Ecology of Prisons: How Environmental Justice Effects are Exacerbated in Prisons

By: Kunjal Bastola

edited by: Alexandra Dickerman and Alexandria Nagy

Prison ecology is a term used to describe the living conditions of prisoners as it relates to environmental and health issues. Many prisons are built on contaminated sites or landfills, creating detrimental living conditions for the inmates. Nearby contaminated sites often pollute the air and water of prisons, degrade sanitation levels, and expose inmates to harmful waste. Environmental justice already impacts low-income and Black, Indigenous, people of color (BIPOC) communities at a disproportionate rate, but in prisons, the effects are even more disastrous.[1] Because the current environment of prisons cultivates such a harmful environment for their inmates, the urgency of addressing prison ecology increases expediently with the worsening of environmental issues. 

A post published on the Prison Policy Initiative website in 2022 highlights, “one-third (32%) of state and federal prisons are located within 3 miles of federal Superfund sites, the most serious contaminated places requiring extensive cleanup.”[2] Additionally, according to the Environmental Protection Agency, a Superfund gives EPA the money and authority to clean up contaminated sites, highlighting the extent to which many of the sites that prisons sit on are considered to be the most contaminated places. [3] Essentially, the proximity of these prisons with contaminated waste sites exacerbates environmental justice effects for incarcerated people. 

Due to the government’s inaction surrounding this issue, prisoners have begun to protest their conditions. In 2018, lawyers from the Abolitionist Law Center filed a lawsuit against the Federal Bureau of Prisons on behalf of 21 federal prisoners across the country arguing against the proposed construction of a federal prison in Letcher Counter, Kentucky built on top of a former coal mine.[4] In 2022, another lawsuit was filed against the State of Alabama on behalf of prisoners at two Alabama prisons alleging that the state, along with the U.S. Department of Treasury, did not follow proper environmental processes, as outlined in the National Environmental Policy Act, before building two 4,000 bed “mega-prison” sites.[5] These are only a few of the issues regarding the hazardous living conditions of inmates that were brought to light through prisoner activism. 

With a lack of agency over their surroundings, prisoners are thrust into harmful environmental situations, which some argue constitutes “cruel and unusual punishment” as written in the Eighth Amendment.[6] The American Civil Liberties Union (ACLU), an organization that works to expand civil liberties, highlighted a few hazardous conditions, and cases that were tried, in which courts have found that the Eighth Amendment was violated in prisons, including the following: [7] 

• Defective plumbing (Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992)) [8] 

• Denial of adequate toilet facilities (Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir. 2004))[9]

• Deprivation of basic sanitation (Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006))[10]

• Lack of drinkable water (Hearns v. Terhune, 413 F.3d 1036, 1042-43 (9th Cir. 2005))[11]

• Exposure to human waste (Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir. 2004))[12]

The ACLU also notes instances in which courts decided that some of the above conditions in prisons did not constitute a violation of the Eighth Amendment. For instance, in Knop v. Johnson 977 F.2d 996, 1013 (6th Cir. 1992), the 6th Circuit ruled that the occasional use of non-flushable toilets did not violate the Eighth Amendment.[13] Also, in Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994), the 7th Circuit found that a 24-hour delay in providing requested hygiene supplies similarly did not violate the Amendment.[14] 

With environmental issues at stake all over the world, it is important to address those communities facing harmful environmental conditions. In prisons, living conditions for inmates reflect the dangers of neglecting a hazardous environment contributing to the detrimental lifestyles of a large population. As the government takes action to mitigate the adverse effects of environmental issues, it is important they also work to address those effects in prisons. 

Notes: 

1. “Investigation Reveals Environmental Dangers in America’s Toxic Prisons,” Equal Justice Initiative, July 16, 2017, Accessed December 13, 2023, https://eji.org/news/investigation-reveals-environmental-dangers-in-toxic-prisons/#:~:text=Nearly%20600%20federal%20and%20state,mile%20from%20the%20toxic%20site. 

2. Leah Wang, “Prisons Are a Daily Environmental Injustice,” Prison Policy Initiative, April 20, 2022, Accessed December 13, 2023, https://www.prisonpolicy.org/blog/2022/04/20/environmental_injustice/.

3. “Investigation Reveals Environmental Dangers in America’s Toxic Prisons,” Equal Justice Initiative, July 16, 2017, Accessed December 13, 2023, https://eji.org/news/investigation-reveals-environmental-dangers-in-toxic-prisons/#:~:text=Nearly%20600%20federal%20and%20state,mile%20from%20the%20toxic%20site.  

4. “What is Superfund?” Accessed December 13, 2023, https://www.epa.gov/superfund/what-superfund. 

5. Panagioti Tsolkas, “Prisoners File Unprecedented Environmental Lawsuit against Proposed Federal Prison in Kentucky,” Nation Inside, December 7, 2018, Accessed December 13, 2023,  https://nationinside.org/campaign/prison-ecology-project/posts/prisoners-file-unprecedented-environmental-lawsuit-against-proposed-federal-prison-in-kentucky/. 

6. Panagioti Tsolkas, “Alabama Prisoner File NEPA Lawsuit against New Prison Construction,” Nation Inside, July 11, 2022, Accessed December 13, 2023,  https://nationinside.org/campaign/prison-ecology-project/posts/alabama-prisoner-file-nepa-lawsuit-against-new-prison-construction/. 

7. “Know your rights: environmental hazards and toxic materials,” ACLU of Idaho, Accessed December 14, 2023, https://www.acluidaho.org/sites/default/files/wpsite/wp-content/uploads/2013/01/kyr_environmental_hazards_updated_apr10.pdf. 

8. “Know your rights: environmental hazards and toxic materials,” ACLU of Idaho, Accessed December 14, 2023, https://www.acluidaho.org/sites/default/files/wpsite/wp-content/uploads/2013/01/kyr_environmental_hazards_updated_apr10.pdf. 

9. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).

10. Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir. 2004).

11. Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006).

12.  Hearns v. Terhune, 413 F.3d 1036, 1042-43 (9th Cir. 2005). 

13.  Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir. 2004). 

14.  Knop v. Johnson 977 F.2d 996, 1013 (6th Cir. 1992). 

15.  Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994). 

Bibliography: 

“Investigation Reveals Environmental Dangers in America’s Toxic Prisons.” Equal Justice Initiative. July 16, 2017. Accessed December 13, 2023. https://eji.org/news/investigation-reveals-environmental-dangers-in-toxic-prisons/#:~:text=Nearly%20600%20federal%20and%20state,mile%20from%20the%20toxic%20site.  

“Know your rights: environmental hazards and toxic materials.” ACLU of Idaho. Accessed December 14, 2023. https://www.acluidaho.org/sites/default/files/wpsite/wp-content/uploads/2013/01/kyr_environmental_hazards_updated_apr10.pdf. 

Leah Wang. “Prisons Are a Daily Environmental Injustice.” Prison Policy Initiative. April 20, 2022. Accessed December 13, 2023. https://www.prisonpolicy.org/blog/2022/04/20/environmental_injustice/.   

Panagioti Tsolkas. “Alabama Prisoner File NEPA Lawsuit against New Prison Construction.” Nation Inside. July 11, 2022. Accessed December 13, 2023.  https://nationinside.org/campaign/prison-ecology-project/posts/alabama-prisoner-file-nepa-lawsuit-against-new-prison-construction/.  

Panagioti Tsolkas. “Prisoners File Unprecedented Environmental Lawsuit against Proposed Federal Prison in Kentucky.” Nation Inside. December 7, 2018. Accessed December 13, 2023.  https://nationinside.org/campaign/prison-ecology-project/posts/prisoners-file-unprecedented-environmental-lawsuit-against-proposed-federal-prison-in-kentucky/.  

“What is Superfund?” Accessed December 13, 2023.  https://www.epa.gov/superfund/what-superfund.  

DC Statehood: An Imperative Step to Ensure Fair Political Representation for All Americans

By: Eliana Aemro Selassie

Edited by: Anna Westfall and Isabel Gortner

“End taxation without representation”, the iconic slogan that marks license plates in the District of Columbia, is among many tokens of advocacy for DC statehood. DC’s lack of statehood has been a contentious issue for DC residents, who lack adequate political representation, and for Congress, where debates continue on the constitutionality of admitting DC as the 51st state of the United States. DC residents pay more taxes per capita than any other state and DC’s population of over 700,000 outnumbers the populations of states like Wyoming and Vermont, but DC residents do not have fair representation in Congress. [1] The United States is the only nation in the world with a representative democracy that also restricts voting rights for its residents. [1] Advocacy for DC statehood has grown in recent years, as part of an effort to achieve fair representation for DC residents and several arguments have been put forward by civil rights activists and pro-statehood politicians justifying statehood. “No taxation without representation” was one of the key premises of the American Revolution and a major rationale for American independence, marking voting rights as an essential component of being a resident of the United States. [2] This begs the question: if DC residents have all the responsibilities of citizens, specifically taxation, and if the District has a population that outnumbers that of other states, why shouldn’t DC residents receive statehood and adequate political representation?

DC’s classification as a district rather than a state restricts the voting rights of DC residents who only have minimal representation in Congress, with only one representative in the House and no senators. DC’s Congressional representative, Eleanor Holmes Norton, does not have voting power like traditional representatives do but instead can participate in congressional committees and weigh in on issues proposed in Congress. DC also has 2 “shadow senators,” Paul Strauss and Mike Brown, who are not considered official senators and have no voting power but can advocate on behalf of DC residents on political matters. [3] As a result, DC residents lack the same amount of political representation that residents of all 50 states do, without a voice on congressional issues and representatives in Congress who can vote to induce political changes. DC’s local government also differs considerably from most states, since it is responsible for the functions of both state and city governments. DC is governed by a mayor and a city council of 13 members with the capacity to create DC’s legal codes, unlike states that have a governor and a state congress. DC’s city council also operates its public school system and police force, simulating the functions of city governments. [3] 

Despite these autonomous aspects of DC’s government, DC is still subject to Congressional approval for many major political decisions in the district. Congress has immense authority over DC’s budget, under the Home Rule Act which allows Congress the right to “review and nullify” any legislation created by the DC government. [4] This has been restrictive to the DC government on several occasions. A notable example is Congress’ persistent efforts to limit DC’s capacity to control and tax cannabis markets, despite cannabis being legal in DC since 2014. [4] Congress also blocked needle exchange programs from 1998-2007, preventing the allocation of important funding to address the HIV/AIDs epidemic in DC. [5] Furthermore, during the COVID-19 pandemic, DC was denied $775 million in emergency funds under the Coronavirus Relief Fund. DC was treated as a territory instead of a state, restricting access to federal resources for DC residents. [4]

These examples present the impacts of a lack of statehood on not only DC’s healthcare system but also on the DC government’s jurisdiction and capacity to provide vital resources and funding to its constituents. DC’s lack of statehood became especially controversial concerning DC’s jurisdiction over deploying the National Guard, which is the responsibility of state governors and the president in the event of emergencies. This became apparent during the Black Lives Matter movement in 2020, when President Trump deployed the National Guard in DC in June 2020 to suppress peaceful Black Lives Matter rallies, which many DC residents viewed as an invasive measure. Furthermore, during the January 6th insurrection, DC Mayor Muriel Bowser was unable to call in the National Guard to repress insurrectionists because DC is not a state and has no governor, a measure that called  DC’s lack of statehood into question as a safety issue. [4]

DC’s absence of statehood has also been considered a civil rights issue given DC’s large black population. [6] DC’s population is 47% black, demonstrating how a lack of voting rights plays a key role in restricting the voting rights of black Americans. This is part of a larger phenomenon of black disenfranchisement since the average black person in the US only has 75% of the voting representation of the average white person. [7] A number of civil rights activists have attributed the continued restriction of voting rights to DC residents throughout DC’s history as part of the systemic withholding of rights for black people. [8] If DC was admitted as the 51st state, it would be the only state where black people are not a minority and would make up nearly half the population, marking a potentially instrumental measure to improving the conditions of black Americans through increased voter representation. 

Statehood is primarily opposed by members of the Republican Party since DC’s predominantly liberal population would likely ensure 2 more democratic senators in Congress if it were to receive statehood. This view has been upheld by a number of Republicans, most notably Senate Minority Leader Mitch McConnell, who said “With two more liberal senators, we cannot undo the damage they’ve done”. [9] Many Republican politicians have contested DC statehood, arguing that it necessitates a constitutional amendment and opposes the initial intentions of the Framers when they designated DC as the capital of the United States. [6] DC’s lack of voting rights started in Article 1 of the Constitution which allowed Congress to create a “federal capital district”, where the Framers failed to provide voting representation for DC residents. The District of Columbia Organic Act of 1801 later gave Congress “jurisdiction” over DC territory and limited voting rights for DC residents. [4] Opponents of DC statehood rely on constitutionalist thinking to strike down DC statehood. 

However, several legal experts co-signed a letter in 2021 to Congress upholding DC statehood. Lauren Tribe of Harvard Law School and Caroline Frederickson of Georgetown Law School argued that the Constitution allows for new states to be admitted to the union, a practice that was commonly used in the late 19th century to admit Western territories to the union. [6] The letter was part of a growing effort among legal scholars to justify the rationality and constitutionality of DC statehood, particularly as the DC Admission Act was being considered in Congress. The Washington DC Admission Act passed through the House in 2020 and 2021, a political measure that would admit DC as the 51st state of the US. [4]  Under the DC Admission Act, the capital would be defined with federal buildings like the White House, the Supreme Court, and the Capitol included under federal sovereignty, while the rest of DC is considered a state. The Act failed to pass through the Senate, illustrating continued efforts to prevent the establishment of DC as a state. [6] Despite this failure, the growing amount of scholarship justifying statehood illustrates the faults in the arguments of its opponents, providing more rationale for DC’s admission as the 51st state. 

The importance of voting rights has been consistently emphasized throughout the history of the United States and its position as a representative democracy, making DC statehood a necessity to ensure the voting rights and accurate representation of all Americans are actively upheld. Leah Litman at the University of Michigan Law School said, “The normative reason for [DC statehood] is democracy”, arguing that all citizens deserve the right to fair representation under the democratic ideals of the United States. [6] Furthermore, DC statehood poses potential risks to the accessibility of DC residents to federal resources and the DC government’s ability to govern without intervention from Congress. DC statehood is also a civil rights issue, where restricting access to voting rights for the people of DC is effectively an additional barrier to equal voting rights for black residents of the United States. Overall, DC statehood is a political necessity to ensure DC residents have fair representation and access to federal resources as well as to maintain the voting rights that have been characterized as integral to the United States and its democratic ideals.

Notes: 

1. Government of the District of Columbia. DC Statehood. n.d. “About DC Statehood.” Accessed January 30, 2024. https://statehood.dc.gov/page/about-dc-statehood. 

2. NCC Staff. 2022. “On this day: “No taxation without representation!” | Constitution Center.” The National Constitution Center, October 7, 2022. https://constitutioncenter.org/blog/no-taxation-without-representation. 

3. Schultz, Kyley. 2021. “What does the constitution say about DC statehood? House latest.” WUSA9, January 18, 2021. https://www.wusa9.com/article/news/verify/is-washington-dc-a-city-or-a-state-does-dc-have-a-governor-explainer-and-fact-check/65-1f276d84-9d06-425b-9bf8-fa0743d0f0d2.  

4. Efrati, Maya, Lauren Eisen, and Ram Subramanian. 2022. “DC Statehood Explained.” Brennan Center for Justice, March 18, 2022. https://www.brennancenter.org/our-work/research-reports/dc-statehood-explained. 

5. Hauslohner, Abigail. 2015. “Study: Needle-exchange program leads to big drop in D.C. HIV infections.” Washington Post, September 3, 2015. https://www.washingtonpost.com/local/dc-politics/study-needle-exchange-program-leads-to-big-drop-in-dc-hiv-infections/2015/09/02/ce383e14-51a5-11e5-9812-92d5948a40f8_story.html. 

6. Sargent, Greg. 24. “The campaign for D.C. statehood just got a big boost.” The Washington Post, May 2021, 24. https://www.washingtonpost.com/opinions/2021/05/24/dc-statehood-constitutional-letter/?next_url=https://www.washingtonpost.com/opinions/2021/05/24/dc-statehood-constitutional-letter/. 

7. Government of the District of Columbia. n.d. “Why Statehood for DC | statehood.” DC Statehood. Accessed January 30, 2024. https://statehood.dc.gov/page/why-statehood-dc. 

8. Sommers, Kyla. 2021. “Perspective | The battle against D.C. statehood is rooted in anti-Black racism.” Washington Post, March 22, 2021. https://www.washingtonpost.com/outlook/2021/03/22/battle-against-dc-statehood-is-rooted-anti-black-racism/. 

9. Forgey, Quint. 2020. “'We will stand our post': McConnell defends GOP Senate, urges against D.C. statehood.” Politico, August 28, 2020. https://www.politico.com/news/2020/08/27/mitch-mcconnell-rnc-speech-404006. 

Bibliography:

Efrati, Maya, Lauren Eisen, and Ram Subramanian. 2022. “DC Statehood Explained.” Brennan Center for Justice, March 18, 2022. https://www.brennancenter.org/our-work/research-reports/dc-statehood-explained.

Forgey, Quint. 2020. “'We will stand our post': McConnell defends GOP Senate, urges against D.C. statehood.” Politico, August 28, 2020. https://www.politico.com/news/2020/08/27/mitch-mcconnell-rnc-speech-404006.

Government of the District of Columbia. DC Statehood. n.d. “About DC Statehood.” Accessed January 30, 2024. https://statehood.dc.gov/page/about-dc-statehood.

Government of the District of Columbia. n.d. “Why Statehood for DC.” DC Statehood. Accessed January 30, 2024. https://statehood.dc.gov/page/why-statehood-dc.

Hauslohner, Abigail. 2015. “Study: Needle-exchange program leads to big drop in D.C. HIV infections.” Washington Post, September 3, 2015. https://www.washingtonpost.com/local/dc-politics/study-needle-exchange-program-leads-to-big-drop-in-dc-hiv-infections/2015/09/02/ce383e14-51a5-11e5-9812-92d5948a40f8_story.html.

NCC Staff. 2022. “On this day: “No taxation without representation!” | Constitution Center.” The National Constitution Center, October 7, 2022. https://constitutioncenter.org/blog/no-taxation-without-representation. 

Sargent, Greg. 24. “The campaign for D.C. statehood just got a big boost.” The Washington Post, May 2021, 24. https://www.washingtonpost.com/opinions/2021/05/24/dc-statehood-constitutional-letter/?next_url=https://www.washingtonpost.com/opinions/2021/05/24/dc-statehood-constitutional-letter/.  

Schultz, Kyley. 2021. “What does the constitution say about DC statehood? House latest.” WUSA9, January 18, 2021. https://www.wusa9.com/article/news/verify/is-washington-dc-a-city-or-a-state-does-dc-have-a-governor-explainer-and-fact-check/65-1f276d84-9d06-425b-9bf8-fa0743d0f0d2. 

Sommers, Kyla. 2021. “Perspective | The battle against D.C. statehood is rooted in anti-Black racism.” Washington Post, March 22, 2021. https://www.washingtonpost.com/outlook/2021/03/22/battle-against-dc-statehood-is-rooted-anti-black-racism/.

From Classmates to Inmates: the Harmful Presence of School Resource Officers

By: Samantha Powers

Edited by: Micah Sandy and Chloe Shah

For many students, schools are sites of enlightenment and promise. But for some, the public education system represents something much more sinister. Lack of resources, punitive instruction models, and disciplinary alternative schools all contribute to what scholars call the “school-to-prison pipeline.” [1] This is the phenomenon in which schools become points of entry into the criminal justice system. Students who often only need additional support are criminalized and surveilled from an early age. Evidence shows that the pipeline disproportionately affects disabled students and students of color. [Ibid]. Whereas the most privileged students enjoy instruction, support and mentorship that catapults them into their college careers, many others are stuck on a track leading to a never-ending cycle of incarceration and recidivism. When compulsory education returns such vastly disparate results among students, it becomes important to look into what the root of the problem could be. The rise of police presence in schools has blurred the lines between the walls of a school and the walls of a prison.

School resource officers are sworn law enforcement officials assigned to patrol public schools and carry out disciplinary procedures. As their presence grows across campuses, Congress has proposed new federal funding through the School Resource Officer Act of 2022. Legislators cite staff resources, mentorship, and localized safety plans as benefits of SRO programs in schools, [3] though the reality is that some SROs have never been trained to deal with youth. [4] This lack of training can lead to devastating consequences.

In May 2011, a 13-year-old boy was introduced to the criminal justice system after he was ousted from his classroom for feigned burping. After his teacher’s failed attempts to stop his disruptions, she called the school resource officer (SRO) for assistance. The SRO escorted the boy out of class and arrested him for disrupting the educational process under N.M. Stat. Ann. § 30-20-13(D). The officer then took the boy to the police car, handcuffed him, and drove him to the juvenile detention center. The 10th Circuit Court ruled that the officer was qualified, able, and legally protected to make this decision. [2] As Judge Neil Gorsuch expresses in his dissenting opinion, the legal system’s backing of this decision at every level shows that the severity of discipline in schools has gone too far. If a student can be arrested, handcuffed, and jailed for burping in class, it becomes evident that schools have become sites of punishment as opposed to learning and growth.

Many believe SROs help foster a positive relationship between students and police in which officers can act as counselors and mentors in addition to disciplinarians. But given the intimate nature of the school setting, this can be a double-edged sword: in such close quarters, SROs are free to conduct a level of surveillance that is otherwise unheard of for free citizens. At school, students are constantly being supervised by teachers and administrators, and security cameras ensure that any errant behavior will be recorded and dealt with. While some of these provisions are necessary to ensure safety and order in schools, SROs must be careful not to exploit their immense power of surveillance and punishment over students. Research shows SROs only serve to “intensify the use of suspension, expulsion, police referral, and arrest of students” — particularly Black students. [5] In addition, SROs are seen as providing “peace of mind” to parents concerned about school-related crime. In reality, while SROs may be able to deter students from smoking in bathrooms and skipping class, they are often powerless to stop the most dangerous school-related crimes: school shootings. When a gunman opened fire at Marjory Stoneman Douglas High School in Parkland, Florida in 2018 — killing 14 students and 3 teachers — SRO Scot Peterson stayed outside of the building. [6] Despite his training and his mission to serve and protect the vulnerable students in the school, he failed to save 17 lives. This case, and countless others like it, demonstrate that SROs are serving the wrong purposes in schools.

To solve the growing problem of schools becoming entryways into a life of punishment and recidivism, we need to implement measures of support for students. Empathetic counselors, passionate teachers, and engaged parents will always do more to ensure the safety and success of public school students while ensuring that each child receives an equitable educational experience.

Notes:

1. “What Is the School-to-Prison Pipeline?,” American Civil Liberties Union, accessed January 29, 2024, https://www.aclu.org/documents/what-school-prison-pipeline.

2. A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016)

3. School Resource Officer Act of 2022, H.R. 6712, 117th Congress. (2022).

4. “What Is the School-to-Prison Pipeline?,” American Civil Liberties Union, accessed January 29, 2024, https://www.aclu.org/documents/what-school-prison-pipeline.

5. Lucy C. Sorensen, Montserrat Avila Acosta, John Engberg, and Shawn D. Bushway. (2023). The Thin Blue Line in Schools: New Evidence on School-Based Policing Across the U.S.. (EdWorkingPaper: 21-476). Retrieved from Annenberg Institute at Brown University: https://doi.org/10.26300/heqx-rc69

6. Dakin Andone, Denise Royal, and Carlos Suarez, “Then-Parkland School Resource Officer Who Stayed Outside during Mass Shooting Found Not Guilty,” CNN, June 30, 2023, https://www.cnn.com/2023/06/29/us/scot-peterson-parkland-shooting-trial-thursday/index.html.

Bibliography:

Andone, Dakin, Denise Royal, and Carlos Suarez. “Then-Parkland School Resource Officer Who Stayed Outside during Mass Shooting Found Not Guilty.” CNN, June 30, 2023. https://www.cnn.com/2023/06/29/us/scot-peterson-parkland-shooting-trial-thursday/index.html. 

Sorensen, Acosta, Engberg, and Bushway. (2023). The Thin Blue Line in Schools: New Evidence on School-Based Policing Across the U.S.. (EdWorkingPaper: 21-476). Retrieved from Annenberg Institute at Brown University: https://doi.org/10.26300/heqx-rc69

“What Is the School-to-Prison Pipeline?” American Civil Liberties Union. Accessed January 29, 2024. https://www.aclu.org/documents/what-school-prison-pipeline. 

Lost Between the Lines: Addressing the Gaps in America’s Family and Medical Leave Policies

By: Alexandra Henriquez

Edited by: madison bruno and alex brunet

For over three decades, the Family and Medical Leave Act (FMLA) has played a key role in the American labor landscape, guaranteeing American families security in times of significant life changes and challenges. The FMLA was passed in 1993 “to promote the stability and economic security of families” and balance the needs of families’ needs with employers’ needs. [1] The FMLA guarantees any “eligible employee” 12 workweeks of unpaid leave for every 12 months in response to the following events: birth of a child, placement of an adopted child, serious familial or personal health conditions, or any qualifying exigency arising from their family members’s active duty in the Armed Forces. FMLA has a leave limit of 26 work weeks per 12 months. [2] While the act has made significant progress in the fight for labor rights, Americans have noticed its significant constraints over the past few years. 

First, the FMLA does not recognize part-time or temporary employees, employees of small businesses, or self-contracted individuals. The FMLA defines an “eligible employee” as “an employee who has been employed for at least 12 months by the employer and at least 1,250 hours of service with such employer during the previous 12-month period.” [3] The act also excludes any employee at a company with less than 50 employees within 75 miles of the worksite. These eligibility requirements particularly affect those in the newly popularized gig economy, including short-term employment like freelancers, self-contractors, ride-share drivers, delivery personnel, online platform workers, and temporary or part-time workers. As a result, a growing segment of the workforce finds itself without the protections offered by FMLA.

Additionally, although the FMLA ensures job security for employees, a major challenge for many Americans is the loss of income during this period. The FMLA mandates unpaid leave, meaning individuals do not receive their regular income during this period. For many American workers, especially those in lower income brackets or those dealing with costly health procedures, the loss of income during family or medical leave can be a significant financial burden. This gap in the FMLA means that, despite having the right to take leave, some employees may not be able to afford to do so, negating the intended benefits of the act.

Moving into 2024, many states have realized the importance and social benefits of supporting workers and their families’ physical and mental health regardless of employment type, implementing mandated paid family leave that extends to all. According to the Center for American Progress, 11 states enforce family and medical leave laws: California, Colorado, Connecticut, Delaware, Massachusetts, Maryland, New Jersey, New York, Oregon, Rhode Island, and Washington State, along with Washington, D.C. [4] These state laws protect private sector employees, and many cover state and local government employees as well. State-paid family and medical leave laws, for the most part, cover all workers, even those who are self-employed; participants can pay into a fund to make them eligible for paid leave benefits.

In early December of 2023, the Wisconsin Supreme Court held oral arguments to determine whether employers such as Amazon, which are instrumental in the gig economy, should be required to contribute to a fund for unemployed workers. [5] Central to this case is the question of whether gig economy participants qualify as employees. The outcome of this case could set a precedent regarding the contributions of major companies to paid leave funds for gig economy workers.

The federal government is also slowly progressing towards aligning with evolving state policies providing paid leave. In 2021, the House of Representatives passed the Build Back Better Act (H.R. 5376), part of which aimed to establish a permanent national paid leave program. However, the bill died in the Senate and was replaced with the Inflation Reduction Act, which was passed in August of 2022 without any provision for a paid leave program. [6] While the Build Better Act’s passage through the House acknowledges the growing need for a larger-scale approach to family and medical leave, the halted journey of the bill and its paid leave provision underscores the complexities and challenges in enacting such legislation at a federal level. These complexities encompass arguments surrounding the financial burden on small businesses and economic growth, requirements of substantial government funding, and the role of the federal government. The absence of a federal paid leave program in the Inflation Reduction Act leaves the responsibility of implementing paid leave policies largely to individual states, which has led to a patchwork of policies across the country, with some states offering comprehensive paid leave programs while others offer none. Despite this setback, the conversation around federal paid leave has gained considerable attention and support from Americans, state governments, and neighboring countries. 

Extending paid leave and including gig workers is to acknowledge the value of providing a social safety net and to acknowledge that our labor landscape is changing. The discussion on paid leave extends to the broader question of how we should adapt labor laws to the changing nature of work in the 21st century. As the workforce continues to evolve, with an increasing number of gig economy workers and changing family dynamics, the demand for a national paid leave policy will definitively remain a significant topic in labor policy discussions.

Notes:

1. Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, (1993).

2. Family and Medical Leave Act of 1993, 29 U.S.C. §  2611, (1993).

3. Family and Medical Leave Act of 1993, 29 U.S.C. §  2611, (1993).

4. Molly W. Williamson,  “The State of Paid Family and Medical Leave in the U.S. in 2023,” Center for American Progress, 5 Jan. 2023, https://www.americanprogress.org/article/the-state-of-paid-family-and-medical-leave-in-the-u-s-in-2023/.   

5. Shawn Johnson, “Wisconsin Supreme Court Hears Arguments in Case Involving ‘gig Workers,’ State Unemployment Fund,” Wisconsin Public Radio, 19 Dec. 2023, www.wpr.org/economy/wisconsin-supreme-court-hears-arguments-gig-workers-state-unemployment-fund.

6. H.R. 5376 (117th): Inflation Reduction Act of 2022. GovTrack, 19 Aug. 2022, https://www.govtrack.us/congress/bills/117/hr5376/summary. 

Bibliography:

Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, (1993).

Family and Medical Leave Act of 1993, 29 U.S.C. §  2611, (1993).

Family and Medical Leave Act of 1993, 29 U.S.C. §  2611, (1993).

H.R. 5376 (117th): Inflation Reduction Act of 2022, GovTrack, 19 Aug. 2022, https://www.govtrack.us/congress/bills/117/hr5376/summary. 

Johnson, Shawn. “Wisconsin Supreme Court Hears Arguments in Case Involving 'gig Workers,' State Unemployment Fund.” Wisconsin Public Radio, 19 Dec. 2023, www.wpr.org/economy/wisconsin-supreme-court-hears-arguments-gig-workers-state-unemployment-fund

Williamson, Molly W.  “The State of Paid Family and Medical Leave in the U.S. in 2023,” Center for American Progress, 5 January 2023,https://www.americanprogress.org/article/the-state-of-paid-family-and-medical-leave-in-the-u-s-in-2023/.