18 most recent appointments have been made by Republican presidents, the court has almost always maintained a 5-4 split with a conservative swing vote, the last of which was Anthony Kenndedy before his retirement. [1] This is coming to an end, as the Trump administration filled three vacancies in the Court and established a new overwhelming conservative majority, leaving uncertain the future of reproductive rights and healthcare. A less talked about consequence of a conservative majority is the future of Chevron Deference, primarily used as a means to reign in the power of the courts to rule on legislative issues, which may see an impending reduction in its scope. The doctrine stems from Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984), in which the NRDC claimed that the Environmental Protection Agency (EPA) had adopted an incorrect interpretation of a 1977 amendment to the Clean Air Act of 1963. [2] This interpretation allowed corporations to evade a review process for air pollution in their plants, but was rejected in a lower court. The Supreme Court would eventually hear Chevron’s appeal and rule that it was not in the Court’s scope to rule on the interpretation of an executive agency, and that the interpretation was formed from a reasonable construction of the statute in question. Holding that the agency in question was tasked with the construction of an answer to an ambiguous legislative statute, the decision set forth a precedent in which courts should defer to the answer of an agency. 

Among the most outspoken of the recent Trump appointees to the Court is Justice Neil Gorsuch. He calls into question the efficiency of the doctrine in a time where the interpretations of executive agencies change rather often, asking whether it is reasonable to ask ordinary citizens “to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held reasonable?” [3] His willingness to publicly speak out against the doctrine in a case that did not expressly warrant consideration of Chevron highlights the sentiment of the conservative majority. Gorsuch takes a similar approach to the late Justice Scalia in his assessment of the two-step Chevron process, in which both justices found it increasingly difficult to find the ambiguous prerequisite applicable to most statutes. [4] 

Gorsuch and the conservative wing took a concrete step toward limiting the scope of the ambiguity clause in Wisconsin Central Ltd. v. United States 200 U.S. 321 (2018). [5] Justice Gorsuch wrote the majority and concluded that employee stock options were not considered “money remunerations” and were thus not subject to the specific act. [6] Justice Breyer of the liberal wing of the Court authored the dissent and argued that there was sufficient ambiguity as to whether stock options were taxable, which would have led him to defer to the Treasury’s reasonable interpretation of the law. [7] The case was split across party lines as Justice Kennedy often agreed with the conservatives in his interpretation of Chevron. The limitations being imposed upon the doctrine also go as far as the reimplementation of the “major issues” question, in which deference is invalidated because the problem at hand is of grave political or economic consequence and should be adjudicated to be more than “reasonable.” In King v. Burwell [8], the Court invoked the major issue doctrine before delving into the qualifications of the case with regards to Chevron. Rather, they saw the issue of the Affordable Care Act to be too important to leave to disputed agency interpretation [9]. While the decision of the case itself has little to do with deference, the implementation of the major issues doctrine opened the door for further limitations to the current scope of Chevron. 

In the same vein, Justice Kavanaugh has expressed hesitancy in allowing for de novo review by the Supreme Court on these “major” issues. Instead, he argues in his dissent of rehearing United States Telecom Association v. FCC that issues of such profound importance should be left to Congress and not decided by the Court or agency in the case of ambiguity. [10] Kavanaugh’s implementation of the major rules doctrine adheres strongly to nondelegation, in which Congress cannot delegate its legislative powers to other branches of government. His rejection of judicial review of the statutes, which would naturally be covered under Chevron, seeks to preserve the legislative authority of Congress [11] and puts greater trust in the lawmaking process, in spite of what his fellow justice Amy Coney Barrett calls the “often-chaotic legislative process.” [12] Barrett has not dealt with Chevron in her time as a judge due to jurisdictional differences with judges like Kavanaugh, whose court saw many more administrative law questions. However, Justice Barrett has often compared her judicial philosophy to the late Justice Scalia, who was not as apprehensive of Chevron as some of his colleagues but still found issues in the loose barrier to find cause for deference to be used. This same reservation has been emulated by Justice Gorsuch. This is not to say that Scalia’s influence on the Court is pro-Chevron, but a strict adherence to his textualism may lead Justice Barrett to be less hostile toward the principle of deference. With her documented distrust of the outcomes of the legislative process to serve a targeted purpose [13], Justice Barrett may be the least willing conservative to revisit the scope of Chevron. 

The trend supported by the first two Trump appointees to the Court is that a more cemented conservative majority would be hostile towards Chevron and in favor of expanding the effects of the nondelegation doctrine. While it remains to be seen what the impact of Justice Barrett’s appointment will be on specific cases of administrative law, it is hard to envision a case where she disagrees with the conservative wing of the court. Barrett is by no means the new ideological center of the court, which probably still remains in the hands of Chief Justice Roberts or even Justice Kavanaugh [14], but administrative law could become one of Barrett’s more moderate points of reference. Mostly due to her strict adherence to originalism, like Justice Scalia, there is uncertainty about how she will apply Chevron, especially since Justice Barrett has not adjudicated on a deference case in her time on the bench. [15] Whether she chooses to emulate Justice Kavanaugh and seek to broaden the scope of the non delegation doctrine through Chevron, or take the route of Justices Gorsuch and Thomas in a more aggressive form of textualism regarding Chevron’s first step [16], Justice Barrett presents a new barrier for proponents of the doctrine and a backbone for those that wish to see its scope reigned in.

NOTES:

1.  Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” 

2.  Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984)

3.  Yeatman, William. “Supreme Court Proves Me Wrong on Judicial Deference.”

4.  Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.”

5.  Wisconsin Central Ltd. v. United States 200 U.S. 321 (2018)

6.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

7. Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

8.  King v. Burwell 576 U.S. 988 (2015)

9.  Sebring, Michael. “The Major Rules Doctrine.” 

10.  Sebring, Michael. “The Major Rules Doctrine.” 

11. Barnett, Kent, Christina L Boyd, and Christopher J Walker. “Judge Kavanaugh, Chevron Deference, and the Supreme Court.”

12.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

13.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

14.  Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” 

15.  Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.” 

16. U.S. Congressional Research Service, Valerie Brannon, and Jared Cole, Chevron Deference: A Primer § (22, 23). 

BIBLIOGRAPHY:

Barnett, Kent, Christina L Boyd, and Christopher J Walker. “Judge Kavanaugh, Chevron Deference, and the Supreme Court.” The Regulatory Review, September 5, 2018. https://www.theregreview.org/2018/09/03/barnett-boyd-walker-kavanaugh-chevron-deference-supreme-court/. 

Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.” Yale Journal on Regulation, July 3, 2018. 

Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” CNN. Cable News Network, September 26, 2020. https://www.cnn.com/2020/09/26/politics/supreme-court-conservative/index.html 

Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.” Roll Call. Accessed December 29, 2020. https://www.rollcall.com/2020/10/08/barrett-with-scalia-as-model-may-be-a-moderate-on-regulation/. 

Sebring, Michael. “The Major Rules Doctrine.” Georgetown Law. Accessed December 29, 2020. https://www.law.georgetown.edu/public-policy-journal/blog/the-major-rules-doctrine/. 

U.S. Congressional Research Service, Valerie Brannon, and Jared Cole, Chevron Deference: A Primer § (2019). 

Yeatman, William. “Supreme Court Proves Me Wrong on Judicial Deference.” Cato Institute, March 2, 2020. https://www.cato.org/blog/supreme-court-proves-me-wrong-judicial-deference. 

Balancing Privacy and Big Data Analytics

By: Claire Lu

Edited By: Dheven Unni and Joni Rosenberg

The production, consumption, and distribution of data generate tremendous social and economic value. As data analytics and digital networks advance and expand, the information accessible to individuals, businesses, and other entities has multiplied. Concurrently, the amount of data generated each day has exceeded the capabilities of traditional data collection methods and thereby engendered the growth of big data analytics. [1]

Big data refers to extremely large data sets rapidly collected from a variety of sources. Following this definition, big data is characterized by the three Vs: volume, velocity, and variety.[ 2]  With the growth of big data, analysts have gained the ability to glean valuable information from large and confusing datasets. This has meaningful applications in healthcare and education, and has also led to several major advances in scientific research. [3] For example, Kaiser Permanente was able to use big data to trace 27,000 cardiac arrests to the drug Vioxx, leading to the drug’s removal from the market. Without big data, researchers may not have been able to connect the drug with its side effects. [4]

While big data undoubtedly brings significant benefits to society, the rise of big data analytics creates new, unprecedented issues. For instance, big data raises questions about the ownership of data and can be used to exclude marginalized groups from opportunities by only advertising benefits such as credit card loans to certain groups. [5] The most prominent issue, however, is preserving privacy despite the pervasiveness of big data. Personal information is scrutinized, and the amount of detail that big data can extrapolate often feels invasive. To compound this issue, the current process of data collection is remarkably opaque, and the lack of a digitally-educated public makes it difficult for consumers to weigh in on questions of individual privacy. [6] While the anonymization of data has been the paradigm in research, it is always possible that individuals can be re-identified from anonymized data. [7] As a result, it is important that the law devises comprehensive measures that protect individuals and govern our data-driven society without stifling it.

Current national privacy law is too limited in scope. The only federal statutes concerning privacy are the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA), which protect the privacy of students and medical patients respectively. Both standards were created prior to the big data boom and only regulate certain types of data. [8] In addition, the White House’s attempt to address privacy in the proposed Privacy Bill of Rights was criticized for its lack of new legislative changes. [9] Thus, it is clear that existing privacy laws must be reexamined. While many call for a radical European Union-style overhaul of privacy laws—an approach that focuses on reducing data collection and regulating its applications—there comes a need to balance the priorities of the individual and the collective. We should remain aware of big  data’s potential while recognizing its ethical and practical shortcomings.

It is unproductive and unrealistic for individuals to opt-out of data collection methods in the twenty-first century. The public shares a stake in analyzing pandemics, identifying effective medicine, improving the policing system, and several other issues that big data can help address. [10, 11] Thus, society benefits when individuals consent to data collection. At the same time, individual privacy concerns are legitimate and cannot be dismissed. Privacy and progress, however, should not be mutually exclusive. Policymakers should create a model that weighs and evaluates the legitimacy of data processing while better regulating big data collection. Given that the uses of big data are diverse and competing interests are rampant, simple solutions will often fall short. [12] There are still several viable approaches, however, that could allow big data to operate more ethically.

Data collection methods need to provide individuals with more agency and choice. Most third-party data collection is virtually invisible in the status quo, and consumers are seldom aware that they are sharing their data. When present, privacy policies posted on websites give individuals only the illusion of security, as they rarely advertise the extent of data collection [13]. More emphasis should be placed on informed consent. The current legal notions of informed consent involve four components: disclosure, competency, decision capacity, and documentation of consent. These ideas are most commonly applied in healthcare, where healthcare professionals take careful measures to ensure that their patients are making informed decisions about medical procedures. [14] A similar approach can be adapted and applied to data collection, as consumers should be able to have some degree of control over the collection and distribution of their data. Algorithmic transparency and clear policies communicated to a digitally-educated public can help consumers and collectors reach a mutual understanding. [15]

In addition, unlimited storage has caused a disturbing increase in the length of data retention. While rights of erasure are codified in the EU, the US lacks methods to enforce privacy rights. This can be attributed to their different approaches to privacy laws—in the US, the right to privacy is largely interpreted as “the right to be left alone” as established in A Treatise on Law of Torts or, in other words, the right to privacy dictates that the government should not invade the privacy of its citizens, but it is not obligated to intervene and keep companies accountable for invasions of privacy. In contrast, the EU has taken more proactive steps to secure the privacy of all its citizens. [16] Both are viable perspectives, but as the threat to privacy has become more immediate, the US should consider implementing provisions that limit unnecessary accumulation of personal data.

The ubiquity of big data presents both opportunities and challenges. While it may be tempting to glorify the advances made by big data, equal attention should be paid to its drawbacks. The law must develop more proactively to the changing landscape of technology by creating laws that hold companies accountable for invasions of privacy. A more aggressive approach to privacy law is necessary to adequately protect consumers and address the complex threat to privacy posed by big data.

NOTES:

1. “A Deluge of Data Is Giving Rise to a New Economy,” The Economist (The Economist Newspaper), accessed January 4, 2021, https://www.economist.com/special-report/2020/02/20/a-deluge-of-data-is-giving-rise-to-a-new-economy.

2. “Big Data Analytics,” IBM, accessed January 3, 2021, https://www.ibm.com/analytics/hadoop/big-data-analytics.

3.  Ibid.

4. Gardiner Harris, Barry Meier, and Andrew Pollack, “Despite Warnings, Drug Giant Took Long Path to Vioxx Recall,” The New York Times (The New York Times, November 14, 2004), https://www.nytimes.com/2004/11/14/business/despite-warnings-drug-giant-took-long-path-to-vioxx-recall.html.

5. Jonas Lerman, “Big Data and Its Exclusions,” SSRN Electronic Journal, September 3, 2013, https://doi.org/10.2139/ssrn.2293765.

6. Charith Perera et al., “Big Data Privacy in the Internet of Things Era,” IT Professional 17, no. 3 (2015): pp. 32-39, https://doi.org/10.1109/mitp.2015.34.

7. Luc Rocher, Julien M. Hendrickx, and Yves-Alexandre De Montjoye, “Estimating the Success of Re-Identifications in Incomplete Datasets Using Generative Models,” Nature Communications 10, no. 1 (2019), https://doi.org/10.1038/s41467-019-10933-3.

8. Cayce Myers, “Big Data, Privacy, and the Law: How Legal Regulations May Affect PR Research,” Institute for Public Relations, December 3, 2020, https://instituteforpr.org/big-data-privacy-and-the-law-how-legal-regulations-may-affect-pr-research/.

9. “What Is the Consumer Privacy Bill of Rights and How Has It Evolved?,” Comparitech, November 27, 2018, https://www.comparitech.com/blog/vpn-privacy/consumer-privacy-bill-of-rights/.

10. Jia, Qiong, Yue Guo, Guanlin Wang, and Stuart J. Barnes. “Big Data Analytics in the Fight against Major Public Health Incidents (Including COVID-19): A Conceptual Framework.” International Journal of Environmental Research and Public Health 17, no. 17 (2020): 6161. https://doi.org/10.3390/ijerph17176161. 

11. IBM, “Big Data Analytics.”

12. Pompeu Casanovas et al., “Regulation of Big Data: Perspectives on Strategy, Policy, Law and Privacy,” SSRN Electronic Journal, 2017, https://doi.org/10.2139/ssrn.2989689.

13. Ibid.

14. “Informed Consent,” Legal Information Institute (Legal Information Institute), accessed March 21, 2021, https://www.law.cornell.edu/wex/informed_consent#.

15. Claudia E. Haupt, Jack M. Balkin, and Anita L. Allen, “Protecting One's Own Privacy in a Big Data Economy,” Harvard Law Review, December 9, 2016, https://harvardlawreview.org/2016/12/protecting-ones-own-privacy-in-a-big-data-economy/.

16. Pompeu Casanovas et al., “Regulation of Big Data.”

BIBLIOGRAPHY:

“Big Data Analytics.” IBM. Accessed January 3, 2021. https://www.ibm.com/analytics/hadoop/big-data-analytics. 

Casanovas, Pompeu, Louis De Koker, Danuta Mendelson, and David Watts. “Regulation of Big Data: Perspectives on Strategy, Policy, Law and Privacy.” SSRN Electronic Journal, 2017. https://doi.org/10.2139/ssrn.2989689. 

“A Deluge of Data Is Giving Rise to a New Economy.” The Economist. The Economist Newspaper. Accessed January 3, 2021. https://www.economist.com/special-report/2020/02/20/a-deluge-of-data-is-giving-rise-to-a-new-economy. 

Harris, Gardiner, Barry Meier, and Andrew Pollack. “Despite Warnings, Drug Giant Took Long Path to Vioxx Recall.” The New York Times. The New York Times, November 14, 2004. https://www.nytimes.com/2004/11/14/business/despite-warnings-drug-giant-took-long-path-to-vioxx-recall.html. 

Haupt, Claudia E., Jack M. Balkin, and Anita L. Allen. “Protecting One's Own Privacy in a Big Data Economy.” Harvard Law Review, December 9, 2016. https://harvardlawreview.org/2016/12/protecting-ones-own-privacy-in-a-big-data-economy/. 

“Informed Consent.” Legal Information Institute. Legal Information Institute. Accessed March 21, 2021. https://www.law.cornell.edu/wex/informed_consent#.

Jia, Qiong, Yue Guo, Guanlin Wang, and Stuart J. Barnes. “Big Data Analytics in the Fight against Major Public Health Incidents (Including COVID-19): A Conceptual Framework.” International Journal of Environmental Research and Public Health 17, no. 17 (2020): 6161. https://doi.org/10.3390/ijerph17176161. 

Lerman, Jonas. “Big Data and Its Exclusions.” SSRN Electronic Journal, September 3, 2013. https://doi.org/10.2139/ssrn.2293765. 

Myers, Cayce. “Big Data, Privacy, and the Law: How Legal Regulations May Affect PR Research.” Institute for Public Relations, December 3, 2020. https://instituteforpr.org/big-data-privacy-and-the-law-how-legal-regulations-may-affect-pr-research/. 

Perera, Charith, Rajiv Ranjan, Lizhe Wang, Samee U. Khan, and Albert Y. Zomaya. “Big Data Privacy in the Internet of Things Era.” IT Professional 17, no. 3 (2015): 32–39. https://doi.org/10.1109/mitp.2015.34. 

Rocher, Luc, Julien M. Hendrickx, and Yves-Alexandre De Montjoye. “Estimating the Success of Re-Identifications in Incomplete Datasets Using Generative Models.” Nature Communications 10, no. 1 (2019). https://doi.org/10.1038/s41467-019-10933-3. 

“What Is the Consumer Privacy Bill of Rights and How Has It Evolved?” Comparitech, November 27, 2018. https://www.comparitech.com/blog/vpn-privacy/consumer-privacy-bill-of-rights/. 

Balancing Power: Exploring Mandatory Minimums as Checks on the Federal Judiciary

By: Hannah Cheves

Edited By: Danielle Spitz

The concept of checks and balances is crucial to understanding the fundamentals of American government. The balance of power between the legislative and judicial branches is often perceived simply as the interactions between Congress and the United States Supreme Court. However, the federal judiciary -- U.S District Court judges around the nation -- is an often-overlooked component of the judicial branch. These judges are subject to upholding sentencing guidelines from the legislative branch. One of these guidelines that have been passed down is that of mandatory minimums. The implementation of mandatory minimum sentencing guidelines, though hotly contested, represents a way that the legislative branch can put checks on the judicial branch, and seeing them as such offers an alternative way to interpret these sentencing guidelines.

The creation of these guidelines allowed lawmakers to rectify what they considered to be a flaw in the judicial system: sentences that were too low for certain offenses. Politicians saw a way to put checks on federal judges’ sentencing power by outlining guidelines to crack down more harshly on drug and gun offenses, which was a measure that initially drew large bipartisan support. [1] However, these mandatory minimum sentencing guidelines have been the target of much debate since the U.S Sentencing Commission revised the sentencing guidelines in 1986 and 1988. The Commission’s revisions included stricter sentences for those convicted of specific crimes, including gun and drug offenses.[1]  For example, a crime involving 5 grams of methamphetamine, in any capacity, has a mandatory minimum of five years. 

Many judges have come out and harshly criticized the measures. One of the most common criticisms comes from the idea that mandatory minimum sentences [2] are too punitive and thus contribute to mass incarceration in the United States, as critics say they punish low-level offenders as heavily as repeat or other high-level offenders. As U.S District Court Judge John Gleeson wrote in a 2013 opinion criticizing the mandatory minimum guidelines, “the vast majority of federal drug offenders who are neither managers nor leaders are subjected to the harsh sentencing scheme that Congress intended only for those who occupy such roles.”[2]

Despite the weight of these criticisms, much of the importance lies not in the content of the guidelines, but rather in the theory behind their implementation. It is an example of the many ways in which the branches of government check and balance each other. It would be unconstitutional for federal judges to operate unchecked, even if the policies that are put into place to check them are largely unpopular. In response to Judge Gleeson’s opinion, U.S District Court Judge James O. Browning authored an opinion highlighting his belief that the judiciary should step back from heavily criticizing sentencing guidelines: “If Congress wants to give the Court more discretion and power, it is in no position to decline more responsibility. On the other hand, if Congress wants to limit judicial discretion in sentencing, it is hardly worth a judicial temper tantrum. Given the many complex issues that are already delegated to federal judges, it is hardly worth judicial breath or ink begging for a little more or complaining about a little less. In the end, the issue is someone else’s call, and the Court tends not to worry about things it can do nothing about.”[3]  The idea behind this defense lies in the fact that the judiciary can do nothing but follow the sentencing guidelines as they are set forth; it is a political issue, not a judicial one. In essence, judges should be willing to take more or less power as it is laid out by the legislative branch because upholding checks and balances is the way the system works even when guidelines are disliked by judges. The implementation behind these guidelines by the legislative branch also lays the foundation for further measures to address concerns with federal sentencing. For example, the First Step Act, passed in 2018 with bipartisan support, intends to shorten mandatory minimum sentences for nonviolent drug offenses and ease the federal “three strikes” rule. This act joins the “safety valve” requirements and is aimed at helping those who qualify out of mandatory minimum sentences.[4]  

Although some criticisms of the content of the guidelines are largely justified and necessary, the implementation of the mandatory minimum sentencing guidelines also must be looked at through the lens of balancing power. Understanding the theory behind their implementation gives more depth to any defenses or criticisms mounted in regards to the content of the guidelines, and allows for more specific critiques and solutions to be brought forth. The judicial branch cannot be unchecked, and so the legislative branch creates ways for their power to be reined in. These criticisms are almost as essential to the balance of power as the methods of checks and balances themselves.

notes:

1. The Anti-Drug Abuse act of 1986 was passed with bipartisan support, and mandatory minimums were included. It was part of the 1980’s War on Drugs. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=149074

2. United States of America vs. Ysidro Diaz, MEMORANDUM EXPLAINING A POLICY DISAGREEMENT WITH THE DRUG TRAFFICKING OFFENSE GUIDELINE (United States District Court, Eastern District of New York January 28, 2013).

3. United States of America vs. Kayla Marie Reyes (United States District Court for the District of New Mexico 2014). 

4. Versions of these laws exist at the state level, and are decided by state legislators, not the federal government

Bibliography:

United States of America vs. Ysidro Diaz, MEMORANDUM EXPLAINING A POLICY DISAGREEMENT WITH THE DRUG TRAFFICKING OFFENSE GUIDELINE (United States District Court, Eastern District of New York January 28, 2013).

United States of America vs. Kayla Marie Reyes (United States District Court for the District of New Mexico 2014).

“PUBLICATIONS.” NCJRS Abstract - National Criminal Justice Reference Service. Accessed January 10, 2021. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=149074. 

“Federal Narcotic Mandatory Minimum Sentences - Sections 841 and 851.” O'Brien Hatfield Reese, PA. Accessed January 10, 2021. https://www.markjobrien.com/a-guide-to-federal-criminal-court/federal-narcotic-mandatory-minimum-sentences-sections-841 and-851/. 

Cassell, Paul. “Are the Federal Sentencing Guidelines for Drug Dealing Unduly Harsh?” The Washington Post. WP Company, April 22, 2019. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/are-the-federal-sentencing-guidelines-for-drug-dealing-unduly-harsh/. 

“Mandatory Minimums and Sentencing Reform.” Criminal Justice Policy Foundation. Accessed January 10, 2021. https://www.cjpf.org/mandatory-minimums. 

“H.R.5484 - 99th Congress (1985-1986): Anti-Drug Abuse Act of 1986.” Congress.gov, October 27, 1986. https://www.congress.gov/bill/99th-congress/house-bill/5484.

Covid-19’s Implications on the IDEA

By: Reese Rosental Saporito

Edited By: Arianna Staton and Olivia Cohen

The IDEA, or the Individuals with Disabilities Education Act, ensures access to public education and aid in school settings for students with disabilities. Over 7.5 million children depend on this aid.[1] However, students have faced eight months of online learning because of the novel Coronavirus. We must continue to enforce IDEA and adapt it to fit the needs of students with disabilities learning in 2020. 

The IDEA is the most recent in a series of laws protecting the rights of students with disabilities. In 1975, President Ford signed the Education for all Handicapped Children Act (EHCA) into law, which has developed into what we know today as IDEA. [3 ]This opened doors for students with disabilities to join their peers in a public school setting. The EHCA outlined that students with disabilities were entitled to appropriate public education in the least restrictive environment possible.[4]  Then, in 2004, the IDEA was passed and later amended through the Every Child Succeeds Act (Public Law 114-95) in 2015.[2] The IDEA reflects an enhancement of services and access to aid for children, including transition planning, and holds schools accountable for aiding students with disabilities in succeeding.[5] IDEA intervention services begin at birth, in which children between birth and two years of age receive early aid, such as early learning tools. Since 1975, the IDEA has created more inclusive classrooms and environments where students with disabilities can flourish and their rights can be protected.[6]

During the COVID-19 pandemic, questions arose on how to adapt these legal protections to affected education environments. In March 2020, The Department of Education, led by Secretary of Education Betsy DeVos, released a statement about the IDEA accommodations during the pandemic. This statement did not give guidelines on how to enforce the IDEA or how to provide adequate accommodations to students with disabilities.[7] The Department of Education eventually explained government guidelines about teaching students with disabilities during a pandemic in September 2020 through a Q&A released by The Office of Special Education Programs.[8] The Q&A reiterated the importance of IDEA Part B Service Provision, emphasizing that Individualized Education Program(IEP) teams remain responsible for ensuring appropriate public education, regardless of what form of learning is offered for the 2020-2021 school year. According to the document, it is up to these IEP teams to perform a yearly assessment and provide guidance for each student's accommodations.[9] The Q&A also states that the IEP team is responsible for outlining necessary online and in-person learning accommodations. 

Still, IEP teams did not receive guidance on developing an action plan to meet the legal requirements of the IDEA.[10] After an initial IEP, how are schools supposed to develop an adequate plan that fits the legalities outlined in the IDEA? Over the course of a school year, particularly during online learning, a disabled student’s needs may drastically change. If the IEP team has already performed their yearly assessment, how will the student’s accommodations change with them? In order to create an effective, legally adequate, and beneficial plan for students with disabilities, I believe an IEP assessment should be performed quarterly as opposed to annually. This will enable more regular check-ins, which will likely create a more effective accommodation plan during the pandemic. Since the needs of students with disabilities vary so much, required frequent IEP assessments will allow for more individualized solutions to the challenges of online learning.

The IDEA puts statutes in place for students who have specific learning disabilities requiring special education services.[11] Section 504 of the U.S. Rehabilitation Act (1973), however, provides accommodations for students with any disability, temporary or long-term, that does not fall under the umbrella of special education. Examples of Section 504 disabilities include temporary physical limitations (broken hand, concussion, etc.), ADD/ADHD, anxiety, depression, etc.[12] 504 accommodations are made in a regular classroom setting as opposed to the IDEA accommodations, which are made in a special education setting.[13] COVID-19 is likely affecting these accommodations just the same as the IDEA accommodations, but there is a more significant issue. The IDEA accommodations include counseling but Section 504 accommodations do not, so 504-eligible students may not be getting the right kind of help.[14]

In my opinion, the new 504 accommodations for mental health-related disabilities are campus wellness centers. Gabrielino High School in San Gabriel, California recently installed a wellness center on campus, which serves as a safe space for students struggling with mental health to not only take a break, but also receive counseling to help work through their feelings and struggles.[15] Throughout online learning, Saporito has provided online therapy as the Wellness Center Coordinator for 504 students. This type of accommodation can allow 504 mental health students to leave class for a period of time to get help, while the teachers know their students are supervised and safe. This type of accommodation helps work through emotional problems rather than giving extra time on assignments, for example, which can be helpful in alleviating stress but does not help work through the issues a student is facing.[16]

COVID-19 has created a period of mass uncertainty across the globe, but especially in school settings. Public schools are required under the law to provide reasonable accommodations for students with disabilities to enable success, achievement, and learning without discrimination. What can be done to ensure the legal implementation of these accommodations is adequately meeting the needs of students with disabilities? I propose the legal requirement of quarterly IEPs to ensure students with disabilities are receiving necessary accommodations year-round. 

Section 504 eligible students with disabilities also need accommodations, but they can look very different. Section 504 includes all mental health issues, so I believe a both plausible and beneficial accommodation would be legally enforcing the implementation of campus wellness centers. Wellness centers provide therapy and conversations with counselors to work through issues, and have been able to effectively provide therapy virtually during the pandemic. Reasonable accommodations are the law, but online learning has created an unprecedented situation. Reform is needed to provide legally adequate aid to students with disabilities under both the IDEA and Section 504 of the U.S. Rehabilitation Act. 

NOTES:

1. About IDEA: The Individuals with Disabilities Education Act

2. About IDEA

3. About IDEA

4. About IDEA

5. About IDEA

6. About IDEA

7. The U.S. Department of Education Press Release about students with disabilities

8. The U.S. Department of Education Q & A about the implementation of the IDEA

9. IDEA Q & A

10. IDEA Q & A

11. About IDEA

12. IEP vs. 504 Plan

13. 504 Education Plans

14. Interview with Chris Saporito

15. Saporito Interview

16. Saporito Interview

BIBLIOGRAPHY:

“504 Plan.” Hopkinton SEPAC. Accessed December 27, 2020. http://www.hopkinton-sepac.org/504-plan.html. 

“About IDEA.” Individuals with Disabilities Education Act. Accessed December 27, 2020. https://sites.ed.gov/idea/about-idea/. 

Bachrach, Steven J., ed. “504 Education Plans (for Parents) - Nemours KidsHealth.” KidsHealth. The Nemours Foundation, September 2016. https://kidshealth.org/en/parents/504-plans.html. 

Chris Saporito (Wellness Center Coordinator, Gabrielino High School) in discussion with the author, December 2020.

“QA Part B Service Provision (PDF).” Accessed December 27, 2020. https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-provision-of-services-idea-part-b-09-28-2020.pdf?fbclid=IwAR0lUw9XQg1TLXSd2IFP9c_KEPD7coP9jdRYXru-T1vM1jLr7dD2wr9QfX0. 

“Secretary DeVos Releases New Resources for Educators, Local Leaders on K-12 Flexibilities, Student Privacy, and Educating Students with Disabilities During Coronavirus Outbreak.” Secretary DeVos Releases New Resources for Educators, Local Leaders on K-12 Flexibilities, Student Privacy, and Educating Students with Disabilities During Coronavirus Outbreak | U.S. Department of Education, March 12, 2020. https://www.ed.gov/news/press-releases/secretary-devos-releases-new-resources-educators-local-leaders-k-12-flexibilities-student-privacy-and-educating-students-disabilities-during-coronavirus-outbreak.