What Should Free Speech Look Like on College Campuses?

By: Mollie Guba

Edited By: Alexandra Dickerman and micah sandy

Throughout U.S. history, Americans have placed immense cultural and political significance on freedom of speech, possibly more than any other civil liberty. Beyond the concrete protections granted by the First Amendment, freedom of speech also symbolizes core values in America’s history, such as the ability to openly express one’s opinions, discuss controversial ideas, and individually decide what to believe in. Free speech is an especially important value on college campuses, as it is crucial for students to be exposed to new ideas in college and, in turn, to be able to offer their own perspectives. However, this concept creates two conflicting visions of free speech on college campuses. One side of this debate argues that colleges should go no further than the First Amendment in restricting speech because of the need for free intellectual discourse on campuses, including the most controversial ideas. The opposing perspective, however, is that certain types of speech, particularly hate speech, do not represent a defensible expression of free speech but rather silence other voices through the harm they cause. At public universities, guidance regarding freedom of speech is relatively clear under the First Amendment, but at private universities, approaching this debate is complicated by their greater discretion in limiting speech beyond the restrictions accepted under the First Amendment. For example, while hate speech is protected by the First Amendment, it is commonly restricted at private universities, thus fueling much of the debate about free speech on college campuses. [1]

Despite the First Amendment’s protection of hate speech, there are forms of speech that are unprotected in any setting, including college campuses. The most relevant categories for the university environment include speech inciting violence or expressing a “true threat” against an individual or group, and the line between these forms of speech and hate speech can be somewhat blurred. [2] Hate speech can be understood to go no further than the expression of a harmful idea, although a common concern for private universities is that hate speech can quickly escalate into violence or threats, putting targeted students and their own rights to free speech at risk. To avoid this, many universities implemented speech codes against hate speech in the 1980s and 1990s, seeking to protect students from discrimination and harassment and to promote equal access to a positive educational experience. [3] While speech codes on college campuses do not look the same thirty years later, these goals remain largely consistent.

Today, many are expressing growing concerns about how limitations on speech can affect students’ abilities to express themselves and to hear a diverse range of opinions. The decision to invite controversial guest speakers to colleges has become one of the most common points of conflict regarding free speech on campuses. Avoiding these speakers entirely would significantly reduce the range of opinions students are exposed to and would quickly raise questions of how to objectively define “controversial.” However, some schools take on the risk of inviting speakers they know will create tensions, which sometimes even amount to a threat to safety. An often-cited example of this occurred at UC Berkeley in 2017 when right-wing political commentator Milo Yiannopoulos was invited to speak at an event. [4] Over 1,500 students gathered to protest the event nonviolently, but the protest took a violent turn when about 150 protestors from outside the UC Berkeley community arrived. [5] This group caused over $100,000 of property damage on campus, including some from fires deliberately set near the campus bookstore. [6] Clearly, hosting speakers with extreme opinions can have deep and potentially damaging effects on schools in some cases, showing the difficult balance schools must strike between the risks of restricting a free exchange of ideas and harming the campus community.

Since the First Amendment does not apply to private universities, most decisions that shape the extent of on-campus free speech are at universities' discretion, creating a divide regarding how schools should use this discretion. On one side is the view that universities should primarily heed the spirit of the First Amendment in decisions such as which guest speakers to host. [7] This argument emphasizes that a core purpose of college is to engage with different points of view, even those that some might find offensive, and that limits on free speech are difficult to justify except in the extreme cases accepted under the First Amendment. In the debate surrounding controversial guest speakers, though, concerns about limiting speaker choices do not pertain to silencing the individual speaker but fostering a culture that silences unpopular opinions. If the range of views given a platform at universities is limited, this can send the message to students that their own free expression will be met with hostility. We can all likely agree that students should feel comfortable expressing their views, so a slippery slope of free speech restrictions is a definite concern whenever the spectrum of permissible opinions is narrowed on campuses. Many also argue that silencing hate speech is an intrinsically wrong approach to promoting tolerance and dismantling discriminatory ideas. [8] That is, being unable to openly confront harmful ideas will not actually eliminate intolerant viewpoints but will merely leave them unchallenged. 

In response, however, others claim that arguments in favor of broad permissions for free speech give undue value to views that do not actually contribute to productive debate on campus. [9] Under this view, supporting hateful ideas with the traditional arguments for freedom of speech essentially misrepresents the meaning of free speech. Highly controversial speakers such as Milo Yiannopoulos, for example, are said by some to not be contributing any substantive ideas to campus discussions that warrant protection as intellectual discourse and, instead, only express hateful ideas that give a voice to others holding the same intolerant beliefs. [10] This highlights one of the major disagreements regarding universities’ approach to controversial guest speakers: whether giving a platform to hate speech will be productive long-term through friction with more tolerant ideas or will fuel further intolerance by giving hate speech an audience. Adding to these concerns around the potential ramifications of hosting speakers with extreme views is the potential for harm that could interfere with a student’s education or, according to some, amount to harassment. [11] Students in groups targeted by hate speech will naturally be affected emotionally by this experience, so giving voice to such potentially harmful speech creates worries of an unequal educational experience for targeted groups.

To summarize, what makes debates about free speech at private universities challenging is that they do not generally pertain to how these schools legally can address free speech but rather concern what the right approach within schools’ extensive discretion is. At public universities bound by the First Amendment, schools have far more defined guidelines and precedents to operate within, thus clarifying their obligations to freedom of speech and its corresponding restrictions. At private universities, however, many questions regarding conflicting considerations in issues of free speech persist. For example, would avoiding controversial choices for guest speakers set a problematic precedent of silencing unpopular views, or would certain speech create too much harm to offer any value to the campus community? Would directly engaging with offensive ideas through open discussion be the more effective approach for colleges, or would giving voice to these ideas only perpetuate hateful views? While the right balance of these elements is debatable, students and university leaders must ultimately work together to foster an educational environment where students can both freely express themselves and feel safe on their campuses instead of one where these values exist in conflict.

NOTES:

1. “Unprotected Speech Synopsis.” Foundation for Individual Rights and Expression, Accessed November 30, 2022, https://www.thefire.org/research-learn/unprotected-speech-synopsis. 

2. “Unprotected Speech Synopsis.” Foundation for Individual Rights and Expression, Accessed November 30, 2022, https://www.thefire.org/research-learn/unprotected-speech-synopsis. 

3. David L. Hudson, Jr., and Lata Nott, “Hate Speech & Campus Speech Codes.” Freedom Forum Institute, March 2017, https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-on-public-college-campuses-overview/hate-speech-campus-speech-codes/. 

4. Terri Mock, “The Cost of Controversial Speakers on College Campuses.” Rave Mobile Safety, March 28, 2019, https://www.ravemobilesafety.com/blog/cost-controversial-speakers-college-campuses/. 

5. Public Affairs, UC Berkeley, “Milo Yiannopoulos Event Canceled After Violence Erupts.” Berkeley News, University of California Berkeley, February 1, 2017, https://news.berkeley.edu/2017/02/01/yiannopoulos-event-canceled/. 

6. Terri Mock, “The Cost of Controversial Speakers on College Campuses.” Rave Mobile Safety, March 28, 2019, https://www.ravemobilesafety.com/blog/cost-controversial-speakers-college-campuses/. 

7. Erwin Chemerinsky, “Hate Speech is Protected Free Speech, Even on College Campuses.” Vox, Voxmedia, December 26, 2017, https://www.vox.com/the-big-idea/2017/10/25/16524832/campus-free-speech-first-amendment-protest. 

8. Pablo Delcan, “America Has a Free Speech Problem.” The New York Times, March 18, 2022, https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html. 

9. Katy Steinmetz, “Milo Yiannopoulos Finally Spoke at Berkeley. But the Protesters Were Louder.” TIME, September 24, 2017, https://time.com/4955245/milo-yiannopoulos-berkeley-free-speech-week/. 

10. Terri Mock, “The Cost of Controversial Speakers on College Campuses.” Rave Mobile Safety, March 28, 2019, https://www.ravemobilesafety.com/blog/cost-controversial-speakers-college-campuses/. 

11. Terri Mock, “The Cost of Controversial Speakers on College Campuses.” Rave Mobile Safety, March 28, 2019, https://www.ravemobilesafety.com/blog/cost-controversial-speakers-college-campuses/.

BIBLIOGRAPHY:

Chemerinsky, Erwin. “Hate Speech is Protected Free Speech, Even on College Campuses.” Vox, Voxmedia, December 26, 2017. https://www.vox.com/the-big-idea/2017/10/25/16524832/campus-free-speech-first-amendment-protest.

Delcan, Pablo. “America Has a Free Speech Problem.” The New York Times, March 18, 2022. https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html. 

Hudson, David L., Jr., and Lata Nott. “Hate Speech & Campus Speech Codes.” Freedom Forum Institute, March 2017. https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-on-public-college-campuses-overview/hate-speech-campus-speech-codes/. 

Mock, Terri. “The Cost of Controversial Speakers on College Campuses.” Rave Mobile Safety, March 28, 2019. https://www.ravemobilesafety.com/blog/cost-controversial-speakers-college-campuses/. 

Public Affairs, UC Berkeley. “Milo Yiannopoulos Event Canceled After Violence Erupts.” Berkeley News, University of California Berkeley, February 1, 2017. https://news.berkeley.edu/2017/02/01/yiannopoulos-event-canceled/. 

Steinmetz, Katy. “Milo Yiannopoulos Finally Spoke at Berkeley. But the Protesters Were Louder.” TIME, September 24, 2017. https://time.com/4955245/milo-yiannopoulos-berkeley-free-speech-week/. 

“Unprotected Speech Synopsis.” Foundation for Individual Rights and Expression. https://www.thefire.org/research-learn/unprotected-speech-synopsis.

Religious Beliefs and Discrimination: an analysis of 303 Creative LLC. v Elenis

By: Isabel Machlab

Edited By: Clark Mahoney and william tong

In summer 2012, Charlie Craig and Dave Mullins entered Masterpiece Cakeshop in Lakewood, Colorado, looking for a cake for their upcoming wedding.[1] There, they met the owner and baker, Jack Phillips, who told them that he didn’t make wedding cakes for same-sex weddings because of his religious beliefs. He explained that he would sell them other baked goods for other events, but not for a same-sex wedding. The couple filed a complaint against the bakery to the Colorado Civil Rights Commission for violating the Colorado Anti-Discrimination Act (CADA), a law that prohibits discrimination by interprises that provide goods to the public.[2][3] The Commission ordered the case to be heard by a state Administrative Law Judge. The judge ruled in favor of the couple, and the ruling was upheld by the Commission and the Colorado Court of Appeals.

When the Supreme Court of the United States accepted the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018) for an official hearing, many people expected the outcome to dictate the government’s stance on the debate between protecting same-sex marriages and protecting the rights of religious individuals.[4] In fact, Justice Kennedy stated that the case brought  to question two important and oftentimes conflicting topics. He wrote, “the first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion.”

The court, avoiding the debate, ruled that the Commission did not apply the First Amendment in a just manner. During the initial hearings, members of the state Civil Rights Commission contended that religious beliefs can’t exist in the public – an assertion that is inconsistent with the First Amendment's protection of religion. Justice Kennedy cited “hostility” toward religion that discredited the ruling as a whole. In the end, the court reversed the decision of the Colorado Court of Appeals and ordered that “the outcomes of cases like this in other circumstances must await further elaboration in the courts.”

On December 5, the US Supreme Court began to revisit very similar topics that were on the table during the 2018 case. Although the case is slightly different, the same Colorado law is being looked at. This case, 303 Creative LLC v. Elenis, asks many of the same questions that were asked during Masterpiece Cakeshop v. Colorado Civil Rights Commission.

303 Creative LLC is a service that provides marketing and website design services to businesses and individuals.[5] The founder, Lorie Smith, is a devout Christian who does not support same-sex marriages. In 2016, she wanted to post a message on her company’s website informing customers that she wouldn’t provide website services for same-sex weddings because of her religious beliefs. Publishing such a message is illegal under CADA, so 303 Creative filed a pre-enforcement challenge arguing that CADA is unconstitutional.[6][7] The court opinion explains:

“Appellants alleged a variety of constitutional violations, including that CADA’s Accommodation Clause and Communication Clause violated the Free Speech and Free Exercise Clauses of the First Amendment, and that CADA’s Communication Clause violated the Due Process Clause of the Fourteenth Amendment because it was facially overbroad and vague.” 

Both of these cases ask, “Does a business have a constitutional right to discriminate based on its owner’s beliefs?” [8] The second case, however, is different because it questions the constitutionality of a law that protects against discrimination – more specifically discrimination on the basis of sexual orientation.

Another question that this raises – one that has been raised time and time again – is a question regarding contradicting rights. In these two cases, both plaintiffs felt that their religious rights were being taken away. The way in which they want to exercise their religious beliefs, however, strips LGBTQ+ customers of their own protected rights. It boils down to the idea that the identity of one American is contradictory to the religious belief of another. So, should the government be able to protect the right to exercise a religious belief if that exertion violates the constitutional right of another?  Furthermore, does the government have the legal and moral responsibility to prevent discrimination based on religion, and when – if ever – would that violate the first amendment right to freedom of religion?

When the Supreme Court heard Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, they did not make a ruling that answered these questions. Because the Supreme Court accepted 303 Creative LLC v. Elenis – a case that looks at similar questions – it is possible that there will be a more definitive answer. Additionally, the Supreme Court has more conservative justices today than in 2018. All in all, with a larger majority and the court's acceptance of a case that is nearly identical to the one heard four years ago, it is likely that we will see a ruling that gives an answer to the questions at hand.

If the Supreme Court’s decision sets precedent, it will have a resonating effect across the country. There are currently many efforts to strip away rights from LGBTQ+ Americans. According to the Human Rights Campaign, there have been “more than 300 anti-LGBTQ+ bills introduced in states across the country.”[9] Twenty-three states have introduced these bills, and thirteen have signed them into law. Although this decision won’t hold binding legal precedent on many of these bills, it will signal what values define the current court and what values are being upheld in the American legal system today.

NOTES:

1. Masterpiece Cakeshop, LTD., Et Al. v. Colorado Civil Rights Commission Et Al. 584 U.S. 4 2018

2. “About Us | Colorado Civil Rights Division.” Accessed November 8, 2022. 

3. One Colorado. “Discrimination.” Accessed November 8, 2022. https://one-colorado.org/lgbtq-resources/anti-discrimination-laws-colorado/.

4. “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” Liptak, The New York Times, June 4, 2018, sec. U.S. 

5. “303 Creative – 303 Creative.” Accessed November 8, 2022. https://303creative.com/.

6. 303 Creative LLC v. Elenis, 19-1413, 2021 D.C. No. 1:16-CV-02372-MSK-CBS

7. “Supreme Court Report: 303 Creative LLC v. Elenis, 21-476,” Schweitzer

8. “Not a Masterpiece: The Supreme Court’s Decision in Masterpiece Cakeshop v. Colorado Civil Rights Commision,” Chemerinsky

9. “United Against Hate – Flighting Back on State Legislative Attacks on LGBTQ+ People,” Human Rights Campaign

BIBLIOGRAPHY:

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018), 59.

“303 Creative – 303 Creative.” Accessed November 8, 2022. https://303creative.com/.

“About Us | Colorado Civil Rights Division.” Accessed November 8, 2022. https://ccrd.colorado.gov/about-us.

Hasan, Zayn. “Supreme Court Report: 303 Creative LLC v. Elenis, 21-476.” National Association of Attorneys General, March 9, 2022. https://www.naag.org/attorney-general-journal/supreme-court-report-303-creative-llc-v-elenis-21-476/.

Human Rights Campaign. “The State Legislative Attack On LGBTQ+ People.” Accessed November 8, 2022. https://www.hrc.org/campaigns/the-state-legislative-attack-on-lgbtq-people.

Liptak, Adam. “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” The New York Times, June 4, 2018, sec. U.S. https://www.nytimes.com/2018/06/04/us/politics/supreme-court-sides-with-baker-who-turned-away-gay-couple.html.

“Not a Masterpiece: The Supreme Court’s Decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.” Accessed November 8, 2022. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/not-a-masterpiece/.

One Colorado. “Discrimination.” Accessed November 8, 2022. https://one-colorado.org/lgbtq-resources/anti-discrimination-laws-colorado/.

Wolpert, Christopher M. “UNITED STATES COURT OF APPEALS July 26, 202,” n.d., 103.

The True Cost of Arbitration in the Workplace

By: Kate Drum

Edited By: Maayan Abouzaglo and Christine Mao

In the past few decades, the usage of mandatory arbitration agreements has become exceedingly prevalent in the workplace. The agreements, which are a part of employment contracts, require an employee to consent to the process of having a third-party arbitrator settle workplace disputes. Through these agreements, employees are legally bound to resolve disputes through a third-party alternative to the traditional judicial system. [1] Employers typically hire third-party private firms to provide arbitration because the legal process is more expedited and more cost-effective than a court trial. Given that the employees waive their rights to a trial, however, the usage of mandatory arbitration has drawn a significant amount of attention and criticism since its rise. In fact, in 2022, the House of Representatives passed the Force Arbitration Injustice Repeal (FAIR) act,  which banned the usage of mandatory arbitration in the workplace. [2] Ultimately, these agreements violate an employee’s right to seek justice, may cause severe pragmatic harm to workers in the agreement process, and substantially limit the accountability of companies. 

The U.S. Constitution gives citizens the right to court trial by jury if they have been injured by another party. While courts are not perfect, they have checks and balances – , such as juries, judicial review, and an appeals process – to ensure civilians equal access to justice. Fundamentally, mandatory arbitration challenges core tenets of equity within the court system. At the most basic level, employees involved in arbitration have no rights to written records, discovery, or procedural transparency. [3] There is also no official judicial review or appeals process involved with mandatory arbitration. In addition, employees are not guaranteed an arbitrator who is trained or unbiased. With arbitration, employees are not able to file for group action suits, which deters a substantial portion of employees from bringing forward their concerns because of cost. In short, employees remain at a severe disadvantage compared to employers in the arbitration process. Specifically, this precedent is characterized by the notion that companies can have so much power over their employees that they are capable of violating and overriding the justice system. The precedent ensures an unequal distribution of power in the workplace and calls into question the validity of the judicial process. 

Aside from the principled damage mandatory arbitration causes to employees, opponents of the practice identify several practical implications of the process  as well. Specifically, employees tend to consistently lose to employers in mandatory arbitration suits. A study conducted by the California Law Review found that “employees only won about 20-30 percent of the time in  arbitration, as compared to 50 percent in state court.” [4] The cause of this discrepancy between win rates in arbitration cases, as opposed to the court system, can be explained by the innate power employers hold throughout the process. If an employer is responsible for paying for the arbitrator, as they are in virtually every case, the arbitrator or arbitration firm has a natural incentive to vote in favor of the employer. Not only does mandatory arbitration decrease the chances of employees winning their cases, but it also often leads to smaller award damages for employees. [5] The reality of these arbitration outcomes may deter employees from raising their concerns when faced with abusive and intolerable workplace environments because they believe there is no effective forum for hearing their complaints. 

The social implications of mandatory arbitration also extend beyond the individual level, impacting society writ large. Typically, nonfrivolous lawsuits against companies can drastically impact societal perceptions of the business. For instance, if a company is being convicted in a court of illegal activity or, specifically, mistreating its workers, the company may face a significant amount of negative backlash from the public. Such reactions have the power to decrease consumer investment in the company or its products. In this way, official lawsuits allow the public to hold companies accountable and, as a result, potentially incentivise organizations to act ethically and appropriately within the law. However, when all workplace disagreements, including particularly egregious cases of misconduct by companies, are kept out of public view and strictly behind closed doors, deleterious and toxic companies can continue to dominate markets and prosper in spite of their wrongdoing. 

While mandatory arbitration has several fundamental flaws, the practice is still widely popular. Proponents often claim that mandatory arbitration makes settling disputes more accessible to employees, given the typically high cost of solving problems through the court system. But even if the cost is lower with mandatory arbitration, if employees can scarcely access proper solutions and compensation for their problems, then the low cost of the practice is less relevant. Mandatory arbitration has and will continue to favor companies and corporations above individuals. The United States champions the notion that everyone and anyone must have access to a fair trial. But with mandatory arbitration continuing to grow and becoming increasingly prominent, all workers stand to lose both their rights and their cases.

NOTES:

[1] Colvin, Alexander J.S. “The Growing Use of Mandatory Arbitration: Access to the Courts Is

Now Barred for More than 60 Million American Workers.” Economic Policy Institute, 27 Sept.

2017, www.epi.org/publication/the-growing-use-of-mandatory-arbitration/.

[2] H.R.963 - 117th Congress (2021-2022): Fair Act of 2022.

www.congress.gov/bill/117th-congress/house-bill/963.

[3] Colvin, Alexander J.S. “The Growing Use of Mandatory Arbitration: Access to the Courts Is

Now Barred for More than 60 Million American Workers.” Economic Policy Institute, 27 Sept.

2017, www.epi.org/publication/the-growing-use-of-mandatory-arbitration/.

[4] Frankel, Alison. “Sweeping New Arbitration Study: 'Enterprising' Plaintiffs' Lawyers Adapt.”

Reuters, Thomson Reuters, 12 Sept. 2018,

www.reuters.com/article/us-otc-arbitration/sweeping-new-arbitration-study-enterprising-plaintiff

s-lawyers-adapt-idUSKCN1LS2YK.

[5] “Employer-Mandated Arbitration V. the Working Poor.” Georgetown Law,

www.law.georgetown.edu/poverty-journal/blog/employer-mandated-arbitration-v-the-working-p

oor/.

BIBLIOGRAPHY:

Congress.gov. "H.R.3239 - 116th Congress (2019-2020): Humanitarian Standards for Individuals in Customs and Border Protection Custody Act." July 25, 2019. https://www.congress.gov/bill/116th-congress/house-bill/3239.

Colvin, Alexander J.S. “The Growing Use of Mandatory Arbitration: Access to the Courts

Is Now Barred for More than 60 Million American Workers.” Economic Policy Institute,

27 Sept. 2017, www.epi.org/publication/the-growing-use-of-mandatory-arbitration/.

“Employer-Mandated Arbitration V. the Working Poor.” Georgetown Law,

www.law.georgetown.edu/poverty-journal/blog/employer-mandated-arbitration-v-the-work

ing-poor/.

Frankel, Alison. “Sweeping New Arbitration Study: 'Enterprising' Plaintiffs' Lawyers

Adapt.” Reuters, Thomson Reuters, 12 Sept. 2018,

www.reuters.com/article/us-otc-arbitration/sweeping-new-arbitration-study-enterprising-pl

aintiffs-lawyers-adapt-idUSKCN1LS2YK.

H.R.963 - 117th Congress (2021-2022): Fair Act of 2022.

www.congress.gov/bill/117th-congress/house-bill/963.

Decayed Detention Standards and Unfulfilled Legal Change

By: Sarah Wachs

Edited By: christine mao and william tong

Throughout the news and social media, it’s not difficult to find pictures of overcrowded cells with people of all ages lying on filth-covered floors. Over the past several years, people have watched as immigrants and refugees are left in the hands of the U.S. Immigration and Customs Enforcement (ICE), whisked away only to be put in cages and treated with little respect for basic rights. As California representative Anna Eshoo observes, immigrants are subjected to days and weeks of overcrowding and a complete lack of proper hygiene.[1] Similarly, the Department of Homeland Security’s Inspector General report revealed serious understaffing, inadequate mental health services, and a lack of clean, running water.[2] 

ICE has standards in place for detention centers to follow for the maintenance of suitable living conditions for immigrants; however, these standards are not often followed. As of 2019, ICE requires detention centers to have access to “appropriate medical, dental, and mental health care, including emergency services.” Detainees are meant to be issued clean clothing, linens, and personal hygiene items, and emergency capacity limits are supposed to be followed.[3] Despite these wide-coverage standards, there is clear evidence based upon images and investigations done by the Department of Homeland Security and others that ICE fails to maintain these standards in detention centers across the country. However, it is not only the public that recognizes these underservices: the immigrants themselves know just as well, and in their struggle, some have managed to bring their grievances to court.

In April 2020, just as the COVID-19 pandemic began to take rise, Faour Abdallah Fraihat brought a case against ICE, claiming that their COVID-19 regulations for detention centers reflected “deliberate indifference” and “reckless disregard” of the medical needs and health risks within these centers.[4] In his case, he aimed for a preliminary injunction that would force ICE to enforce stronger COVID-19 policies, but he ultimately lost.[5] Fraihat is not the only detainee coming to the courts; he is merely one of many whose concerns get overlooked by the judicial system. Rajinder Lehal had his claims of deliberate indifference dismissed against the detention center’s physician because he failed to provide significant evidence of unnecessary infliction of pain.[6] A former detainee, under the legal pseudonym John Roe, had his sexual assault claims against a guard in the detention system dismissed for putting forth a large amount of “shotgun” claims, in which numerous claims are placed forth in hopes that at least one will stick in court.[7] These men are among numerous immigrants whose claims are dismissed by the courts with hardly any consideration of the individual circumstances.

Amongst these cases, judicial restraint reigns strong. While the courts wield the power of judicial review and have the ability to interpret the law in new ways to set precedents that would change the future application of laws, they often shy away from this power in immigration cases. Instead, they take comfort in judicial restraint, meaning that they do not allow for new interpretations and hold an inflexible lens upon the law.[8] With judicial review often comes activism and change; with restraint they fall short of helping those who need said change. For Fraihat, Lehal, and Roe, the judges they faced failed to explore new avenues of the law in order to provide substantive justice when they were in need of such. Between refusing to hear someone’s case due to shotgun claims and upholding strict requirements on claims of indifference and neglect, detained immigrants are treated harshly under the current judicial system.

Policymakers and politicians have noted these issues and have attempted to push for legislation that would grant more support to immigrants and uphold humane standards within detention centers. As noted earlier, Congresswoman Anna Eshoo visited a detention center in Texas in 2019 and reported the conditions as a “humanitarian crisis” and called for reform for proper standards to be upheld. Numerous other legislators have taken action, through giving public statements, issuing letters urging ICE and DHS to shut down detention centers or enact changes within them to better protect detainees, and even drafting legislation to codify higher standards of safety for immigrants.[9]

The Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, introduced in the House of Representatives in June 2019, is a strong example of the urge from legislators to enact change on the behalf of detainees. The act proposed standards that would have increased clean water and hygiene standards, food and nutrition, and adequate shelter standards.[10] Notably, the act did not make it through the Senate, having been passed on to the Committee of the Judiciary in July 2019 with no further action.[11] While it was not passed into law, the thought still stands: legislators do want, and very much have the power, to promote change in the law governing immigrant detention.

However, no real change has been enacted recently on behalf of these immigrants. With the COVID-19 pandemic, the end of Donald Trump’s presidency, and the start of Joe Biden’s, there has been a lot of uncertainty in the United States, including for immigrants and refugees. While they are no longer facing threats of a border wall or mass deportation and xenophobia from the president, detention center conditions have not improved. While Biden set a promise of ending “prolonged” detention and even terminated contracts with two ICE detention centers in 2021, the number of immigrants sent to and remaining in detention centers has not dropped in accordance with this promise.[12]

With the government making no leeway on changes to detention, it is left in the hands of the people to push for it. Coming out of the midterm elections with a probable even split in the Senate and a Republican majority in the House means that pro-immigrant legislation will have a hard time finding passage, but there is no reason that an effort cannot be made to try. If the judiciary will not use judicial review to find some form of reprieve for detainees, then there needs to be legislation created in order to protect their right to a safe and clean shelter. Detained immigrants are deserving of basic human rights, and it is now up to the people to hold the government accountable if it is unable to provide these rights on their own volition. 

Note: Some content and findings are taken from my winter term paper for SOCIOL_101-6: Birthright Citizenship, “Detention, Decisions, and Making a Difference: Judges and Legislators’ Understanding of Detainment Law and Substantive Justice.”

NOTES:

1. “Eshoo Travels to Texas Detention Centers: ‘The Conditions Are Inhumane.’” Congresswoman Anna Eshoo, July 17, 2019. https://eshoo.house.gov/media/press-releases/eshoo-travels-texas-detention-centers-conditions-are-inhumane. 

2. U.S. Congress, House, Subcommittee on Oversight, Management, and Accountability. House Homeland Security Subcommittee on Oversight, Management and Accountability Holds Hearing on ICE Detention Facilities Oversight, 116th Cong., 1st sess., 2019.

3. “Detention Management.” U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, https://www.ice.gov/detain/detention-management.

4. Fraihat v. United States Immigration & Customs Enf’t, 16 F.4th 613, 2021

5. Fraihat v. U.S. Immigration & Customs Enf’t

6. Lehal v. Cent. Falls Det. Facility Corp., 2019 U.S. Dist. LEXIS 49477, 2019

7. Roe v. Johnson Cty., 2019 U.S. Dist. LEXIS 143705, 2019

8. “Judicial Restraint.” Ballotpedia. Accessed November 10, 2022. https://ballotpedia.org/Judicial_restraint. 

9. “Lofgren, Correa, CA Dems Urge DHS to Close Three ICE Detention Centers.” Congresswoman Zoe Lofgren, U.S. House of Representatives, 25 Oct. 2021, https://congressional-proquest-com.turing.library.northwestern.edu/congressional/docview/t63.d40.prcoshma21163g5?accountid=12861

10. U.S. Congress, House, Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, H.R. 3239, 116th Cong., 1st sess., introduced in House June 12, 2019.

11. Congress.gov. "H.R.3239 - 116th Congress (2019-2020): Humanitarian Standards for Individuals in Customs and Border Protection Custody Act." July 25, 2019. https://www.congress.gov/bill/116th-congress/house-bill/3239. 

12. Philip Marcelo, “Immigrant Detentions Soar despite Biden's Campaign Promises.” AP NEWS. Associated Press, August 5, 2021. https://apnews.com/article/joe-biden-health-immigration-coronavirus-pandemic-4d7427ff67d586a77487b7efec58e74d. 
    

BIBLIOGRAPHY:

Congress.gov. "H.R.3239 - 116th Congress (2019-2020): Humanitarian Standards for Individuals in Customs and Border Protection Custody Act." July 25, 2019. https://www.congress.gov/bill/116th-congress/house-bill/3239.

“Detention Management.” U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, https://www.ice.gov/detain/detention-management.

“Eshoo Travels to Texas Detention Centers: ‘The Conditions Are Inhumane.’” Congresswoman Anna Eshoo, July 17, 2019. https://eshoo.house.gov/media/press-releases/eshoo-travels-texas-detention-centers-conditions-are-inhumane.

Fraihat v. United States Immigration & Customs Enf’t, 16 F.4th 613 (2021)

“Judicial Restraint.” Ballotpedia. Accessed November 10, 2022. https://ballotpedia.org/Judicial_restraint.

Lehal v. Cent. Falls Det. Facility Corp., 2019 U.S. Dist. LEXIS 49477, 2019

Lofgren, Correa, “CA Dems Urge DHS to Close Three ICE Detention Centers.” Congresswoman Zoe Lofgren, U.S. House of Representatives, 25 Oct. 2021, https://congressional-proquest-com.turing.library.northwestern.edu/congressional/docview/t63.d40.prcoshma21163g5?accountid=12861

Marcelo, Philip. “Immigrant Detentions Soar despite Biden's Campaign Promises.” AP NEWS. Associated Press, August 5, 2021. https://apnews.com/article/joe-biden-health-immigration-coronavirus-pandemic-4d7427ff67d586a77487b7efec58e74d. 

Roe v. Johnson Cty., 2019 U.S. Dist. LEXIS 143705, 2019

U.S. Congress, House, Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, H.R. 3239, 116th Cong., 1st sess., introduced in House June 12, 2019.

U.S. Congress, House, Subcommittee on Oversight, Management, and Accountability. House Homeland Security Subcommittee on Oversight, Management and Accountability Holds Hearing on ICE Detention Facilities Oversight, 116th Cong., 1st sess., 2019.