The Baldy Center Blog

COVID and Prisons: Grappling with the Effects of the Pandemic on Incarceration

Blog Author: Alexandra Harrington,  Associate Professor; Director, Criminal Justice Advocacy Clinic, UB School of Law
Keywords: Covid, Covid-19, Coronavirus, Prisons, Quarantine, Social distancing, Pandemic, Health, Justice, Incarceration, Home confinement, Release, Punishment, Prison system, Remedies, Compassionate release.

In the last year, roughly 10% of the U.S. population has tested positive for COVID-19. In that same period, about 28% of people incarcerated in U.S. prisons tested positive for the virus. More than 2,500 incarcerated people have died of COVID-related causes. Trapped in congregate settings with little to no ability to socially distance or protect themselves from COVID, people in prisons are particularly vulnerable in the midst of a global pandemic. 

The vulnerability of the incarcerated population is a product of many factors, not least of which is, the inability to take the precautions we all have grown accustomed to over the past year. People in prison cannot choose to self-isolate or quarantine if they are concerned about catching the virus. They cannot stop others from coming into the spaces in which they sleep, eat, or bathe. They cannot control what PPE they obtain or how often the areas they share with dozens of other people are cleaned. They cannot access testing without the facility providing it to them. They cannot ensure they will see a doctor when they start to feel symptoms emerging. They cannot control how long they are medically isolated or quarantined nor in what conditions.

This vulnerability is compounded by the fact that incarcerated people are more likely than the general population to suffer from any number of serious or chronic medical conditions. These include conditions like obesity, high blood pressure, heart disease and asthma—all conditions that increase the risk of severe illness from COVID-19.   

One of the ways to address the vulnerability of incarcerated populations in the time of COVID has been the use of home confinement and compassionate release. Home confinement is the discretionary authority of prison officials to allow someone to serve the remainder of their sentence in the community. Compassionate release can actually reduce the sentence so the person is released on time-served. During the last year, decision-makers using both release mechanisms have considered applicants’ unique medical vulnerabilities and susceptibilities to severe illness throughout the pandemic.      

Since last April I’ve been part of a team litigating against a federal prison in Danbury, Connecticut over its response to COVID. In enforcing the settlement agreement in that case, the judge ruled that review for home confinement was not necessarily bound by typical sentencing considerations like the seriousness of the offense, the need for punishment, or the impact of the crime. Rather, the court decided, the releasing authority ought to balance the medical vulnerability of the individual against any danger the person poses to public safety. Taking traditional considerations of the nature of the offense off the table—except as they relate to public safety risk—places the focus uniquely on the individual and their future, their vulnerability and their risk, rather than on the crime and its consequences. While such focus has not always been executed in practice (many clients have been denied home confinement because of the seriousness of their crime) it does suggest an alternate method for determining how long people ought to spend in prison. It also raises the question: what happens when we return to the status quo? 

If we are able to safely release people who otherwise would have spent months or years more in prison, what does that say about the continued need to incarcerate? As people are reunited with their friends, parents, children, and other loved ones, as they return to work and their communities, do we learn anything about the utility and justice of long prison terms? 

Advocates have been urging a re-conception of policing, criminalization, and punishment long before COVID. But the lessons of COVID may contribute something powerful and concrete to those debates. They point a way forward that recognizes the humanity of people who have been sentenced to incarceration. 

It would be naïve to think that the pandemic has broadly or lastingly changed our system of punishment. When the world starts to return to “normal” the vast majority of people who were in prison at the beginning of the pandemic will remain there. Our prisons will not have emptied, and more people will continue to be sentenced to spend months, years, and decades behind bars. The home confinement and compassionate release measures that have been invoked during the pandemic are considered extraordinary remedies exercised during an extraordinary moment in time. Even now as vaccine availability increases and case numbers decrease in some areas, decisions to grant release are dwindling.

Yet, perhaps the return to normalcy need not mean a return to the status quo ante. Perhaps we could learn something from the ways in which we’ve considered incarceration differently in the past year. Perhaps some of the lessons from the pandemic might remain—about the inhumanity and dangerousness of prisons and about the ability to safely return people to their communities. Having learned during a crisis to rethink why and for how long people need to be incarcerated, we ought to reconsider, as life returns to normal, why we thought we needed to keep people in cages in the first place.   

Using Legal Rules to Reduce Income Inequality
Blog Author: Matthew Dimick,  Professor of Law, School of Law, University at Buffalo 

Keywords: Income, Income Inequality, Inequality, Wealth, Finance, Financial Crisis, Coronavirus, Political, Economic Consequence, Policy, Solutions, Tax, Redistribution, Rich, Poor, Labor-supply, America, Double Distortion, Free Market. 

The United States has experienced a disturbing expansion of income and wealth inequality in the past three or four decades. We only fully recognized this yawning divide in the material fortunes of Americans after the 2008 financial crisis, which did little to change the direction of the trend. The Coronavirus pandemic has only added fuel to the inequality fire in a particularly grave way. Income inequality might be condemned on its own terms and for its political (erosion of democracy) and economic (financial instability) consequences.

These worrisome trends in economic inequality have caused scholars to look for policy solutions. For legal scholars, in particular, the question arises: can legal rules do anything about income inequality? A long-standing position within law-and-economics scholarship gives a clear answer to this question: No. This answer finds its clearest expression in Louis Kaplow and Steven Shavell’s classic 1994 article, “Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income.”

In this article, Kaplow and Shavell argue that legal rules should be chosen only based on efficiency—making the economic “pie” bigger—and never based on distribution—how the economic “pie” is divided. The reason for this, Kaplow and Shavell explain, is the income tax can always redistribute income more efficiently—that is, with less waste—than can legal rules (which they understand as all legal rules other than those used in the income tax system).

For example, say we have an income tax rate on the rich of 30 percent and want to redistribute an additional 1 percent of income by adopting a tort rule that makes damages dependent on the defendant’s income. The damages a rich person will have to pay will be more than a poor person for an accident that otherwise causes the same harm. This rule has two effects. The effect on the income of the rich distorts labor-supply incentives just as a 1-percent increase in the tax rate would. But it also generates inefficiencies in the amount of care the rich take, which in this case spend too much time and resources on taking precautions against accidents.

As Kaplow and Shavell point out, this second distortion is pure waste. Rather than adopt a tort rule that redistributes an additional 1 percent of income, but with additional waste, we should instead simply increase the income tax rate by 1 percent. This will achieve the same amount of redistribution that the tort-damages rule does, and because it saves on resources, those savings can be used to reduce taxes on everyone or increase transfer payments to the poor. The switch from the tort rule to the income tax can make everyone better off. Despite using this particular example, Kaplow and Shavell claim that their insight is quite general. Any legal rule used to redistribute income will have two negative effects—a “double distortion,” it has been called—whereas the income tax will only have one.

A book that I am currently working on, The Law and Economics of Income Inequality, critically examines this and other arguments against using legal rules to redistribute income. One argument the book makes is that, while Kaplow and Shavell’s particular example may be right, their argument is not as general as they make it out to be. One reason for this is that using legal rules to redistribute income sometimes creates not two but three distortions, and this third distortion offsets rather than adds to the economic waste.

As an example, consider intellectual property law. Suppose we start from an efficient IP regime and want to change it to address income inequality, say by reducing patent length or narrowing patent scope. Such a change will have two effects. Reducing the monetary rewards of holding a patent will have the same effects on labor supply as a tax would. It will also distort the incentives to invest in R&D and other inventive activities.

So far, this tracks exactly Kaplow and Shavell’s objection. But there is a third distortion: reducing patent length or narrowing patent scope also increases product-market competition. More importantly, this distortion adds to rather than detracts from efficiency, so it moves in the opposite direction from the previous two distortions. Because of that offsetting effect, the new IP law can be more efficient—or, more accurately, less inefficient—than the income tax in redistributing income! Kaplow and Shavell’s argument fails to appreciate the existence of this third effect and its direction, so their claim is not as general and policy-relevant as they think it is.

There is a traditional and long-standing concern against intervening in the “free market,” whether for reasons of freedom, utility, or efficiency. Kaplow and Shavell’s double-distortion claim for using the income tax rather than legal rules to redistribute income is simply one of the more recent arguments in this enduring inclination. However, in confronting income inequality, we shouldn’t avoid using any tool available to address this important problem. My research suggests that legal rules can indeed be used to mitigate income inequality.

Reflections on the article, "Institutional Economics and Chock-Full Employment", by Charles J. Whalen, Baldy Center Research Fellow

Blog Author: Aldiama Anthony, J.D. Candidate 2021, University at Buffalo School of Law, President, UB Black Law Student Association

Article Author: Charles J. Whalen, Baldy Center Research Fellow

Keywords: Economy, Economics, Employment, Right to work, Progressive Capitalism, Unemployment, Government, Economic insecurity, Poverty, Financializations, COVID19, Economic recession, Discrimination, Advocacy

The “Right to Work” movement is a well-known guiding concept in the United States that affirms every American’s right to work for a living without being compelled to belong to a union and pay fees. However, the term, the right to work, originally referred to a progressive call for the right to employment. “For example, from the perspective of John R. Commons, the right to work included the right of the unemployed to have work furnished by the government.” For Commons, the right to work was a “logical outgrowth of Americans' constitutional rights to life and liberty.” (Whalen, 2019). (In 1899, Commons was fired from Syracuse University for his pro-worker stance; he later joined the faculty at the University of Wisconsin, where he and his students were instrumental in shaping pro-worker legislation for the state and the nation).

A study conducted by Baldy Center research fellow, Charles J. Whalen, “Institutional Economics and Chock-Full Employment: Reclaiming the “Right to Work” as a Cornerstone of Progressive Capitalism,” examines the calls for a job guarantee and then explains the need to reclaim the “right to work” as a cornerstone of progressive capitalism. Here are the critical takeaway points from Whelan's article:

America’s Economic Insecurity. 

Despite the positive statistical figures of the United States economy in 2009, including having a 2.3 percent real gross domestic product (GDP) rate, everyday Americans have a different view on America’s economy. In fact, Whalen notes that this view results from an “anxiety that stems from years of increasing economic insecurity.” Whalen’s study reveals that “[i]n the United States, about 40 million people—more than one in ten—live in poverty, 18.5 million in extreme poverty, and 5.3 million in “Third World conditions” of absolute poverty.” (Whalen, 2019).

Financialization.

According to Gerald Epstein, financialization involves “the increasing role of financial motives, financial markets, financial actors, and financial institutions in the operation of the domestic and international economies.” Despite signs of a strong economy prior to the COVID-19 pandemic, as noted above, America’s economic insecurity is owed to financialization processes that have shaped the economy and have pressured businesses to maximize shareholder value at workers’ expense since the early 1980s. (Whalen and his mentor Hyman Minsky have been closely studying financialization—which they call “money manager capitalism”—and its link to worker insecurity since the 1990s.)

The Problem of Unemployment.

According to Whalen’s study, the concept of unemployment is assessed in at least six complicated varieties. These varieties include:

• Frictional: First-time job seekers who seek employment with the assumption that jobs are available to meet their qualifications;
• Seasonal: Workers in fields with regular sluggish periods such as agriculture, construction, or tourism;
• Casual:  Irregular employment and contingent employment experienced by freelancers and independent contractors;
• Cyclical: Periods of economic recession and overall decrease in business demand;
• Structural: Changes in occupational and skill requirements associated with developments such as technological innovation, the globalization of production, and the decline of obsolete industries. 
• Discrimination: Unemployment owing to discrimination, on the basis of sex, race, and age, etc. 

The Right to Work and The Promise of America.

According to Whalen, the right to work must be reclaimed as a progressive cause, synonymous to movements ending slavery, securing workers’ right to organize and bargain collectively, recognizing women’s right to vote, and ensuring civil rights for all.

However, and rightfully noted, advocating for the right to work is only one element in what needs to be a broader, comprehensive plan for policy reform. Whalen’s research goes even further by assessing specific steps that can be taken to promote the right to work. These include “expanding Social Security and Disability benefits; enacting paid family leave legislation; establishing a public healthcare option; introducing subsidiarity into macroeconomic policy; strengthening the right of workers to organize and bargain collectively; giving workers and other non-financial interests a voice in Federal Reserve policy making; discouraging corporate asset stripping by institutional investors; and encouraging companies to compete by treating their employees as a source of competitive advantage, not as a cost to be minimized.”

Canon, Anticanon, and Anti-canonization in Constitutional Law

Blog Author: Matthew Steilen, Professor, School of Law, University at Buffalo

Keywords: Constitutional Law, Anticanon, System of Race Slavery, Resolution, Slaves, Race Subordination, Anti-canonization, Students, Racial Injustice, Hope, Justice, Government, History, Law.

    A “canon” is a set of writings generally regarded as the most authoritative, important, or well-executed of their kind. When law teachers speak of a “canon,” they usually mean a standard set of cases that forms the basis of an acceptable curriculum in their field. We teach our subjects from the canon. In my field, Constitutional Law, its principal members include Marbury, Gibbons, McCulloch, Youngstown, and Brown.

    In an important article, Professor Jamal Greene identified a Constitutional Law “anticanon,” composed of cases regarded as the Supreme Court’s worst: Dred Scott, Plessy, Lochner, and Korematsu. He thought the anticanon posed a special problem for teachers of Constitutional Law. Unlike, say, English literature, in law we teach from the anticanon as well as from the canon. Since we are teaching “professional competence,” which in Constitutional Law consists in an ability to tell good from bad constitutional arguments, there is a temptation to explain the status of anticanonical opinions by identifying their argumentative defects. But the cases of the anticanon, it turns out, do not necessarily exhibit obvious “analytic errors.” Rather, Professor Greene argued, each case has earned its membership in the anticanon because of “the attitude the constitutional interpretive community takes toward the ethical propositions that the decision has come to represent.”

    Of course, attitudes change. Much of Professor Greene’s article was devoted to tracing the route of various cases into, and out of, the anticanon. There may be more than one interpretive community, as well. Different communities may have different attitudes about a case, and their relative status can affect the status of the case. In 2016, for example, a supporter of presidential candidate Donald Trump suggested on television that Korematsu could provide legal support for creating a “Muslim registry.” Publicly embracing the case may have just been “trolling,” or it may have been an effort to push the case out of the anticanon. (Notably, in Trump v. Hawaii, decided two years later, the Supreme Court appeared to disavow Korematsu, en route to upholding the President’s statutory power to exclude broad classes of individuals from entering the United States).

    Another source of change is in the attitudes of law teachers towards the Constitution itself. Over the last several decades a series of trenchant historical studies have exposed the depth of interconnection between the patriots of the American revolution and the system of race slavery that had developed in the colonies and in which some of the revolutionaries participated as plantation masters or agents. These slaver-patriots were frightened by judicial decisions like Somerset v. Stewart (1772), which held slavery unlawful under the law of England, and which some historians have described as provoking a firestorm in the American colonies. American efforts to ensure their “security of property” against English interference were really efforts, at least in part, to preserve human bondage. Other works have shown the agency of black men and women in seeking their own freedom, sometimes by joining the loyalist cause. One commentator recently suggested that the preservation of race slavery was the Revolution’s defining issue. The claim is controversial, but that the interests of a significant portion of America’s political elite were bound up with the slave system and that they retained these interests at the time of the Constitution’s framing are easy to prove. The text of the Constitution famously protects the slave trade from federal interference for 20 years, guarantees the return of escapees, and enhances the political influence of slave states by counting 3/5 of "all other persons,” alongside their free persons, in apportioning seats in the national legislature. But the interests of the elite in slavery were more than economic. Enslavement was intensely personal, and intimacy, fear, and violence were intertwined in the master-slave relationship. Professor Annette Gordon-Reed's painstaking studies, having finally made plain Thomas Jefferson’s relationship with his slave Sally Hemings, with whom he had a number of children, must now form an essential part of our understanding of the man. This important research, along with much else like it, seems finally to have registered in broader social attitudes. Among law teachers, at least, the liberal orthodoxy of Constitution- and framer-worship, born in America’s post-war, mid-century glow, appears to be over.

    As attitudes about the Constitution change, the very roles of the constitutional canon and anticanon seem to be changing as well. If, as was sometimes said of the Trump administration’s immigration policy, “the cruelty was the point”—if the Constitution was intended to entrench a slave system and the social practice of race subordination and violence that underwrote it, then Dred Scott looks much less like a painful aberration and more like a foundational principle. It may still trigger our revulsion, but it now acquires the claim to a central place in our class. To tell the story of American constitutional law, one should begin from Dred Scott, Plessy, and Korematsu. It is the cases of the anticanon, not the canon, that form the basis of an acceptable curriculum. That they do not contain any obvious “analytic errors” is now explainable and makes the revision easier to carry out. That the language of these opinions may be offensive, corrosive, injurious or even traumatic for students is essential and it cannot be ignored (remember, “the cruelty is the point”). In these ways, the anticanon becomes the canon. Where does this leave the old canon? The awkward errors in some of the canonical cases, such as Marbury, can now be openly admitted. They were products of a need to supply the pretext for judicial action. In other cases, like Brown, the failure of the Supreme Court to achieve its grand objectives looks grimly predictable. Brown’s prospects ultimately rested on the superficial, self-regarding integrationist impulses of what one journalist has called “nice white parents,” who eventually proved unwilling to share resources with black pupils and black teachers, or to cede control to black parents.

    I call this transformation the “anti-canonization” of Constitutional Law. What does it mean for the teaching and practice of Constitutional Law? In another article, Professor Greene described an attitude he called “constitutional optimism,” which he associated with the ideas of constitutional redemption, progress, and faith developed by other writers. The optimistic attitude had little concrete legal value, he thought, but it did give “constitutional support to political imagination.” Professor Greene suggested this kind of support might be necessary for constitutional government to survive.

    Does constitutional optimism require ignoring the anticanon? “Cancelling” it? Is optimism consistent with anti-canonization? How can we responsibly teach constitutional optimism? Is it possible to give the anticanon its due place in our curriculum, while teaching a version of Constitutional Law that inducts students into a practice of optimism, as may be necessary to sustain our system of limited government? I don’t think we know the answers to these questions, but I do think they are serious questions.

    How many doses of reality can we give our students? An unrelenting emphasis on the disappointments of the system will invite the students to draw a normative inference about the system itself. The point is not that our students are pessimistic or “fragile,” that they are unable to deal with disappointment in discovering the truth; this framing implies a need to develop their resistance to disappointment, a kind of mental toughness or “grit.” It may be, however, that what they need is not toughness, but reason for hope, and the energy and determination that feed on hope. The anticanon has an essential role to play in generating this response, as a stimulant for justice, and it has an essential pedagogical role to play in explaining the evolution of legal doctrine and the American constitutional system. But at too great a dosage it poisons, robbing students of the optimism and self-respect necessary to maintain the project of constitutional governance at all. How can a teacher invite young lawyers to participate in a system, to take ownership of it, to assert their position as leaders within it, to make their own great use of it, if their only view of the system is its exclusion and subordination of people like them?

IS DEMOCRACY POSSIBLE HERE?

Blog Author: James A. Gardner, SUNY Distinguished Professor; Bridget and Thomas Black Professor; Research Professor of Political Science, School of Law. This blog is Professor Gardner's personal reflection on "Is Democracy Possible Here?”

Keywords: Democracy, Politics, Federalism, Political History, Law, Elections, Votes, Constitution, Constitutionalism, Political Preference, President, Leadership, Policy, 2020 Election.

It has often been said of socialism that we don’t really know whether it works because it has never been tried, and because regimes that have called themselves socialist have in fact fallen far short of its ideals. Much the same might be said of democracy.

The United States by no means began as a democracy. The Framers, following the classical view, understood democracy as a kind of mob rule. Consistent with that view, Madison argued in Federalist 63 that the total exclusion of the people in their collective capacity from the structure of governance counted strongly in favor of the proposed constitution.

Public opinion, however, quickly evolved in a different direction. In the early nineteenth century, the American public largely discarded inherited forms of social and class deference, coming to believe that all white men were capable of good self-governance, and indeed that political virtue was far more likely to be found in the mass of ordinary people than in the political classes. From then on, the United States began a slow, meandering, often difficult journey toward a model of democracy that is inclusive and broadly responsive to public opinion. Following a hard-fought movement for voting rights and powerful interventions by the Supreme Court in the twentieth century, the country seemed to stand at the threshold of creating the conditions in which democracy might actually be given a try.

That journey appears now to have been abandoned. Americans in 2016 elected an authoritarian president who spent his four years in office viciously attacking and undermining the social and political norms on which democracy rests. In the end, he rejected democracy itself as intrinsically fraudulent, inciting his followers to attempt to subvert it altogether by open violence. Donald Trump, however, was as much a symptom as a cause of support for democracy among Americans that has been eroding for years. [1]

We seem to have arrived at a point where it may be reasonable to ask whether democracy is possible in the United States, indeed, whether it is even sensible as an aspiration. Much, of course, depends on what is meant by democracy. 

The most demanding conceptions of democracy are deliberative in nature; they conceive of law as binding only when it issues from a popular will formed through engaged public deliberation that is inclusive, fair, and respectful, and which strives to reach consensus based on reasons all can in principle accept. [2] The possibility of deliberation, however, presupposes the possibility of common ground, and it is unclear in the United States today whether any such common ground exists. The 2020 election suggests that half the country prefers inherited forms of liberal democracy, political equality, the rule of law, constitutionalism, pluralistic politics, human rights, and so forth, while another half prefers rule by a strongman on behalf of a true American volk, unconstrained by law or mediating and checking institutions. It is hard to see how these two groups could be capable of compromise at all, much less one that is grounded in a truly deliberative consensus rather than in purely instrumental realpolitik. 

A less demanding conception of democracy is aggregative. On this view, deliberation is unnecessary. All a system has to do to count as democratic is to provide citizens with an opportunity to express their individual preferences, aggregate those preferences, and generate public policies that maximize overall utility. However, one of the main problems with the American system of democracy is that it seems to do a terrible job of aggregating preferences. Many are excluded in one way or another from even expressing their preferences, and when they do, the system bundles them in such a way as to give insufficient weight to the preferences of popular majorities. In some cases, this is due to the minoritarian character of American institutions, such as the presidency and the Senate; in others, it seems due to an oversensitivity to majorities of dollars rather than majorities of votes, or the preferences that votes ostensibly represent.

A third and even less demanding conception of democracy is sociological: democracy is simply a social practice that pleases us, and requires no further justification; it is just what we do, and if it also turns out to be good on other grounds, so much the better. Unfortunately, even this longstanding social consensus seems to be coming apart in the United States: many now openly reject democracy, or any recognizable conception of it.

If even minimal versions of democracy are for the moment out of reach, where does that leave us? When agreement is impossible, the only realistic alternative is some kind of modus vivendi. Americans of vastly different views have worked out such arrangements before, but they have often been made on the backs of populations of color. Southerners won’t oppose improvements to democracy in the North provided Northerners don’t try to spread them to the South, and so on. Today, however, patience with these kinds of deals has justifiably been exhausted. 

The main difficulty at the moment appears to be reaching agreement on the basic rules of the game. Democrats, particularly in the party’s progressive wing, wish to continue to press forward toward a perfected democracy; Republicans, particularly those in its authoritarian wing, wish to move in the opposite direction altogether. It is difficult to imagine a pragmatic deal that would satisfy both sides or who would be thrown under the bus to achieve it. The right thing, of course, would be for Republicans still committed to democracy, if any remain, to throw their party’s authoritarians under the bus, but at present that seems to be beyond the willpower of the party’s leadership, and possibly its rank and file as well. Under these conditions, it seems that the likely outcome, at least in the short run, is continued, cautious circling by the combatants until their relative strength becomes clearer. Only then will they gain a better idea of what kinds of deals they can either impose . . . or must tolerate.

[1]       William D. Hicks, et al, Contemporary Views of Liberal Democracy and the 2016 Presidential Election, 54 PS: Political Science and Politics 33 (2021). 

[2]       E.g., John Rawls, Political Liberalism (1993); Joshua Cohen, Deliberation and Democratic Legitimacy, in The Good Polity: Normative Analysis of the State (Alan Hamlin & Philip Pettit, eds., 1989).

Aldiama Anthony reflects on the article "School definitely failed me, the system failed me": Identifying opportunities to impact educational outcomes for homeless and child welfare-involved youth.

Blog Author: Aldiama Anthony, J.D. Candidate 2021, University at Buffalo School of Law, President, UB Black Law Student Association

Keywords: Homeless, Youth, Education, Homelessness, Foster Care, Educational Outcomes, Cross-System, Welfare, Housing, Collaboration, Trauma-Informed Approach, Community.

When you hear the word "homeless," what exactly comes to mind? Most times, the term immediately conjures up an image of a single adult sleeping under a bridge, in a park, or a car. In fact, very few fully understand the growing crisis of homeless youth.

There is a significant body of research on educational outcomes for children and youth who experience homelessness and on outcomes for youth in foster care, yet little research that focuses on youth who have experienced all of these challenges. A study conducted by three Baldy Center research grant recipients, Annahita Ball, Elizabeth Bowen, and Annette Semanchin-Jones, “School definitely failed me, the system failed me,” takes a cross-system research approach to this critical, but rarely addressed social issue affecting youths in our society.

Their study builds on past research to better understand cross-system youths' experiences and identifies areas of opportunity across systems to improve educational outcomes for homeless and child welfare-involved youth. Specifically, the study addresses the potential protective factors and points of intervention that could lead to improved educational outcomes for cross-system youth, within the systems of child welfare, education, and housing services based on the youths' experiences. Here are some important takeaway points:

1. Legislative Acts alone are not enough. Educational setbacks and barriers to academic success represent a failure across the systems of child welfare, homeless services, and education collectively. Despite federal policies like the ‘Fostering Connections to Success and Increasing Adoption Act’ of 2008, and the ‘Every Student Succeeds Act’ of 2015, youth continue to experience negative outcomes.

2. Homelessness and child-welfare is not a race/gender-exclusive social issue. Research conducted in Buffalo, NY between July and November 2016 involved a sample of 20 young adults between the ages of 18 and 24 who had experienced involvement with child protection, homelessness, and educational difficulties before age 18. The individuals in the sample were diverse in terms of race, ethnicity, and sexual orientation, and all of the youth experienced some negative educational outcomes during their primary and secondary schooling.

3.Cross-systems youth suffer significantly. The negative impacts on youth in systems of child welfare, education, and housing services include high absenteeism, poor grades, repeating a grade, social-behavioral problems, dropping out of school, school mobility, discipline (including suspensions or expulsions), and difficulty with peers. The study results indicated that 70% of the study participants experienced five or more of these challenges and 90% experienced three or more. The research exposed the feelings of isolation, stigma, and lack of control that cross-systems youth struggle with daily. It also shed light on the several reasons these youth don’t trust the “systems” and the multiple negative consequences that impacted their life and education because of this distrust.

4. With every crisis comes opportunity. Study participants were able to articulate some key factors that they felt made a positive difference, or that could have helped them along the way along with the significant barriers noted. Several of these factors crossed multiple systems and highlighted potential opportunities for intervening and promoting positive educational outcomes. These included: 1) having an advocate; 2) using a trauma-informed approach, and 3) providing opportunities for normalizing experiences of childhood.

Ball, Bowen, and Semanchin-Jones’ research suggests an urgent need for strategies to improve cross-system collaboration and ensure that systems are more responsive to youth voices in order to improve educational outcomes for homeless and child welfare-involved youth.

RELATED LINKS

Article:  ELSEVIER, Children and Youth Services Review

Article Citation: Annette Semanchin Jones, Elizabeth Bowen, Annahita Ball, “School definitely failed me, the system failed me”: Identifying opportunities to impact educational outcomes for homeless and child welfare-involved youth, 91 Children and Youth Services Rev. 66-76 (2018).

Article Author Profile Pages:

• Annette Semanchin Jones  
• Elizabeth Bowen
• Annahita Ball 

Unintended Consequences: How the Publication Norm as a Tool of Compromise Reduces the Influence of Female and Minority Judges

Blog Author: Rachael K. Hinkle, JD, PhD, Associate Professor of Political Science, University at Buffalo, SUNY

Keywords: Political Power, Women, Minority, Minorities, Power, Diversity, Diverse, Decision-makers, Policy, Legal, Policy, Homogeneous Groups, Judge, Judicial, Opinions, Influence, Gender Equality, Homogeneous Panels, Gender Disparity.

Even when women and people of color achieve positions of political power, that does not guarantee they will be able to wield the same amount of influence as similarly-situated white men.  Institutional norms may combine with social constructions of difference to create a system in which power is distributed disproportionately. Such a pattern is evident in the U.S. Courts of Appeals. Benign procedural practices and laudable deliberative processes combine with divergent viewpoints generated by fundamentally different social experiences to create a system in which power is exercised unequally.  

Judges on the U.S. Courts of Appeals split their time between resolving important, policy-shaping cases and routine matters that do not have an impact on circuit law.   In order to keep up with an increasing number of overall appeals, yet still provide quality legal analysis, circuit courts developed the practice of designating some opinions as “unpublished.” Such opinions are not binding legal precedent.  As a result, they do not play a role in shaping policy.   Each case is resolved by a panel of three judges who also decide whether the opinion should be binding precedent (i.e., “published”) or not.  

A wide variety of research shows that diversity in decision-making groups produces both a wider range of ideas and more deliberation.  This dynamic can lead to higher quality policy outputs.  But the same patterns may also inadvertently depress the ability of diverse groups of judges to shape legal policy, resulting in law disproportionately crafted by homogeneous groups of judges.  More diverse decisionmaking groups tend to produce a wider range of perspectives. This can generate divergent viewpoints about a case and, thus, a need to compromise.  One way to compromise is to leave an opinion unpublished so that the judge unhappy with the result can be assured it will at least not shape the law of the circuit.  Consequently, cases where there is more likely to be disagreement among judges may also be more likely to result in unpublished opinions.  This, in turn, suggests that judicial diversity may be associated with lower levels of opinion publication and, thus, policy influence.

I use a comprehensive original dataset of dispositive circuit opinions from 2002 to 2012 to explore the correlation between publication and panel diversity.  Figure 1 illustrates that there is consistent evidence of demographic diversity depressing publication rates.  Overall, cases with homogeneous panels published 32% of their opinions while panels with race and gender diversity published only 21%.  Regression analysis accounting for a number of other case factors (including ideological diversity) confirms the important role of demographic diversity, but the publication gap is approximately 4-5%.  The circuit courts issued an average of nearly twenty thousand opinions per year.  Based on the frequency of diverse and homogenous panels from 2002 to 2012, the estimated diversity gap of 4-5% represents nearly 900 opinions annually issued by diverse panels that did not make law which would have if the panel in question was homogenous.  In short, federal law is shaped by homogeneous groups of judges to a greater degree than diverse groups of judges.  Nearly all homogenous panels in the dataset (98%) were composed of white men.  Not all federal circuit judges share the same policy-making power.  Even those women and people of color who make it to such a powerful position wield less influence than their white and male peers.

We welcome your comments.

Aldiama Anthony reflects on a study by Anya Bernstein, “Interpenetration of Powers: Channels and Obstacles for Populist Impulses”

Blog Author: Aldiama Anthony, J.D. Candidate 2021, University at Buffalo School of Law, President, UB Black Law Student Association

Keywords: Populism, Executive Power, Leaders, Administrative Devices, Political Systems, Decision-making, Power, Government, Democracies, Dictatorship, Political Identity, Populist Leader, Civil Servants, Agency, Political Institutions, Control, Governance, Administrators, Separation of Powers, Public Opinion, People.

When you hear the word "populism," in the context of executive power, what exactly comes to mind? Most times, the term immediately conjures up an image of individual leaders or we often think about a movement, usually in politics, in which a single politician claims to represent the sentiments of the people. Carl Schmitt provides a powerful description of a populist leader’s aspirations: “to successfully claim a unique and hyper-legitimate connection to the populace; [1] to not only head a unified executive but, ideally, to unify the entire government under the leader’s power.”

However, we often neglect the fact that our “individual leaders only accomplish things through administrative apparatuses that enable and support their power. The executive, after all, is a they, not an it; not an individual but an institution."

There is a significant body of research on the interpretation of powers, even more specifically, the executive power, yet little research that focuses on how administrators within that system understand their work and the conditions for its legitimacy. A study conducted by a Baldy Center research grant recipient, Anya Bernstein, “Interpenetration of Powers: Channels and Obstacles for Populist Impulses,” turns to political pragmatics focused on the people who actually populate the government by drawing on interviews with administrators in the government of two successful but quite different democracies – the United States and Taiwan.

The study explores the separation of powers consciousness, the political identity of those who govern, and the separation, interpretation, and executive consolidation of our Government. Here are some takeaway points:

1. What truly makes up a populist leader? The people. The idea that a single person can control the governmental apparatus of a populous nation is far from accurate. We must acknowledge the long-term and even recent employees. The political appointees and career civil servants. The people who take active steps to represent the mission, culture, or habits of their agency. These people are the true representation of the power within the state apparatus. Bernstein describes it best in her research, “[t]racking populist (or other) consolidation, then, necessarily involves looking to the complex of institutions and individuals who together create governance—not just at the person who claims to control them.”

2. How is power situated in our government? The interpenetration of powers in America remains static and separate. We operate in a divided government system where, “separate nodes bear different kinds of power, and interactions are limited and discouraged.” In fact, the separation of powers in the United States has long been a popular discussion. However, Bernstein’s research sheds light on the critical reality. “Arguments consonant with unitary executive theory present government branches not only as possessing different expertise and fulfilling different central functions. They also present each branch as jealously guarding its powers against the others’ incursions. On this view, America’s system discourages cooperation and coordination, instead assuming that each branch will amass as much power for itself as it can.”

3. How do administrators understand their work and describe the conditions for its legitimacy? American administrators tend to lean towards a rather rigid notion of separated powers. Too much interaction with those outside the executive is seen as a threat to the legitimacy of agency action. It is important to note however that this rigid notion is not necessarily harmful. According to Bernstein’s research, administrators expressed that too much interaction between Congress and the administration could potentially sully administrative decision-making, and while there is much respect for the input of the public through comments, a barrier is also created from being substantially influenced by such public opinion. The ideal of separated, antagonistic powers that underlies American administrators' descriptions of their work presents potentially hospitable channels for the flow of populist desires.

Bernstein’s research raises our awareness of the role of the executive as a populist but sheds light on the importance and influence of the administration. However, it also leaves the mind to linger on how the interpenetration of powers will affect our nation in 2021 and beyond. With the presidential election cycle the most spoken-of topic across the world today, Bernstein's research leaves a timely thought behind — how will the nation address the channels and obstacles for populist impulses in the future?

What are your thoughts?  We welcome your comments.

[1] CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 5 (George Schwab trans., MIT Press 1985) (1922).

Citation: Anya Bernstein, Interpenetration of Powers: Channels and Obstacles for Populist Impulses, 28 Wash. L. Rev. 461 (2019).
Article is here.

No Choice But “Yes”: Strategic Consent to Unwanted Sex

Blog Author: Laina Y. Bay-Cheng, MSW, PhD, University at Buffalo School of Social Work

Keywords: Activism, Advocacy, Community, Equality, Equity, Discrimination, Patriarchy, Interlocking System, Police Brutality, Inequality, Misogyny, Racism, Economic injustice, Oppression, Social Injustice, Sexuality, Sex, Unwanted Sex, Sexual Health Care, Marginalized young women, Interlocked sexism, Poverty, Adultism, Public policies, Social systems, Reformation.

One of the most widely-used comprehensive sex ed curricula in the U.S. is entitled, Making Proud Choices! Echoing this cheerleading (and imploring) sentiment is the sex ed program offered youth in Maryland’s juvenile justice and child welfare systems, Power Through Choices, which includes the lesson, Creating the Future You Want.

But is choosing really such a superhero power that it can leap structurally, materially, and ideologically entrenched – across systems and generations – misogyny*racism*economic injustice*age-based oppression in a single bound? This rhetoric may mean to be inspiring, but I see it as an insidious displacement of responsibility and an insulting simplification of young people’s lives and agency (Bay-Cheng, 2019).

In advocating for a Capabilities Approach to reckoning with social injustice, philosopher Martha Nussbaum warns against a being fooled by a “simulacrum of choice.” After all, as she points out:

Many women who have, in a sense, the “choice” to go to school simply cannot do so: the economic circumstances of their lives make this impossible. (Nussbaum, 2000, p. 227)

We could play a depressing game of Mad Libs with this sentence when it comes to young women’s sexualities, substituting “go to school” with any number of sexual or relational behaviors and “economic” with any number of social or structural conditions:

Many women who have, in a sense, the “choice” to [initiate or refuse sex / use condoms / get complete and confidential sexual health care / pursue, maintain, or end a relationship / etc.] simply cannot do so: the [economic / sociocultural / legal / geographic / familial / etc.] circumstances of their lives make this impossible.

The fallacy of choice is laid bare in the sexual lives of marginalized young women. I think about young women I’ve crossed paths with in clinical and research settings and their consent to unwanted sex.

• One high school student I worked with used to go home with her 30-year old manager, whom she described as pathetic but harmless, on nights when she was worried about her parents’ substance use and the usually ensuing violence between them or toward her (i.e., what she called “drama at home”).
• One young woman in college recalled staying in a relationship with an abusive boyfriend throughout high school, which she spent in foster care, and for the first several months of college while she made the transition to independent and undergraduate living. She explained how without family ties or other support, “he was kind of that stable thing for me at that point.”
• Another young woman, 16 and living in a group home, talked about her 20-year old boyfriend, who had a job, an apartment, and a car. As she anticipated aging out of the child welfare system, she saw living with him as her best option. But she also talked about how he wanted to have sex without condoms and in ways she didn’t enjoy. She usually consented because as she put it, “it isn’t the worst thing in life” and more to the point, “I can’t afford to lose him.”

These young women were not playing to the teen girl (stereo)type of making melodramatic declarations or impulsive decisions. Quite the opposite, they offered bald, plainly-stated assessments of their situations and limited options. Interlocked sexism, racism, poverty, and adultism had closed off almost all points of access to resources, leaving them few paths forward except through sexual relationships with men.

Consenting to unwanted sex, to unprotected sex, to sex with adult men to whom they were not attracted or with men who were abusive, may not top a list of “proud choices,” but it was the one available to them. Neither the envisioned ideals of enthusiastic, affirmative consent nor directly compelled, we need to recognize their consent as strategic.

Strategic consent was how these young women worked to “create the futures” they wanted: without family violence; with intellectual stimulation and career opportunities; with a sense of stability and home.

Contrary to sex ed’s magical thinking and individual injunctions about choice, Nussbaum (2000) argues,

[I]t is not sufficient to produce good internal states of readiness to act. It is also necessary to prepare the material and institutional environment so that people are actually able to function. (p. 235)

“Preparing the material and institutional environment” so that young women don’t have to consent strategically to unwanted sex means reforming public policies and social systems so that they have independent and direct access – unmediated by parents or partners – to resources in the present and prospects for the future.

We welcome your comments.

Citations

Laina Y. Bay-Cheng (2019) Agency Is Everywhere, but Agency Is Not Enough: A Conceptual Analysis of Young Women’s Sexual Agency, The Journal of Sex Research, 56:4-5, 462-474, DOI: 10.1080/00224499.2019.1578330.

Nussbaum, M. (2000). Women and Human Development: The Capabilities Approach (The Seeley Lectures). Cambridge: Cambridge University Press. DOI:10.1017/CBO9780511841286.

(Please note: Author-provided external links are subject to change.)

A Human Rights Perspective on Homelessness and COVID-19

Blog Authors: Elizabeth Bowen, PhD  and Nicole Capozziello, MSW. This blog represents the personal reflections of the authors.

Keywords: Human Rights, Pandemic, Homelessness, Health, Public Health, Housing, Incarceration, Activism, Advocacy, Community, Equality, Equity, Benefits, Discrimination, Inequality, Economic Hardship, Covid-19

Introduction: In the early days of the COVID-19 pandemic, experts warned of the unique and devastating havoc that the novel illness could wreak on people experiencing homelessness, an already vulnerable population. While reports thus far  suggest that neither the prevalence nor mortality of COVID-19 among people who are homeless has been as severe as feared, the pandemic has brought about opportunities to enact innovative and long overdue approaches to the issue of homelessness. Though there are compelling public health reasons for providing housing assistance and related services, we believe that there is more enduring value in reframing homelessness from a human rights perspective, ensuring housing to every American during the pandemic and beyond.

The concern. What factors make people experiencing homelessness particularly vulnerable to COVID-19 and its consequences? Among other reasons, homeless people have high rates of co-occurring health problems and generally poor health, and their living conditions are not conducive to quarantining or social distancing. These living circumstances include people who stay outdoors or in other places not intended for habitation, as well as people staying in shelters and those who couch-surf or “double up” with friends or family. Other factors have received less attention, such as the homeless-incarceration cycle as a cause of COVID-19 transmission risk. Formerly incarcerated people are almost 10  times as likely to be homeless than the general public, with some experiencing homelessness both prior to and following incarceration. Another aspect to consider is how shutdowns and other changes related to the pandemic have affected homeless people’s survival and ability to access services. Take, for example, public libraries: with many libraries closed or operating on reduced hours during the pandemic, homeless people have fewer safe places to go for both temporary shelter and to access information.

 The public health rationale. One can readily make a public health argument for helping people obtain housing as quickly as possible during a pandemic. Getting people housed in non-congregate setting helps protect individuals from COVID-19, and also reduces transmission risk for the larger communities within which unhoused people live and interact. Leaders in California used such reasoning in developing the Project Roomkey program, a statewide effort to help people experiencing homelessness obtain housing in hotel rooms, alongside other services. It should be noted, however, that this public health rationale developed well before the COVID-19 pandemic. Stakeholders ranging from housing advocates to managed care plans have long argued that “housing is healthcare.” Essentially, housing people not only leads to improved health, but also savings in the healthcare system overall. 

A human rights approach. Although the public health rationale for housing assistance has generated critical and laudable efforts to reduce homelessness, the continuing pervasiveness of homelessness in the United States, despite decades of research on homelessness and health, suggests that other rationales and strategies are also needed. The spotlight on homelessness in the context of the COVID-19 pandemic is an opportune time to restate that, per the Universal Declaration of Human Rights, housing is a human right. However, in the United States, housing is not considered an entitlement benefit, meaning that people in need can end up on wait lists or be denied benefits when funding for a housing assistance program runs out. As such, the Urban Institute estimates that only one in five U.S. households that is eligible for federal rental assistance actually receives it. One of the most critical things that the U.S. could do to protect housing as a human right would be to make housing assistance for low-income individuals and families an entitlement benefit, similar to the Supplemental Nutrition Assistance Program or Medicaid. This would ensure that all people who meet the eligibility criteria are entitled to receive the benefit. Just in 2019, Canada ensured that housing is indeed a human right, and codified it into law.

Homelessness will remain a problem well beyond the crisis of COVID-19. In fact, there is reason to fear that the economic hardships brought on by the pandemic will exacerbate homelessness, which has already been on the rise since 2016. Although making housing assistance an entitlement is not an easy policy change, it would be among the most powerful things the U.S. federal government could do to protect public health as well as recognize housing as a human right for all people.

We welcome your comments.

(Please note: External links as provided by the authors are subject to change.)

Unprecedented Times

Blog Author: Nadine Shaanta Murshid is an Associate Professor and Interim Associate Dean for Diversity, Equity, and Inclusion at the University at Buffalo School of Social Work. This blog is Professor Murshid’s personal reflection on Unprecedented Times.

Keywords: Activism, Advocacy, Community, Criminal Justice, Diversity, Equality, Equity, Discrimination, Colonialism, Neocolonialism, Racism, Patriarchy, Capitalism, Oppression, Interlocking System, Police Brutality, Inequality, Mass Incarceration, Covid-19

In my work, I focus on violence which is explicitly and implicitly embedded in patriarchy, racism, and capitalism. I hold institutions accountable as I analyze policies and procedures that produce the social problems that we see around us. Here are four thoughts I’d like to share.

1. 

There was a children’s song that we learned when we were, well, children. It went, O ma go ma, Onno kichur golpo bolo. ek je chilo raja rani onek holo. It’s a song with a cheery tune, much like a nursery rhyme. But if you paid attention to the words, they’d haunt you. Here is a translation:

O ma go ma
Bangla​ song written by Salil Chowdhury; translated into English by Nadine Shaanta Murshid.

          O mother, please tell me another story

          [I’ve had] Enough of ‘Once upon a time, there was a King and a Queen’

            Why don’t you tell me? 

            That the maid’s son in that other neighborhood

            Died, feverish and hungry.

            There are rows of big houses and cars around us.

            Tell me why,

            There are, still,

            So many people who sleep on sidewalks.

            Tell me why,

            Anjana was kicked out from school for not being able to pay tuition.


            Every time I ask

            You say,

            You’ll know when you grow up.

           Why don’t you tell me?

           Why do so many people beg on the streets?

           Why don’t you tell me?
 

           Why my two elder brothers sit idle at home, unemployed

            [Which makes no sense]

            Because they were good students?

When do we start developing political consciousness and relatedly, critical consciousness? When it is introduced to you, perhaps, even in the form of popular culture.

This song from the perspective of a child, asking about the violence of poverty cut deep when I was a child. I could automatically see the children who begged on the streets; see the public walls painted with the words: Bangladesh Bekar Party (Bekar means unemployed); see the inequality between domestic workers and those who employed them; see how under President Ershad’s autocratic regime no one had voice; how dissent was met with violence and extra-judicial killings. I remember my sporadic school attendance in 1990 at the height of the social movement to topple the dictatorship of Ershad. The movement consisted primarily of Dhaka University students along with civil society, academics, activists. Indeed, university students have always been at the forefront of bringing change in Bangladesh. This was true during the Language Movement in 1952 (when Bengalis in East Pakistan had to fight for their right to speak in Bangla), Bangladesh’s Liberation War in 1971, and it was true in 1990 when (electoral) democracy came to Bangladesh.

2. 

Now more than ever it is clear that “interlocking systems,” to use Patricia Collin Hills instructive term – colonialism, neocolonialism, racism, patriarchy, and capitalism -- come together to create oppression. Under global capitalism, all countries are connected, not least by the global supply chain (and the Internet, with some exceptions), which means, there is a possibility for the workers of the world to unite against the exploitation they experience.  The question is, why don’t they? And more importantly, who is stopping them – and how? 

3.

When I first started teaching in 2014, I had students who would say that we live in post-racial America. That racism no longer exists. Then Black Lives Matter happened in 2016, completely changing that narrative. I no longer hear about post racial anything. Not among aspiring social workers in my classroom, at any rate.

In 2020 Black Lives Matter opened peoples’ eyes to how racism is structurally produced. That movement, again, allowed for a shift in conversation not only about how racism manifests in our individual lives but also about how whiteness itself is a system of oppression. There are plenty of examples: Police brutality against Black and Brown bodies. Mass incarceration of Black people with support from the school to prison pipeline. The disparity in health outcomes between Black and other groups. The disproportionately high Covid-19 death rate among Black, Brown, Indigenous, and other people of color. 

Black and Brown scholars (Angela Davis, Audre Lorde, bell hooks, Eduardo Bonilla-Silva to name a few) have repeatedly called our attention to these issues for decades now but have been dismissed, treated as social pariahs, jailed, and silenced in one way or another at various points in time before being recognized for their contribution to our knowledge. My hope is: as we pave our way out of white supremacy, we will use their work to guide us.

These are not coincidences, but social engineering. BLM v. 2 is holding us all accountable. As they should.

4. 

These are unprecedented times, we are told. 

I agree. 

Not (only) because we are in the middle of a deadly pandemic. But because we are finally waking up to the idea that we have (implicitly) consented to the creation of the oppressive systems of this world, participated in them, and we are complicit in the violence that we see around us.

We have the power to dismantle these systems that produce violence. It is because we, the people, have power that racism, classism, ableism, sexism, heterosexism (and other forms of oppression) are used to create fissures between groups that may otherwise be connected, make solidarity impossible between various forms of “us” and “them.” 

We can no longer allow that to happen.

If political consciousness begins at a young age, then, these unprecedented times presents us with numerous conscious-awakening moments. Like children learning “O ma go,” we cannot just repeat the words of the songs; we must allow the words to haunt us in ways that turns our awakening to authentic actions for change.

“Aliens” on College Campuses: Immigrant and International Students’ Educational Opportunities and Challenges

Blog Authors: Jaekyung Lee, PhD, Graduate School of Education, and Namsook Kim, PhD, Department of Educational Leadership and Policy, University at Buffalo

Keywords: Immigrants, International Students, International, Education, Diversity, Higher education, Anti-immigration policies, Xenophobia, Inequality, Education Policy, Culture and Society, Academic Freedom, Advocacy, Covid-19, Immigration Policy, Visa, International, Resources

Quiz: We would like to start with a pop-up quiz. What is one of the common background characteristics of the following people (in categories 1 and 2 each)?

(1) Madeline Albright (Former US Secretary of State), Kamala Harris (US Senator, Vice President Candidate), Sergey Brin (Google Co-Founder)

(2) Kofi Annan (Former UN Secretary-General, Nobel Peace Laureate), Juan Manuel Santos (Former President of Columbia, Nobel Peace Laureate), Robin Yanhong Li (Baidu Co-Founder)

Answers: (1) immigrant background (they have foreign-born parents) and (2) international student (they studied in an American university) background. 

This example illustrates the power of both immigrant and international student groups who have potential—and an actual but unsung history—to make great contributions to the nation and the world. Both populations, who the US government labels and treats as “aliens” regardless of individual diversity, steadily increased their presence in the US over the past few decades, until the current government’s anti-immigration policy (e.g., ban on temporary work visas) and regulations on the entry of international students gave a blow to their demographic trends. Although many colleges and universities in the U.S. make efforts to become more diverse and inclusive, they fall short of meeting the need of immigrant and international students who have been often marginalized and alienated on college campuses. 

Our research project, supported by the AccessLex Institute, the Association for Institutional Research and the Baldy Center for Law & Social Policy, addresses those issues to provide new insights into the challenges and opportunities of immigrant and international students in 4-year colleges and universities. This work is based on transformative higher education and asset models, thus challenging conventional deficit views. Immigrant and international students, having achieved so much with relatively fewer resources and more barriers, can provide a national “model of strength" worth studying and emulating. Using the Beginning Postsecondary Students (BPS) Longitudinal Study’s nationally representative sample of 4-year college/university student data as well as interview case studies from a purposively sampled site, the study examined undergraduate students' learning gaps in terms of their college degree attainment and transition to career and graduate/professional education. 

First, we found mixed patterns of learning gaps among different immigrant and international student groups. The first-generation immigrant students showed disadvantages in terms of both educational and career attainment, whereas the second-generation immigrant students performed as well as the U.S. natives (third-generation and later). International students had both advantages and disadvantages as they excelled in college degree attainment and graduate/professional school enrollment but trailed in full-time job employment (at least in the U.S.). One common pattern among immigrant and international groups was that they are overrepresented in STEM fields and underrepresented in humanities and human service fields including education, social work, and law. This bias toward STEM fields may reflect cultural and language barriers that the students may internalize through the societal and educational systems. It is necessary to give them career advising and graduate/professional school mentoring that start early and continue throughout their higher education journeys. 

Second, we found that not only academic but also sociocultural collegiate experiences, for example, study abroad, co-op/internship, student teaching, research project, and leadership/volunteer work are the key predictors of college students’ persistence and degree completion as well as later career or graduate/professional education success. Specifically, we found that engagement in four or more such high-impact practices (HIPs) would help reach 70% chance of college success. The key to success was not a single impactful practice but the synergy of accumulation of student engagement in intersecting quality HIPs, leading to “turning points” and positive college outcomes. It is critical to re-engage marginalized or alienated groups of immigrant and international students in more integrated learning experiences including experiential and sociocultural learning opportunities, not just academic coursework required for their different college degrees. Intentional, committed action at the institutional level is vital to students’ transformative agency development and college success.

Lastly but not the least importantly, recent anti-immigration policies as well as xenophobia against certain ethnic groups during pandemic crisis have positioned immigrant and international students in unprecedented, societal environments where they feel unsafe, alienated, discriminated, and not valued as contributors to the society’s sociocultural, economic, and academic prosperity, when they are assets, indeed. The “Buy American, Hire American” policy does not help but hurts America by losing the exceptional pool of immigrant and international students whose diverse talents are needed in the national and global economy. It is our responsibility to raise awareness, educate ourselves and others, advocate for our societal assets, and construct new realities with action. Let’s work together to keep American Dream viable and inclusive of everyone who deserves it. 

We welcome your comments.

The Place of Norms in Separating Power

Blog Author: Matt Steilen, Professor of Law, School of Law, University at Buffalo

Keywords: Constitutional law, Norms, Law and Society, Legislation, Politics, Public policy, Government, Norms, Separation of powers, Judiciary, President, United States, History, Policy, Power, Political Culture, National identity.

One of the chief intellectual discoveries of the past four years has been the degree to which government rests on norms: on a shared sense of the proper way to go about the business of government. This is unsurprising for followers of the law and society movement, with which the Baldy Center is so closely associated. From the beginning, scholars of law and society have demonstrated the limits of formalism in explaining how the law actually works. One can think of the Trump presidency as finally demonstrating for the wider world of legal scholars, the essential role of shared understandings, legal culture, accepted practice, informal conventions, and customs in our separation of powers. The judge-made doctrine has changed only at the margins, and its major holdings remain intact, but the real meaning of separation of powers has been altered dramatically.

When we think of separation of powers, we usually think of judicial doctrines that are designed to keep each branch within its proper limits, but as the new focus on norms shows, separation of powers is also about how each branch works on its own. If a branch can’t do what it was formally designed to do because of a breakdown in norms, then there will be pressure for that function to appear elsewhere in the constitutional system. One can view the administrative state this way: in the nineteenth century, as Professor Blackhawk has shown, Congress could not carry out the administrative functions it was originally assigned through the petition process and through appropriations. [1] There was little sustained political will to try to make changes to keep those administrative functions in Congress. So, in 1946, the petition process was essentially eliminated and Congress’ administrative functions were transferred to the executive branch. 

It’s worth trying to generalize this account to see what other stories we could tell. One might offer a similar story about Congress’ foreign policy functions, many of which were transferred to the President in a series of delegations beginning in the 1930s and 40s concerning trade and the use of armed force. One could tell such a story about congressional control over and supervision of the government. Congress’ impeachment function has rarely if ever, worked on the presidency, because the hold of elites on the office was broken in the early 19^th century, and a party system was created to nominate presidential candidates whose parties divided precisely on the norms that should govern conduct in office. The impeachment function was replaced, in part, by judicial processes—criminal investigations, usually—whose scope was hemmed in by a variety of judicial doctrines, principally the doctrines of executive privilege and executive immunity. In recent years the doctrine of standing has been recruited to assist in limiting judicial processes to enforce the law against the President or high-ranking executive officials.

I wonder whether we could say the same thing of the legislative function, that is, of Congress’ power to make law by passing bills and submitting them to the President for signature. Just like Congress’ administrative functions, just like its foreign policy functions, just like its impeachment and oversight functions, the legislative function requires norms to work. If those norms are abandoned or prove unsustainable, then it will be impossible to use the legislative function to solve the problems that demand a national solution. The unemployment crisis triggered by the Coronavirus might fit here. Are the norms surrounding the legislative function breaking down? Recently an old article by John Murrin has been coming to mind, titled, "A Roof without Walls: The Dilemma of American National Identity." The basis thesis of that article, as I recall, was that there was not, at the time of the founding, a national political culture sufficient to sustain the operation of a robust national government. The American government was a roof without the walls of a shared culture to sustain it. What formed in its place was a veneration of the Constitution and the ongoing project of constitution-making. Today I am tempted to conclude that whatever shared, national political culture we were able to create has lapsed. Without any tissue connecting members of Congress, it seems unlikely for them to be able to work with one another in any of the ways necessary to sustain a successful exercise of the legislative function. A usable national legislative function is an accomplishment of political culture. Since we lack the culture necessary to sustain it, we should expect replacements to arise elsewhere in the system.
 

We welcome your comments.

[1] Blackhawk, Maggie, "Petitioning and the Making of the Administrative State" (2018). Faculty Scholarship at Penn Law. 1972.

Disability Segregation in an Age of Inclusion: Navigating Educational Pathways through Special Education Schools in Contemporary China

Blog Author: Jinting Wu, PhD, Assistant Professor, Department of Educational Leadership and Policy, University at Buffalo

Keywords: Educational Inequality, Disability, Child Disability, Education Policy, Inequality, Culture and Society, Segregation, Special needs, Marginalized populations, Urban studies, Discrimination, Inclusivity.

Across the globe, the impact of child disability on educational inequality has been relatively neglected. My current research focuses on the rising number of children with disabilities who grow up with stigma and bleak futures in China’s segregated special schools. By focusing on a uniquely marginalized population in a segregated educational setting, this research fills a compelling need to understand the intersection of disability and segregation – a dual marginality that continues to exist globally yet remains under-examined in educational, legal, and disability studies literature to date.

Children with special needs are by and large judged unfit in mainstream Chinese schools focused on high-performing test-takers and “high quality” future citizens. Since the early 2000s, the Chinese state has intensified efforts in building special education schools as a form of “bureaucratic benevolence.” There, rising numbers of children with special needs are removed from regular school peers, and grow up with stigma and bleak employment prospects. Chinese policymakers consider special schools a necessary evil to help China transition to a fully inclusive model. 

Globally, segregated placement continues to exist even in the most inclusive education systems. In today’s China, as elsewhere, the embrace of inclusive rhetoric has not led to the disappearance of special schools. One answer to this continued structural segregation is stigma. In China, bodily impairments have historically been perceived as disorder, and subject to derogatory vocabularies and moral condemnation. The state-driven goal of cultivating “high quality”citizens with optimal physical, mental, and educational attributes intensifies parental desires to bear healthy and competitive offspring. Meanwhile, popular eugenic thoughts privilege “normal” reproductive outcomes, leading to social stigma of child disability as a source of shame and blame. Many parents conceal their children’s conditions in order to enroll them into regular schools. Some eventually opt for special schools, after seeing their children turned away or treated poorly in regular schools.

In a society upholding an ableist vision of normal bodies and academic meritocracy, special schools are sites of precarious social identities where disability intersects with class, gender, culture, and state power to tell a unique story. Marginalized populations, such as migrant workers’ children, are often denied access to local public schools because of their non-urban household registration (hukou) and low socioeconomic status. Migrant children with disabilities encounter even greater odds in obtaining state educational services, an injustice stemming from the systematic discrimination and exclusion experienced by migrant populations in urban spaces. The general absence of migrant children in urban special schools is juxtaposed by the constant physical presence of mothers who quit jobs to become full-time caretakers for their children. The deep-rooted patriarchal and ableist ideologies define motherhood primarily in raising a healthy, academically talented child. Birthing a disabled child is considered bad karma, casting a shadow over the mother’s moral social standing. 

Disability is a profoundly relational category, as a society can handicap people with or without a disability. In China’s special schools, not only are children stigmatized, but also their close relations (adult guardians and teachers) who do not have a disability yet also experience forms of disablism. Special teachers, foot soldiers of disability education, occupy a paradoxical position in simultaneously holding the space of segregation while struggling for recognition, in both being stigmatized and praised as pioneers in child-centered pedagogies vis-a-vis teacher authoritarianism in regular schools. They play a crucial role in (re)defining disability and negotiating with state special education policies. 

It is important not to point fingers at disability segregation as a complete policy failure. Globalization has not produced a homogeneous “world culture” of special education, as each country has particular social, cultural and policy contexts that drive unique responses to the global inclusive trend. What is needed is serious research to understand the subjective experience of how grassroots agents make sense of segregation in day-to-day struggle, negotiation, and creativity. This research challenges the global inclusive rhetoric as “one size fits all” and illustrates special schools not as oppressive apparatus, but transient spaces of marginality and potentiality in today’s China. It contributes to a more expansive dialogue on special education beyond the inclusion-exclusion binary and sheds light on alternative realities to gain a situated, comparative, and diversified understanding of disability education in the global south.  

We welcome your comments.

Blog published August 18, 2020.

Taking on Stereotypes to Protect Fair and Affordable Housing Policies

• Robert Silverman, Professor, UB, Department of Urban and Regional Planning
• Kelly Patterson, Associate Professor, UB, School of Social Work
• Chihuangji Wang, Doctoral Student, UB, Department of Urban and Regional Planning

Our article, “Questioning Stereotypes about U.S. Site-Based Subsidized Housing” (forthcoming in the International Journal of Housing Markets and Analysis), grew out of work done with the support of a Baldy Center research grant. The research examined data for all public housing and other site-based subsidized properties in the U.S. in order to determine the veracity of long-standing stereotypes about these properties. 

Stereotypes about government subsidized housing have dominated public discourse since the early 1950s. In many respects, these stereotypes have penetrated debates about public policies designed to address the shortage of affordable housing and become a mainstay in American society. This is true when public housing is discussed, but also with respect to the spectrum of fair and affordable housing policy.

Today, these stereotypes have become ubiquitous. In their crudest expressions, government subsidized housing is portrayed as being composed of clusters of dilapidated, overcrowded high-rise buildings inhabited by welfare dependent black women and their children. These stereotypes are expressed in subtle and overtly ugly forms. Perhaps the most negative example of these stereotypes is the image of the welfare queen living in public housing, which has been used repeatedly to support arguments for the retrenchment of fair and affordable housing policies.

Notwithstanding the omnipresence of these stereotypes, there is scant empirical evidence to support them. For instance, our article shows that the typical government subsidized housing project is a low-rise development with fewer than 91 units, and more than 96% of government subsidized properties pass inspection. Moreover, we found that government subsidized properties provided safe and affordable housing to a diverse population of families, seniors and the disabled. Across that population most were dependent on social security and disability insurance, followed by about ¼ who were working poor families actively participating in the labor force. In fact, less than 6% of the households living in government subsidized housing identified welfare as their primary source of income. 

Despite these findings, stereotypes about government subsidized housing continue to drive public discourse. It is important to recognize that these stereotypes emerged during a moment in U.S. history when landmark legislation was passed to promote fair housing and desegregate other institutions like public schools. Stereotypes about government subsidized housing must be understood against that backdrop and as a component of a sustained backlash against civil rights in America. This backlash has hampered the implementation and enforcement of laws passed to make the U.S. a more just society. For instance, many of the policies adopted during the Great Society were short lived, losing their potency after a few short years or incrementally chipped away at by opponents to change over a longer historic arc. 

We have seen this pattern repeat itself with respect to other policies. For example, after a decade of development, HUD’s affirmatively furthering fair housing (AFFH) rule was suspended by the Trump Administration. This action blocked the implementation of the rule, and dismantled the databases and evaluation tools designed to allow communities to use evidence-based analysis to identify discriminatory housing patterns. 

In the absence of empirical evidence, stereotypes about government subsidized housing continue to be mobilized to block fair housing initiatives and derail affordable housing programs. This is visible at the local level today, and experienced by those who attend countless public meetings where not in my backyard (NIMBY) groups reference stereotypes in their efforts to deny minority families access to hosing and schools. In essence, stereotypes are mobilized to deny African Americans, Latinos and others access to the American dream. Equally troubling, these stereotypes are often the bedrock of resistance to public policy reforms at the local, state and national levels. They have even emerged in the subtext of the 2020 presidential election as the Trump campaign endeavors to instill fear in the suburbs.   

Our article was written to cast light on stereotypes about government subsidized housing. Dispelling these stereotypes and other myths about housing is an important component of efforts to advocate for policy reform and legal protections afforded to historically disadvantaged communities.  We encourage others to build on this work.

We welcome your comments.