A Legal History of Affirmative Action

By: Mia Xia

Edited By: Renan Dennig and Anna Westfall

In American society, race plays a significant role in influencing and determining educational outcomes. Throughout a student’s entire educational journey, race consciousness lingers in the minds of BIPOC families. They are forced to worry about how a child’s identity could hinder their ability to learn if the wrong school is chosen. In attempts to address the historical inequities present in the educational system, American universities have made efforts to implement affirmative action measures that allow admissions to account for a student’s racial identity. However, multitudes of white Americans have criticized the practice. They argue that affirmative action discriminates against white students to uplift undeserving students. As a result, with the founding of Students For Fair Admissions Inc., a non-profit that “believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional,” legal advocates have proposed questions of the legality of affirmative action in state and federal courts as a tactic to end the practice. [1] The most recent legal case, Students For Fair Admissions Inc. v. President & Fellows of Harvard College, questions whether or not affirmative action discriminates against Asian American students. With the pending hearing from the Supreme Court, the course of education may change drastically.

The practice of affirmative action began with President John F. Kennedy’s executive order in 1961 requiring government contractors to utilize affirmative action to “ensure that applicants are employed…[and] treated during employment, without regard to their race, creed, color, or national origin.” [2] While affirmative action began as an accountability measure for businesses that received federal funding, the procedure has been broadened to include educational institutions that have discriminated against students of color in the past, using affirmative action as a remedy for their historical injustices. [3] Various laws following President Kennedy’s executive order have been passed to uphold and reaffirm anti-discriminatory practices, notably Title VI of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973. [4] In terms of Supreme Court cases, most decisions have upheld the cruciality of affirmative action as a means to ensure that BIPOC students are not actively discriminated against in admissions processes. With majority decisions in Brown v. Board of Education (1954), Regents of the University of California v. Bakke (1978), and Grutter v. Bollinger (2003), the Supreme Court has consistently recognized the intrinsic purpose of affirmative action and its continued necessity within an inequitable educational system. [5] 

Following these notable legal challenges, in Fisher v. University of Texas (2013 & 2016), Students for Fair Admissions Inc. (SFFA) brought forth a lawsuit on behalf of two white students, Abigail Fisher and Rachel Michalewicz. [6] Students For Fair Admissions sought to challenge affirmative action practices by attempting to identify violations of the Equal Protection Clause of the 14th Amendment that mandates equality under the law. [7] Interestingly, affirmative action actually benefits students like Fisher and Michalewicz as white females. In a report from the American Association of University Women in 2009, it was found that white women were receiving most bachelor’s, master’s, and doctoral degrees. In addition, the number of women physicians tripled over three decades, growing from 7.6% to 25.2%. [8]

In the first instance of the case, Fisher I, the Supreme Court ruled on a 7-1 decision in favor of Fisher on the basis that UT’s admissions policies must be reviewed under strict scrutiny, and ruled that the lower Court of Appeals’ decision in favor of UT Austin did not take the decisions made in Regents or Grutter into enough consideration. [9] The only dissenting opinion from Justice Ginsburg argued that race was only one factor in a holistic admissions process, which was permissible under judicial precedent. She noted the harms of color-blind admissions as an attempt to overlook the historical discrimination students of color have faced. [10] As a result, the case was remanded to promote further deliberations on the university’s admissions practices. 

In the second instance of the case, Fisher II, the Supreme Court upheld in a 4-3 decision that UT Austin's affirmative action policy was constitutional and encouraged more educational opportunities and a diverse student body. [11] Noting the past decision made in Grutter v. Bollinger, where affirmative action policy was allowed but racial quotas were deemed unconstitutional, the majority opinion emphasized their opposition towards utilizing quotas and percentages of a certain racial group as a means of diversifying a university’s student body. [12] 

While these decisions have continued to support and reaffirm the constitutionality of affirmative action, Students for Fair Admissions has continued in its efforts to dismantle the practice on the basis of unfair admissions practices against white students. With the unsuccessful result of Fisher II, the organization began to advocate for color-blind admissions under pretenses that affirmative action violates the Civil Rights Act in 2014, arguing that Harvard has discriminated against Asian American students in their admissions processes. [13] From research conducted by SFFA, the organization argued that Asian American applicants had received significant penalties relative to white students, even if they had stronger academic and extracurricular performance and achievement. [14] However, a subsequent decision issued by the 1st Circuit Court of Appeals followed precedent by upholding the constitutionality of race-conscious admissions. [15]

SFFA v. Harvard currently awaits its Supreme Court hearing in 2022. With a lawsuit against one of the most elite and profound institutions in American education, the Supreme Court could change the course of educational opportunities to adopt a more “color-blind approach.” [16] With Justices Gorsuch, Kavanaugh, and Barrett serving as new additions to the bench since the last affirmative action case, Fisher II, it is entirely uncertain what the outcome will be. Nevertheless, the elimination of affirmative action would pose detrimental consequences for efforts to address and alleviate historical injustices imposed upon BIPOC students. While white Americans perceive affirmative action as a practice that creates “easier” pathways to admissions for BIPOC students, in reality, the process has most benefited and served white females. [17] In addition, even if SFFA has directed its attention towards representing Asian Americans, 70% of Asian American voters actually support affirmative action. [18] Rather than disparaging a practice that had to be implemented to reduce a gap created by centuries of oppression, America ought to critique the foundations of the American university system that have always favored the most privileged applicants. 

NOTES:

1. About, (Students for Fair Admissions), www.studentsforfairadmissions.org/about/

2. Affirmative Action, (Legal Information Institute), www.law.cornell.edu/wex/affirmative_action. 

3. Affirmative Action.

4. Affirmative Action.

5. Martha S. West, The Historical Roots of Affirmative Action, (History Lessons, The Women’s Review of Books, vol. XIII, 1996), lawcat.berkeley.edu/record/1116312/files/fulltext.pdf.

6. Allyson Waller, Lawsuit Targeting UT-Austin’s Affirmative Action Policy Dismissed by Judge, (The Texas Tribune, 27 July 2021), www.texastribune.org/2021/07/27/ut-austin-affirmative-action.

7. Fisher v. University of Texas, (Oyez), www.oyez.org/cases/2012/11-345. 

8. Victoria M. Massie, White women benefit most from affirmative action — and are among its fiercest opponents, (Vox, 23 June 2016), https://www.vox.com/2016/5/25/11682950/fisher-supreme-court-white-women-affirmative-action

9. Fisher v. University of Texas. 

10. Fisher v. University of Texas. 

11. FISHER v. UNIVERSITY OF TEX. AT AUSTIN, (Legal Information Institute, 23 June 2016), www.law.cornell.edu/supremecourt/text/14-981.

12.  FISHER v. UNIVERSITY OF TEX. AT AUSTIN.

13.  P. R. Lockhart, Students for Fair Admissions v. Harvard, the Affirmative Action Case, Explained, (Vox, 19 Oct. 2018), www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.

14.  Students for Fair Admissions v. President of Harvard College, (Casetext, 12 Nov. 2020), casetext.com/case/students-for-fair-admissions-v-president-of-harvard-coll-1.

15.  Students for Fair Admissions v. President of Harvard College.

16.  Jennifer Lee, Affirmative Action and Anti-Asian Racism, (Science, 3 Feb. 2022), www.science.org/content/blog-post/affirmative-action-and-anti-asian-racism.

17.  Sally Kohn, Affirmative Action Has Helped White Women More Than Anyone, (Time, 17 June 2013), time.com/4884132/affirmative-action-civil-rights-white-women.

18.  Lee, Affirmative Action and Anti-Asian Racism.

BIBLIOGRAPHY:

“About.” Students for Fair Admissions, www.studentsforfairadmissions.org/about/.

“Affirmative Action.” Legal Information Institute, www.law.cornell.edu/wex/affirmative_action. Accessed 8 Feb. 2022.

“FISHER v. UNIVERSITY OF TEX. AT AUSTIN.” Legal Information Institute, 23 June 2016, www.law.cornell.edu/supremecourt/text/14-981.

“Fisher v. University of Texas.” Oyez, www.oyez.org/cases/2012/11-345. Accessed 8 Feb. 2022.

Kohn, Sally. “Affirmative Action Has Helped White Women More Than Anyone.” Time, 17 June 2013, time.com/4884132/affirmative-action-civil-rights-white-women.

Lee, Jennifer. “Affirmative Action and Anti-Asian Racism.” Science, 3 Feb. 2022, www.science.org/content/blog-post/affirmative-action-and-anti-asian-racism.

Lockhart, P. R. “Students for Fair Admissions v. Harvard, the Affirmative Action Case, Explained.” Vox, 19 Oct. 2018, www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.

Massie, Victoria M. “White Women Benefit Most from Affirmative Action - and Are among Its Fiercest Opponents.” Vox, 23 June 2016, www.vox.com/2016/5/25/11682950/fisher-supreme-court-white-women-affirmative-action. 

“Students for Fair Admissions, Inc. v. President of Fellows of Harvard College.” samv91khoyt2i553a2t1s05i-wpengine.netdna-ssl.com/wp-content/uploads/2014/11/SFFA-v.-Harvard-Complaint.pdf. Accessed 7 Feb. 2022.

“Students for Fair Admissions v. President of Harvard College.” Casetext, 12 Nov. 2020, casetext.com/case/students-for-fair-admissions-v-president-of-harvard-coll-1.

Waller, Allyson. “Lawsuit Targeting UT-Austin’s Affirmative Action Policy Dismissed by Judge.” The Texas Tribune, 27 July 2021, www.texastribune.org/2021/07/27/ut-austin-affirmative-action.

West, Martha S. “The Historical Roots of Affirmative Action.” History Lessons, The Women’s Review of Books, vol. XIII, 1996, lawcat.berkeley.edu/record/1116312/files/fulltext.pdf

Whole Woman’s Health v. Jackson and its Implications

By: Daniel Wolf

Edited By: Alexandre Brunet and Michael Crystal

         The Supreme Court recently released its decision in Whole Woman’s Health v. Jackson. The case revolved around Texas’s S.B. 8 law, which prohibits doctors from performing abortions after around six weeks into a woman’s pregnancy. S.B. 8 clearly violates Roe v. Wade, the landmark 1973 case in which the Court determined that the Due Process Clause of the Fourteenth Amendment allows women to seek abortions. Consequently, Texas devised a unique strategy for enforcing S.B. 8. To elude judicial review, Texas granted only private citizens – rather than state officials – the right to enforce the law. S.B. 8 provides citizens with “not less than $10,000” for each successful lawsuit brought against someone seeking an abortion made illegal under S.B. 8 or someone who intended to help provide a woman with an illegal abortion.[1] Essentially, this law designated all citizens as bounty hunters and removed all enforcement responsibility from state officials. By positioning private citizens as the enforcers of S.B. 8, Texas intentionally made it unclear whom abortion providers could sue to overturn the law. Ultimately, the Supreme Court remanded the case to a lower court, allowing S.B. 8 to remain in effect for the time being. Moreover, the Court issued a separate decision that prevents citizens from suing most Texas state officials over S.B. 8, drastically limiting people’s ability to effectively challenge the law until its constitutionality can once again be questioned. The Court’s limited ruling in Jackson has troubling implications for protecting fundamental rights in America and could cause states to pass a spate of laws similar to S.B. 8. 

         The Court’s opinion in Jackson is multipronged. In an 8-1 decision, the Court ruled that abortion providers may challenge S.B. 8 by suing “executive licensing officials” in Texas.[2] While this ruling may sound exciting for abortion access supporters, “executive licensing officials” include only state officials “responsible for licensing medical providers.”[3] Notably, it excludes higher-ranking Texas officials, such as court clerks, the attorney general, or the governor. These narrow grounds on which the Court has authorized lawsuits will make further challenges to the law exceedingly difficult.[4] Those wishing to sue the state for S.B. 8 will only be able to secure injunctions “preventing medical providers from being delicensed,” which, as The Guardian writes, will render their lawsuits “largely toothless.”[5] There is no indication that lawsuits brought against licensing officials would prevent potential bounty hunters from filing their own lawsuits, and private citizens may still be able to sue those who help facilitate an abortion.[6]

         In a separate 5-4 decision, the Court explicitly ruled that abortion providers may not sue Texas state clerks or Texas’s attorney general. Justice Neil Gorsuch authored the 5-4 opinion, stating that providers could not sue these state officials because of the doctrine of sovereign immunity, which protects states and state officials from private lawsuits.[7] There exists an exception to sovereign immunity called Ex Parte Young, which allows individuals to sue government officials who “attempt to enforce an unconstitutional law” or a law that runs counter to federal law.[8] However, Justice Gorsuch wrote that Young was inapplicable for state clerks and judges because the exception “does not normally permit federal courts to issue injunctions against state-court judges or clerks.”[9] Gorsuch concluded that suits brought against the attorney general could not proceed because, under the specifics of S.B. 8, the attorney general lacks “any enforcement authority.”[10] 

         There are numerous points of contention in Gorsuch’s argument. First, Gorsuch opines that state clerks and the attorney general are free from lawsuits because of sovereign immunity. However, this assessment requires an exclusionary reading of the precedent outlined in Young. As Chief Justice Roberts noted in his dissent, Young allows individuals to sue state officials for enforcing unconstitutional laws so long as the official in question can “take enforcement actions” under the law.[11] Under S.B. 8, the Texas attorney general can “‘institute an action for a civil penalty’ if a physician violates a rule” of S.B. 8. Thus, the Texas attorney general can “take enforcement actions” under S.B. 8 and should fall under the Young exception.[12] Although court clerks do not “normally” enforce state laws, under the “peculiar” rules of S.B. 8, court clerks still “issue citations and docket S.B. 8 cases” and are thus “sufficiently ‘connect[ed] to such enforcement to be proper defendants’” under Young.[13] 

         A second and more critical issue with Gorsuch’s argument is that he focused too heavily on the intricacies of sovereign immunity and its exceptions. In his dissent, Roberts affirmed that the “novelty” in his analysis of whom sovereign immunity applies to was a consequence of the “novelty of Texas’s scheme.”[14] Indeed, a scheme like Texas’s is unprecedented in America. Gorsuch carefully analyzed the specific details of S.B. 8 and relevant precedent but failed to consider the bigger picture. Texas’s law is a blatant attempt to nullify past Supreme Court rulings. In Marbury v. Madison (1803), perhaps the most important Supreme Court case in America’s history, Chief Justice John Marshall declared for the first time that the Constitution is “the fundamental and paramount law of the nation.”[15] Further, he stated that it “is emphatically the province and duty of the judicial department to say what the law is.”[16] Roberts observed in his dissent that “‘if the legislatures of the several states may, at will, annul the judgments of the courts…and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’”[17] 

         Alas, at least regarding highly contested issues like abortion, the majority of the Court appears to have no interest in enforcing its own rulings. They have demonstrated such by refusing to repeal S.B. 8, which clearly violates the precedents outlined in Roe v. Wade and Planned Parenthood v. Casey. If Texas can violate federal law just by being creative with enforcement tactics, there is nothing to stop other states from doing the same. In a separate dissent, Justice Sonia Sotomayor lambasted the majority opinion because it “effectively invites other States to refine S.B. 8’s model for nullifying federal rights.”[18] Indeed, four states have already begun work on bills strikingly similar to S.B. 8.[19] On December 12, California Governor Gavin Newson announced his intention to design an assault weapons ban akin to S.B. 8 that could run afoul of the Second Amendment like S.B. 8 does of Roe v. Wade. Newsom’s announcement demonstrates that the Court’s decision in Jackson could have unforeseen consequences across the political spectrum.[20] The Court released its decision on December 10, and other states are already using the ruling to devise their own ways to undermine constitutional precedent. If the Court does not reverse course soon and resume enforcing its own precedential opinions, it could lose its position as the final authority on the law of the land, resulting in a dangerous destabilization of the stare decisis-based foundation on which our legal system rests.

Notes:

1. Whole Woman’s Health v. Jackson, 595 U.S. 4 (2021)

2. Whole Woman's Health v. Jackson, 4. 

3. Moira Donegan, “The Supreme Court's Abortion Ruling Is Even More Unsettling than It May Seem,” The Guardian, Guardian News and Media, December 11, 2021, https://www.theguardian.com/commentisfree/2021/dec/11/supreme-court-abortion-ruling-unsettling. 

4. “The Supreme Court’s Abortion Ruling,” The Guardian.

5. “The Supreme Court’s Abortion Ruling,” The Guardian.

6. Mark Joseph Stern, “The Supreme Court's Texas Abortion Decision Is a Disaster for Constitutional Rights.” Slate Magazine. Slate,  December 10, 2021. https://slate.com/news-and-politics/2021/12/supreme-court-texas-abortion-sb8-gorsuch-sotomayor.html. 

7. “The Supreme Court’s Texas Abortion Decision,” Slate Magazine.

8. Ex Parte Young, 209 U.S. 123 (1908)

9. Whole Woman's Health v. Jackson, 3.

10. Whole Woman's Health v. Jackson, 3.

11. Whole Woman's Health v. Jackson, 4.

12. Whole Woman's Health v. Jackson, 3.

13. Whole Woman's Health v. Jackson, 3.

14. Whole Woman's Health v. Jackson, 5.

15. Marbury v. Madison, 5 U.S. 137 (1803)

16. Marbury v. Madison, 4.

17. Whole Woman's Health v. Jackson, 4.

18. Whole Woman's Health v. Jackson, 2.

19. “The Supreme Court’s Texas Abortion Decision,” Slate Magazine.

20. The Associated Press, “California's Governor Pledges to Model an Assault Weapons Ban on Texas Abortion Law,” NPR, NPR, December 12, 2021, https://www.npr.org/2021/12/12/1063489922/california-governor-gavin-newsom-assault-weapons-ban-texas-abortion-law.

Bibliography:

Ex Parte Young, 209 U.S. 123 (1908)

Marbury v. Madison, 5 U.S. 137 (1803)

Press, The Associated. 2021. “California's Governor Pledges to Model an Assault Weapons Ban on Texas Abortion Law.” NPR. NPR. December 12. https://www.npr.org/2021/12/12/1063489922/california-governor-gavin-newsom-assault-weapons-ban-texas-abortion-law. 

“The Supreme Court's Abortion Ruling Is Even More Unsettling than It May Seem | Moira Donegan.” 2021. The Guardian. Guardian News and Media. December 11. https://www.theguardian.com/commentisfree/2021/dec/11/supreme-court-abortion-ruling-unsettling. 

Whole Woman's Health v. Jackson, 595 U.S. 4 (2021)

Stern, Mark Joseph. 2021. “The Supreme Court's Texas Abortion Decision Is a Disaster for Constitutional Rights.” Slate Magazine. Slate. December 10. https://slate.com/news-and-politics/2021/12/supreme-court-texas-abortion-sb8-gorsuch-sotomayor.html.

Chicago’s Criminalization of the Homeless

By: Anna Dellit

Edited By: Patrick Ales and Renan Dennig        

         Homelessness is often treated as a social dilemma, placing the responsibility on non-profits, donations, shelters, and volunteers. However, there is a legal aspect that must be considered when looking at how a city responds to its homeless population. When examining the criminalization of the homeless and the ramifications of the COVID-19 pandemic within Chicago, it is important to note how legislation and court cases have shaped these issues. One form of criminalizing the homeless occurs when actions such as camping, storing items, or sleeping in public areas are made illegal and ticketed. By fining actions that are often caused by a lack of resources, financial or otherwise,  the legal system criminalizes homelessness and in effect creates an unending cycle of poverty and disparity. Additionally, this cycle was further aggravated by the pandemic: Lawyers’ Committee for Better Housing estimated 21,000 Chicago households and almost 542,000 renters could be at risk of eviction. Homelessness in Chicago during the pandemic affects families of color at a higher rate. A study found that while 69% if Black and 63% of Hispanic households reported financial problems, only 33% of white households report similar concerns in comparison.[1] To address these concerns, the City of Chicago had to examine their former anti-homeless ban on panhandling, eviction bans, and how the criminalization of homelessness affects future housing opportunities. The courts and government intervention play a major role in rectifying the matter.

         In the past year, a federal district judge in Chicago found Illinois’s aggressive panhandling laws to be unconstitutional. Panhandling is the act of stopping people on the street or in motorized vehicles asking for money or aid. Prior to these laws being found unconstitutional, those who engaged in panhandling could be fined or ticketed. Advocacy groups for Chicago’s homeless population found that “Violations of Chicago’s ordinance carry a $50 fine for the first or second offense within a year. The fine doubles for a third or subsequent offense within a 12-month period.”[2] In effect, this criminalized and further isolated already marginalized groups. Banning panhandling was found unconstitutional as it violates their freedom of speech protected by the First Amendment. Two men experiencing homelessness, Michael Dumiak and Christopher Simmons “sued after they were repeatedly ticketed and fined for asking passing motorists for help at a suburban Chicago intersection, while charities and religious groups collected donations at the same location without consequence.”[3] The specific targeting of those affected by or experiencing homelessness contributes to the anti-homeless attitude in the city. In reality, Dumiak never intended to break the law, and neither do many others who panhandle on streets and medians: “Some of us are just out here because we need help, especially during this hard time with COVID-19. I can’t find a job right now.”[4]  Chicago’s decision to decriminalize panhandling was not isolated or independent, but rather followed the 2015 Supreme Court ruling in the case of Reed v. Town of Gilbert.[5] While the intent of the case was to end the ban of outdoor signs without a permit in Gilbert, Arizona, the case “rearticulated the standard for when regulation of speech is content based. This determination has already had a large impact on cases involving panhandling regulations and is likely to result in the invalidation of the majority of this nation’s panhandling laws.”[6]

         While the criminalization of panhandling has been rectified, street sweeps and the displacement of people affected by homelessness have persisted. In 2020, due to the COVID-19 pandemic, Chicago Coalition for the Homeless, the National Law Center on Homelessness & Poverty, Legal Council for Health Justice, and other partnering organizations released a letter to the City of Chicago asking to put a moratorium on camp sweeps as recommended by the CDC: “homeless encampments should not be evicted during the COVID-19 pandemic unless the city can offer individual housing units to people experiencing homelessness.”[7] Street sweeps disrupt those living in camp communities by constantly relocating individuals to unfamiliar or unsafe areas. Chicago Coalition for the Homeless found in their investigation that “In the past few months, we have witnessed City crews threaten to ticket people for sleeping on the sidewalk in Uptown, force elderly and disabled people to move their property in the middle of the winter for no apparent reason, bulldoze a tent city while seizing tents that looked almost new and recently occupied, and attempt to seize the tent of a homeless man who was present and asserting that the tent belonged to him.”[8] Chicago advocacy organizations for tent communities, like Tent City Organizers, have filed many lawsuits against the City of Chicago regarding the unconstitutionality of street sweeps. They claim that “the city was violating the homeless people’s First Amendment rights by not allowing them to assemble in their tents and use their tents as symbols of protest of the city’s housing policies; their Fourth Amendment rights by seizing and discarding their property; their Fifth Amendment rights because the homeless people didn’t receive a hearing before having their property confiscated; and their Eighth Amendment rights by effectively criminalizing homelessness.”[9] Unfortunately, the suit was dismissed by Circuit Court Judge Sidney Schenkier on the basis that the camps did not constitute “expression” as stated in the First Amendment.  Additionally, because plaintiff Andy Thayers, a representative of Uptown Tent City Organizers, is not himself homeless, the claims to the other amendments are invalid.[10] For now the displacement and disruption of those affected by homelessness continues to be legal in Chicago, but organizations continue to fight the legality of the practices.

         Another major effect of the COVID-19 pandemic is eviction bans. In June 2020, the COVID-19 Eviction Protection Ordinance was approved and put in place by Chicago’s City Council. This ordinance greatly protected those who were unable to pay their rent due to being laid off or losing primary sources of income due to the pandemic, but there was an an expiration date of October 3, 2021.[11] Even with no end in sight to the pandemic, it does not appear that the eviction moratorium will be reinstated. This follows the August Supreme Court opinion in Alabama Association of Realtors v. Department of Health and Human Services [12], where the “majority of justices on the Court agreed that ordering a nationwide moratorium on evictions was not within the authority of the Centers for Disease Control.”[13] While many families scrambled in preparation for the end of the eviction ban, relief is offered in the form of rental assistance. Unfortunately, many report the application is too extensive and confusing and are unable to access the fund.[14] The end of the ban on evictions is a terrifying wake-up call for many Americans; “According to a survey by the U.S. Census Bureau, an estimated 60,000+ Illinoisans say they are likely to face eviction in the next two months.”[15] The pandemic has further exacerbated the homeless situation in Chicago. With the influx of people transitioning onto the streets, Chicago’s local government must be more lenient and compassionate when dealing with the situation. 

         One step towards equality and inclusivity towards Chicago’s homeless population was the passing of the Public Housing Access Bill in January through the Illinois General Assembly. With this piece of legislation “Illinois became the first state in the nation to remove long-standing barriers that have prevented many people with criminal convictions from living in public housing.”[16] This is important because according to Taylor de Laveaga of The National Law Center on Homelessness & Poverty, "having a criminal record makes you ineligible for many housing programs [...] Even a history of police interaction, which is common for people experiencing homelessness, can support a housing provider's decision to deny admission."[17] The bill sets a limit of 6 months for how far back public housing authorities can look back into a future tenant's criminal record and limits the power public housing authorities have to deny housing solely based on criminal history. In the past, “experiencing homelessness is closely connected to a decline in physical and mental health. For people with criminal records, the risk of homelessness is staggering, and it only increases their likelihood of further interaction with the criminal legal system. More than 25 percent of people experiencing homelessness report being arrested for an activity that was directly related to their homelessness.”[18] This creates a vicious cycle and directly ties criminalization and homelessness in an inequitable relationship.

         While there is a long way to go in order for members of Chicago’s homeless population to be treated with the dignity and respect offered to all Americans, law advocacy groups paired with specialized organization groups are making changes in the courts towards a more inclusive city. The COVID-19 pandemic has exposed hardships and infrastructural issues within housing and in Chicago’s methods of dealing with those affected by homelessness. The hope is that these cracks in the system and the current techniques of moving the homeless population will be remedied and addressed.

Notes:

1. Samuel Carlson, David Mendieta, Julie Dworkin, Estimate of Homeless People in Chicago. (Chicago Homeless.org, 2021)

2. Esa Olumhense, ACLU, Homelessness Advocates Call on Illinois Cities to Repeal Laws Prohibiting Panhandling, Citing First Amendment (Chicago Tribune, 2019) 

3. Federal Court Finds Illinois Anti-Panhandling Law Unconstitutional (ACLU of Illinois, 2021) 

4. Federal Court Finds Illinois Anti-Panhandling Law Unconstitutional

5. Reed et al. v. Town of Gilbert, Arizona, et al. (Supreme Court, 2015). 

6. Panhandling Regulation after Reed v. Town of Gilbert, (Columbia Law Review, 2016)

7. Diane O’Connell, Street Sweeps (ACLU. Chicago Coalition for the Homeless, 2020) 

8. O’Connell, Street Sweeps

9. Maya Dukmasova, Fight for Right to Camp on City Streets Will Continue Despite Legal Setback, Homeless Advocates Say (Chicago Reader, 2021) 

10. Dukmasova, Fight for Right to Camp on City Streets Will Continue Despite Legal Setback, Homeless Advocates Say

11. Know Your Rights: Covid 19 Eviction Protection Ordinance (City of Chicago :: Know Your Rights: COVID 19 Eviction Protection Ordinance, 2021) 

12. Alabama Association of Realtors v. Department of Health and Human Services (Supreme Court August 26, 2021)

13. Illinois Eviction Moratorium Extends through October 2021 for Renters (Domu, 2021) 

14. Lisa Parker and Tom Jones, With Eviction Ban Ending Soon, Illinoisans Rely on Rental Assistance to Fend off Homelessness (NBC Chicago, 2021) 

15. Mola, Landlord Faces Homelessness as Tenants Fall behind on Rent during Eviction Ban (CBS News, 2021) 

16. Spencer Maki, TV6 Investigates: Thousands Could Face Eviction as Illinois Moratorium Ends (kwqc.com, 2021) 

17. John Bae and Margaret diZerega, Illinois Bill Makes History, Highlights... (Vera Institute of Justice, 2017) 

18. Criminalization Perpetuates the Cycle of Homelessness (The Night Ministry, 2019)

Bibliography:

Alabama Association of Realtors v. Department of Health and Human Services (Supreme Court August 26, 2021)

Bae, John, and Margaret diZerega. “Illinois Bill Makes History, Highlights...” Vera Institute of Justice, September 29, 2017. 

Carlson, S., Mendieta, D. and Dworkin, J., 2021. Estimate of Homeless People in Chicago. [online] Chicago Homeless.org. [Accessed 12 December 2021].

Columbia Law Review. “Panhandling Regulation after Reed v. Town of Gilbert.” Columbia Law Review, August 24, 2016. 

“Criminalization Perpetuates the Cycle of Homelessness.” The Night Ministry, September 20, 2019. 

Dukmasova, Maya. “Fight for Right to Camp on City Streets Will Continue Despite Legal Setback, Homeless Advocates Say.” Chicago Reader, August 18, 2021. 

“Federal Court Finds Illinois Anti-Panhandling Law Unconstitutional.” ACLU of Illinois, January 19, 2021. 

“Know Your Rights: Covid 19 Eviction Protection Ordinance.” City of Chicago :: Know Your Rights: COVID 19 Eviction Protection Ordinance, September 14, 2021. 

“Illinois Eviction Moratorium Extends through October 2021 for Renters.” Domu, September 21, 2021. 

O’Connell, Diane. “Street Sweeps.” ACLU. Chicago Coalition for the Homeless, April 3, 2020. 

Reed et al. v. Town of Gilbert, Arizona, et al. (Supreme Court June 18, 2015). 

Lisa Parker, Tom Jones. “With Eviction Ban Ending Soon, Illinoisans Rely on Rental Assistance to Fend off Homelessness.” NBC Chicago. NBC Chicago, September 14, 2021. 

Mola, Mola. “Landlord Faces Homelessness as Tenants Fall behind on Rent during Eviction Ban.” CBS News. CBS Interactive, September 9, 2021. 

Maki, Spencer. “TV6 Investigates: Thousands Could Face Eviction as Illinois Moratorium Ends.” https://www.kwqc.com, October 4, 2021. 

Olumhense, Ese. “ACLU, Homelessness Advocates Call on Illinois Cities to Repeal Laws Prohibiting Panhandling, Citing First Amendment.” chicagotribune.com. Chicago Tribune, May 31, 2019. 

Title 42: A Public Health or Immigration Measure?

By: Allie Tong

Edited By: Joni Rosenberg and Tess Ballis

         Enacted in 1944, Title 42 is a public health measure that gives the Centers for Disease Control and Prevention (CDC) the jurisdiction to determine whether a communicable disease in a foreign country poses a danger of spreading to the United States. If the CDC determines that a disease is a threat and receives presidential approval, it can temporarily prohibit foreign people and property that pose risks from entering the U.S.[1]

         In March 2020, former president Donald Trump enacted Title 42 in response to the COVID-19 pandemic. However, his administration approached with a novel interpretation; under Title 42, border patrols could rapidly expel migrants at the U.S. border for “public health reasons”.[2] Similarly, the Biden administration has perpetuated the same narrative that Title 42 is a public health measure.

         Despite these claims from the Trump and Biden administrations, CDC officials have openly stated that Title 42 does little in preventing the spread of COVID-19, condemning it as “scientifically baseless and politically motivated” in a message to the Biden administration.[3] While over 1.2 million expulsions have been carried out under this law since the start of the pandemic, nearly 11 million people cross the southern border every month. Despite the constant influx of immigrants, there has been no evidence connecting the spread of COVID-19 to the migrants that Title 42 targets, indicating that this policy does little to protect Americans from the virus.[4] Also, the U.S.’s international borders largely remain open to Western travelers, implying that there is no public-health motivated need to turn away refugees at the southern border and expel them to their home countries.

         Additionally, there is an argument that Title 42 has the opposite effect of the purpose the Biden administration claims it serves. By rounding up hundreds of thousands of immigrants, failing to offer COVID-19 tests, and holding these immigrants for days and often even weeks, the expulsion policy is actually increasing the transmission of the virus. Moreover, Mexican border cities are already struggling to prevent the spread of COVID-19, and with the U.S. sending so many immigrants back across the border at such a fast rate, shelters in these cities are quickly overcrowding. Maintaining social distance and controlling the spread of the virus are impossible tasks. 

         However, one interpretation is that the spread of COVID-19 in this situation is contained in the migrant community, meaning that Title 42 does technically protect the American population from COVID-19. This then becomes a question of whether Title 42’s public health protections include immigrants. The CDC’s and the United Nations’s answers to this question is that the purposes of public health are to prevent disease, to prolong life, and to promote health regardless of national borders, hence drawing a conclusion that Title 42 threatens, rather than protects, the public health.[5]

         Under the conclusion that Title 42 is not a public health policy, it should instead be treated as an immigration measure. Asylum is a protection granted to foreign nationals already in the U.S. or at the border who are unable to return to their home country due to past persecution or a well-founded fear of persecution in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion”.[6] Under the UN 1967 Protocol, the U.S. has legal obligations to provide protection to those who qualify as refugees. However, Title 42 violates this long-standing guaranteed right to seek asylum, therefore making it illegitimate in the context of immigration law. This same conclusion was reached by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia, stating that expelling asylum-seekers denies them the "opportunity to seek humanitarian benefits".[7]

         Title 42 is therefore an immigration measure disguised as a public health effort. The policy’s main intention is to limit immigration exclusively coming from the U.S.’s southern border. Title 42 follows America’s longstanding anti-immigration sentiments towards Latinx communities that are rooted in racist and xenophobic fears, rather than any legal or rational basis.

Notes:

1. Andrea Castillo and Karen Garcia, “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight,” Los Angeles Times (Los Angeles Times, October 25, 2021), https://www.latimes.com/politics/story/2021-10-25/what-is-title-42-how-does-it-impact-us-border-immigration. 

2. Andrea Castillo and Karen Garcia, “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight”.

3. “Press Release - Epidemiologists and Public Health Experts Implore,” Press Release - Epidemiologists and Public Health Experts Implore Biden Administration to End Title 42 and Restart Asylum, September 30, 2021, https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/press-release-epidemiologists-and-public-health-experts-implore-biden-administration-end-title-42.

4. “A Guide to Title 42 Expulsions at the Border,” American Immigration Council, October 15, 2021, https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border.

5. “Press Release - Epidemiologists and Public Health Experts Implore”.

6. “Asylum in the United States,” American Immigration Council, February 26, 2021, https://www.americanimmigrationcouncil.org/research/asylum-united-states.

7. Camilo Montoya-Galvez, “Judge Rules U.S. Can't Expel Migrant Families Using Public Health Law,” CBS News (CBS Interactive, September 16, 2021), https://www.cbsnews.com/news/immigration-title-42-judge-expel-migrant-families-public-health-law/.

Bibliography:

Aguilera, Jasmine. “What Health Experts Say about Biden's Title 42 and Covid-19.” Time. Time, October 12, 2021. https://time.com/6105055/biden-title-42-covid-19/. 

“Asylum in the United States.” American Immigration Council, February 26, 2021. https://www.americanimmigrationcouncil.org/research/asylum-united-states. 

Castillo, Andrea, and Karen Garcia. “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight.” Los Angeles Times. Los Angeles Times, October 25, 2021. https://www.latimes.com/politics/story/2021-10-25/what-is-title-42-how-does-it-impact-us-border-immigration. 

“A Guide to Title 42 Expulsions at the Border.” American Immigration Council, October 15, 2021. https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border. 

Montoya-Galvez, Camilo. “Judge Rules U.S. Can't Expel Migrant Families Using Public Health Law.” CBS News. CBS Interactive, September 16, 2021. https://www.cbsnews.com/news/immigration-title-42-judge-expel-migrant-families-public-health-law/. 

“Press Release - Epidemiologists and Public Health Experts Implore.” Press Release - Epidemiologists and Public Health Experts Implore Biden Administration to End Title 42 and Restart Asylum, September 30, 2021. https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/press-release-epidemiologists-and-public-health-experts-implore-biden-administration-end-title-42.