Protecting Vulnerable Voices: Reducing False Confessions from People with Mental Illness 

By Julia Rankin

Introduction

The issues of wrongful convictions and exonerations have gained popularity in the last few decades. The establishment of the Innocence Project,[1] as well as several media sensations such as Serial[2] and Making a Murderer,[3] have launched discussions of exonerations into the mainstream. After years of studying exonerations, scholars have identified a handful of factors that appear and reappear in wrongful conviction cases. Some of these common factors are eyewitness misidentifications, ineffective legal counsel, police and prosecutorial error and misconduct, unreliable jailhouse informants, faulty forensic science, and false confessions.[4] This paper will specifically examine false confessions, placing particular emphasis on people with mental illness who falsely confess. 

One such story is that of Victor Rosario. A jury convicted Victor, a man with mental illness, of murdering eight people based on his false confession to setting a three-story building on fire.[5] In March of 1982, a fire broke out in a building in Lowell, Massachusetts, killing three adults and five children.[6] Upon initial investigation, the responding firefighters concluded that the fire was the result of arson.[7] This conclusion came from the firefighter’s observations that the fire started from more than one location within the building and fire patterns indicating that a flammable liquid started the fire.[8] Law enforcement arrested Victor the next day after they learned that he was treated in the emergency room for deep cuts on his hands.[9] Detectives who were investigating the fire went to interview Victor at his apartment.[10] Victor stated that he was out drinking with a friend, Felix Garcia, and that they were returning to the apartment they shared when they saw a building on fire.[11] Victor broke several windows in an attempt to help, which resulted in the cuts on his hands.[12] After breaking the windows, he could hear children screaming from inside the building but was unable to get inside to help them.[13] Felix corroborated this story when the detectives interviewed him.[14]

Detectives took Victor to the police station and interrogated him.[15] Throughout the interrogation, Victor ended up giving three different statements with varying stories.[16] After the second statement, in which he implicated himself and Felix in committing the arson using a Molotov cocktail, Victor experienced a mental break and started sobbing.[17] For ten to twenty minutes, Victor was on his knees as he said “God, oh, God, oh, God, those kids….”[18]

A jury convicted Victor for the arson and murders.[19] The prosecution’s case relied on expert testimony which stated that the fire was the result of arson.[20] Another expert, a psychiatrist, testified for the prosecution and stated that Victor’s mental breakdown during the interrogation was an “emotional outburst…having to do with the nature of the circumstances, but not a mental illness.”[21] The defense relied on the lack of reliability in Victor’s statement rather than challenging the premise that he committed the crime.[22] Victor’s defense counsel also called an expert psychiatrist to testify.[23] The defense psychiatrist stated that Victor was not able to make a rational or intelligent statement to the police because he was psychotic.[24] The defense psychiatrist also stated that Victor told him, “I am Victor Rosario, the son of God. Jesus Christ is in me.”[25]

In 2014, Victor had a hearing regarding a motion for a new trial.[26] During the hearing, an arson expert, John Lentini, testified that the forensic science used to determine that the fire was the result of arson was outdated and debunked.[27] Lentini and Dr. Craig Beyler, a fire protection engineer, testified against the idea that a Molotov cocktail had started the fire.[28] Instead, Dr. Beyler testified that the building had been on fire for a while before anyone noticed and that the fire developed rapidly when Victor broke a window in an attempt to save the people inside.[29] This testimony, as well as other testimony, helped Victor obtain a ruling for a new trial.[30] However, before a new trial happened, the prosecution dismissed the charges against Victor and he has since been a free man.[31]

This story is just one of many that illustrates why people with mental illness are particularly vulnerable to coercive interrogation techniques, which results in a higher chance of eliciting a false confession from them. This paper analyzes the issues that cause these injustices and argues that Congress should enact legislation requiring federal and local law enforcement agencies to adopt protections for persons with mental illness when they are being interrogated. Section One  of this paper explores the current law and practices surrounding law enforcement interrogations. Section Two explains why people with mental illness are particularly vulnerable to giving false confessions. Section Three examines why it is important to ensure that persons with mental illness are allotted protection during interrogations. Section Four of this paper proposes regulatory reform solutions. Finally, Section Five analyzes any foreseen problems with the proposed reforms. 

I. Current Laws and Practices

A.  The Reid Technique 

The Reid Technique is a method of interrogation that was developed in 1947 by Fred Inbau, a law professor, and John Reid, a former detective.[32] The technique was created in hopes that it would be possible to discern when people are lying by observing physiological changes of a person while being questioned.[33] The Reid Technique was originally crafted to be used in interrogations against criminal suspects.[34] However, it has since expanded to being used in school systems and workplaces. In schools, the method has been used to elicit confessions from young students, oftentimes regarding instances of plagiarism and cheating.[35] In the workplace, loss prevention workers have used the method to draw out confessions from employees.[36] Now, the Reid Technique is used throughout the United States and around the world.[37]

The Reid Technique consists of three stages; the fact analysis stage, the behavior analysis interview stage, and the interrogation stage.[38] In the fact analysis stage, the investigator on the case at hand gathers and analyzes the facts related to the case to understand the case.[39] During the behavior analysis interview stage, the interrogator is recommended to use elements of the P.E.A.C.E. model[40] to gather the most information in a short amount of time.[41] The interrogator is also encouraged to ask “non-threatening” questions and observe the person’s behavior to determine if the person will be cooperative during the actual interrogation.[42] Finally, in the interrogation stage, the Reid Technique recommends that the interrogator use nine distinct steps during their interrogation: direct and positive confrontation, theme development, handling denials, overcoming objections, procurement and retention of a suspect’s attention, handling the suspect’s passive mood, presenting an alternative question, having the suspect orally relate various details of the offense, and converting an oral confession into a written confession.[43] Some of these steps, and other aspects of the Reid Technique, will be further discussed in section four of this paper. 

B.   Miranda Warnings 

The Fifth Amendment grants American citizens many protections within the criminal justice system, including the right to not incriminate oneself.[44] The United States Supreme Court solidified the importance of this right when they decided Miranda v. Arizona.[45]  As a result of Miranda, procedural safeguards were put in place to protect people while they are in the custody of law enforcement officers.[46] These safeguards include: warnings to the person being interrogated that they have the right to remain silent, that the statements they do say may be used against them as evidence in trial, and that they have the right to a retained or appointed attorney.[47] These warnings have been combined into a statement, known as a Miranda Warning, that must be read to an individual when in law enforcement custody and before interrogation.[48] Miranda Warnings are generally standard, with a few law enforcement offices adding a sentence or two to their script:[49]

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?[50]

After having their Miranda rights read to them, a person may still elect to waive the rights and speak to the police without an attorney present.[51] To waive their rights, a person must do so voluntarily, knowingly, and intelligently.[52]Whether someone has voluntarily, knowingly, and intelligently waived their Miranda rights rests on two things.[53]First, the court must determine whether the person in custody waived their rights voluntarily and not under coercion, intimidation, or deception.[54] Second, the waiver must be made after a law enforcement officer reads the person their rights and when they have a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.”[55] These two aspects are examined within the “totality of the circumstances surrounding the interrogation” to be properly determined.[56] The presence of a mental illness alone does not mean that a person is incapable of waiving their Miranda rights.[57] Typically, it is treated as a factor to consider, but not a dispositive element.[58]

Once a person has waived their Miranda rights, law enforcement may interrogate them and any statements that the person makes during the interrogation may be used as evidence against them.[59] However, Miranda rights are not just rights that can be waived. Some protections may be invoked before or during an interrogation. A person may invoke their Miranda rights at any point before or during an interrogation.[60] Even if a person complies or volunteers statements to law enforcement, that does not prevent them from invoking their Miranda rights in the middle of an interrogation.[61] To invoke one’s right to remain silent, a person must make a statement, at any time before or during interrogation, that they want to remain silent.[62] To invoke one’s right to an attorney, the person must also be explicit and clear in their request for an attorney. In some jurisdictions, courts have been unreasonably stringent in their expectation of how clear a person’s request must be. The Louisiana Supreme Court refused to hear an appeal of whether a person saying “[i]f y’ all, this is how I feel, if y’ all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog[63] cause this is not what’s up” is a clear request for an attorney.[64] Justice Crichton concurred with the denial and stated that “[T]he defendant’s ambiguous and equivocal reference to a ‘lawyer dog’[65] does not constitute an invocation of counsel….”[66]

If a person invokes their right in this way in the middle of an interrogation, the questioning must stop there.[67] If a person wants to invoke their right to an attorney, they must affirmatively state that they want an attorney.[68] After they have indicated that they want an attorney, the interrogation must cease until an attorney is present.[69] After the attorney is present, there must be a meaningful opportunity to consult with the client before any further questioning occurs.[70] Further, the attorney may be present for the rest of the questioning.[71]

II. Why People With a Mental Illness Are More Susceptible to Giving False Confessions

People with mental illness are more susceptible to giving a false confession, compared to the general population, if they are interrogated by law enforcement. In 2022, the National Registry of Exonerations evaluated 3,060 exoneration cases.[73] One hundred seventy-four of the exonerees had a recorded mental illness or intellectual disability.[74] Of this population, 120 of them (sixty-nine percent) falsely confessed.[75] This percentage is in stark contrast with the 205 out of 2,886 (eight percent) of people with no recorded mental illness or intellectual disability who falsely confessed.[76]

There are many reasons for this vulnerability to a false confession, but this paper will focus on three reasons in particular: people with mental illness are more likely to have interactions with law enforcement; it is common for a person with mental illness to have a greater sensitivity to stress; and people with mental illness are often more susceptible to suggestion by the law enforcement officers that are interrogating them. 

A.  More Interactions With Law Enforcement

People with mental illness are disproportionately more likely to have interactions with law enforcement than the general population. In 2019, approximately 3,011 out of every 100,000 people (three percent) in the United States were arrested.[77] However, upwards of one in four people (twenty-five percent) with a mental illness have been arrested by law enforcement.[78] This increased likelihood of interaction can happen at any step in a criminal investigation and for several reasons. Part of these interactions is because, after the deinstitutionalization movement,[79] law enforcement officers have increasingly become the first, and sometimes the only, responders to someone in the middle of a mental health crisis.[80] It is estimated that one in five (twenty percent) 911 calls involve someone experiencing a mental health or substance abuse crisis.[81] Because law enforcement officers are oftentimes the first interaction a person with mental illness has with the criminal justice system, they are the ones to decide whether a person experiencing a mental health crisis will be diverted into a mental health treatment program or shuffled further into the criminal justice system. Twelve percent of individuals reportedly had law enforcement involved in their path to mental health services.[82]Oftentimes, this means that people with mental illness are also disproportionately shoved into the criminal justice system. 

The increasing criminalization of mental illness in the United States only serves to exacerbate the issue. Approximately thirty-seven percent of incarcerated individuals in state and federal prisons have a history of mental illness.[83] Of that thirty-seven percent, eight percent of incarcerated people with mental illness have an arrest that is directly attributable to the symptoms of their mental illness.[84] Minor offenses are often tied to behavior more prevalent in people with a mental illness, such as causing a disturbance, minor theft, or failure to appear in court.[85]These minor offenses add up and contribute to the vast number of people with mental illness being entangled in police interactions. Because people with mental illness are more likely to have interactions with law enforcement and are sometimes seen as suspects due to symptoms of their mental illness, they have more opportunities to be interrogated and therefore have more opportunities to give false confessions.

B.   Sensitivity to Stress and Other Emotions

Depending on their diagnosis, people with mental illness may experience more stress in an interrogation environment than a person without a mental illness. For example, people with Borderline Personality Disorder (BPD) often experience a “marked reactivity of mood,”[86] meaning that they experience intense moods that may seem disproportionate to the situation. They are also observed as being “very sensitive to environmental circumstances.”[87]These two factors, combined with their increased impulsivity,[88] can have disastrous results in an interrogation room. However, people with BPD are not the only ones in a disadvantaged position in the interrogation room.[89]

Heightened emotions, such as those experienced by people with various mental illnesses, affect a person’s ability to navigate an interrogation. The amount of stress a person experiences in an interrogation affects the likelihood that they produce a false confession in many ways. A person’s comprehension of their Miranda rights is inhibited when they are under severe stress, such as the stress often experienced in an interrogation room.[90] When a person does not fully comprehend their Miranda warnings, they may be more likely to waive them or not invoke them, which can cascade into a false confession. Almost half (forty-eight percent) of individuals surveyed, when asked to list reasons why they gave a false confession, listed police pressure, making police pressure the most common reason given.[91] When law enforcement officers place stress on a person with mental illness, the rate at which they conform to the pressure may be higher than that from people who do not have mental illness, due to their increased rate of stress. 

C.  Susceptibility to Suggestion

Interrogations place people under a particular type of susceptibility known as interrogative susceptibility, which refers to “the extent to which, within a closed interaction, people come to accept messages or information communicated during formal questioning as true, and as of a result of which their subsequent behavioral response is affected.”[92] Gísli Guðjónsson, a forensic psychologist and former detective, developed two scales that are used to measure a person’s susceptibility.[93] Research using these scales has shown that people with mental illness were more vulnerable than the general population to being misled or changing their responses when subjected to certain interrogation tactics such as minimization[94] and maximization[95].[96] Even courts have recognized that people with mental illness are more susceptible to coercive methods used by law enforcement and may change their answers to interrogative questions to make the interrogator happy rather than answer accurately.[97]

III. Reasons for Change

            There are many reasons why individuals with a mental illness should have further protection before, during, and after being interrogated by law enforcement. Issues such as the overrepresentation of the mentally ill population in the American criminal justice system, the overcrowding of correctional facilities, lack of trust in the American justice system, and basic human decency, will be detailed in this section.

A.   Overrepresentation of Mentally Ill Persons in the Criminal Justice System

The criminal justice system and the mental health system have been linked since the creation of the first psychiatric hospital in the United States, the Public Hospital for Persons of Insane and Disordered Minds in Williamsburg, Virginia, in 1773.[98] Virginia Lieutenant Governor Francis Fauquier stated, in his reasoning on why the hospital needed to be built, that he regularly jailed the mentally ill to protect the public.[99] This reasoning only shows how far back people have mistakenly linked criminality with mental illness.[100] This link has led to an overrepresentation of people with mental illness within the American criminal justice system.

As discussed in the second part of this paper, people with mental illness are more likely to have interactions with law enforcement and are more likely to be characterized as suspects in investigations. This disproportionality continues after a person with mental illness has been taken into custody. Not only are people with mental illness less likely to make bail, but they are also less likely to receive probation because the factors that are assessed with whether someone is released on parole are often stacked against them.[101]  Incarcerated people who had a history of psychiatric hospitalization were thirty times less likely to be granted parole than the incarcerated population who did not have a history of psychiatric hospitalization.[102] While evaluating the risk factors of a candidate who is up for parole, a parole board may see the existence of mental illness in and of itself as a risk that the candidate will recidivate.[103]This is even though there seems to be little to no direct correlation between mental illness and recidivism rates.[104]

Because people with mental illness are disproportionately involved with law enforcement and less likely to receive alternatives to incarceration, they are also overrepresented within prison and jail walls. Approximately thirty-seven percent of incarcerated individuals in state and federal prisons have a history of mental illness, which is double the incidence of mental health issues among the entire adult population.[105] Approximately sixteen percent of people in prisons and jails have a reportable serious mental illness.[106] Some studies have shown that forty percent of people with a serious mental illness have been in prison or jail at some point in their life.[107] This overrepresentation of people with mental illness within every aspect of the criminal justice system cannot continue without intervention. 

B.   Overcrowding 

American prisons and jails are already overflowing with incarcerated people.[108] As the population in American prisons and jails rises, the conditions inside worsen.[109] For instance, with rising global heat[110] and people sharing cells meant for fewer incarcerated people in prison cells,[111] the incarcerated population is in danger of overheating in a place where they have no option to stay.[112] This can be particularly dangerous for incarcerated people with mental illness. This is because overheating is more likely for people who take Serotonin Reuptake Inhibitors[113] (“SSRIs”) – a typical antidepressant treatment.[114] When an individual is taking an SSRI, they are more susceptible to heat-related symptoms such as sweating, thirst, and overheating.[115] It stands to reason that the incarcerated population who take SSRIs is not immune to these dangers.[116] For that reason, and others, there is no reason to add to the incarcerated population with actually innocent people who have a mental illness.

C.   The Weight of Confession Evidence 

The weight of confession evidence is a heavy one for criminal juries. The weight is heavy enough that it has been acknowledged by the Supreme Court as ranking “high in the scale of incriminating evidence.”[117] Juries are swayed more by a confession, even one obtained through coercive means, than most any other type of evidence.[118]One group of researchers polled 169 adults to gain insight into how people view confessions and how much weight, if any, they give to confessions as an indicator of actual guilt.[119] Sixty-four percent of participants indicated that they agree with the assertion that “[a] confession is a strong indicator of a person’s guilt.”[120] Fifty-one percent indicated that they agree with the statement, “[i]f someone has confessed to a crime, they are probably guilty.”[121] Out of the 169 survey participants, approximately thirty-nine had previously served on a criminal or civil jury.[122] Despite the participants’ confidence in confessions being an indicator of guilt, only three percent strongly disagreed with the statement, “suspects sometimes confess to crimes they did not commit.”[123]

One reason juries may be able to give so much weight to a false confession is that they cannot imagine themselves in a position in which they would falsely confess to a crime.[124] Such a fundamental attribution error[125]allows a person to acknowledge that false confessions can happen without believing that the defendant in front of them may have falsely confessed.[126] This does not prevent people from, at the very least, acknowledging that others may give a false confession. The participants of the aforementioned survey recognized that people with mental illness or people who are “psychologically disturbed” are particularly vulnerable to falsely confessing.[127]

Even when presented with an illegally obtained confession and instructed to ignore a confession by a judge, a jury may not be able to completely disregard a confession.[128] This issue, combined with the weight that juries give confession evidence, is certainly a problem. Although individuals acknowledge the existence of false confessions, there is no way to know whether a person who believes false confessions happen would also know how to determine whether a confession put in front of them is false. The inability of an average jury member to distinguish a false confession from a true one, combined with the weight that that jury member may give a confession, is a strong reason to support reforming interrogation reform in a way that minimizes false confessions. 

D.   Ensuring Trust and Transparency in the American Justice System

It is not a secret that coercive techniques are used by law enforcement during interrogations.[129] However, public perception of what interrogations look like is skewed. One survey illustrated that people may believe that law enforcement uses threats of harsher punishment, to elicit a confession from a suspect, than they do.[130] More than seventy percent of the survey participants also indicated a belief that long interrogations, lasting several hours, are “likely” or “very likely” to be used.[131] This opinion is starkly contrasted with a survey of police interrogators, who estimated the average length of an interrogation to be 1.60 hours.[132]

It is important to advocate as much transparency within the criminal justice system as justice will allow. Such transparency may help to bridge the gap between public perception and reality by both allowing people to see the inner workings of practices such as criminal interrogations and also by public perception promoting change within those practices. Furthermore, more transparency may strengthen the general public’s trust in law enforcement. In 2020, only twenty-six percent of U.S. adults had a “great deal” of confidence in police officers to act in the public’s best interests.[133] When law enforcement is working within a system that relies on information from the public, raising public trust is essential to bettering the reliability of law enforcement. 

E.   Basic Human Decency

Simply, it would be wrong to leave the current approach of interrogating people with mental illness in the state it currently is. People are often in a disadvantaged position in many aspects of life.[134] Courts and legislature have taken steps to grant special protections to those with mental illness.[135] Further protections ought to be taken by the legislature to grant people with mental illness special protections within an interrogation room. Not only must many people with mental illness deal with these disadvantages, but they often face discrimination in other aspects of their lives.[136] Changes to systems ought to be made, when they can be made, to reduce hardships faced by those in vulnerable positions. 

IV. Proposed Reform

A.  Eliminate the Reid Method of Interrogation

There are many reasons why the Reid Technique is not conducive to obtaining the truth from a suspect. The first and foremost reason is that the Reid Technique was created using an outdated and debunked idea that an interrogator can tell if a suspect is lying by observing physiological changes in the suspect.[137] The very basis of the Reid Technique is simply not rooted in reality.[138] Although the Reid Technique relies on the concept that a person can tell when another person is lying by observing them, the average person cannot detect when a person is lying with any greater accuracy than a flip of a coin, even when they can observe the behavior of the person they are analyzing.[139]

Not only is the Reid Technique developed from false assumptions, but it also uses methods that can increase the likelihood of false confessions. The Reid Technique encourages interrogators to approach an interrogation with a criminal suspect from an aggressive position and a position in which the interrogator already believes the suspect is guilty.[140] This presumptive guilt of the person they are interrogating leads to the interrogator to engage in other behaviors that elicit false confessions. For example, leading questions[141] are typically used in presenting an alternative question step in the interrogation stage when the Reid Technique is being utilized.[142] These leading questions, which have a predetermined answer that the interrogator is attempting to elicit from their suspect, may lead a more susceptible person to adopt the wanted answer and result in a false confession. The “overcoming objections” step is another problematic area of the Reid Technique. In this step, the interrogator is encouraged to combat a person’s objections to their guilt. The Reid Technique claims that objections “are heard, almost exclusively, from guilty suspects” but offers nothing to support that notion.[143] Although the authors of the current iteration of the Reid Technique handbook offer a lot of prefaces to the technique, a lot of them are given to improve the intended confession’s likelihood of admissibility in court.[144]

The current handbook for the Reid Technique does warn its readers that the behavior of a person with mental illness should not be analyzed with the same scrutiny as the behavior of a person who does not have a psychiatric history.[145] However, this warning can only help if the interrogator recognizes that the person they are interrogating has a psychiatric history and the interrogator heeds the four-paragraph warning in a book that is over 400 pages long. If the interrogator does neither, then a person with mental illness will be subjected to interrogation methods that should not be used on them. The methods and ideals of the Reid Technique are not conducive to obtaining the truth from suspects. They only serve to elicit confessions, even if they are false. For these reasons, the United States should eliminate the usage of the Reid Technique by law enforcement officers in favor of a method that mitigates false confessions. 

After eliminating the Reid Technique style of interrogation, something will need to take its place. It is important to implement guidelines that law enforcement can follow to conduct interrogations. Having a guideline in place will make it easier to regulate interrogations across jurisdictions and will hopefully reduce rouge agents conducting immoral interrogations. The interrogation method that should replace the Reid Technique is the P.E.A.C.E. model of investigative interviewing. 

A group of experienced police officers, with the input of psychologists, academics, and lawyers developed the P.E.A.C.E. model in the 1990s after the Court of Appeals of England and Wales found that many confessions coming through lower courts were not made voluntarily.[146] To combat involuntary confessions, the P.E.A.C.E. model is centered around active listening, conversation management, and other scientifically proven techniques.[147] Instead of working towards a confession, such as what the Reid Technique is designed to do, the P.E.A.C.E. model is designed to gather accurate and reliable information.[148] The P.E.A.C.E. model encourages the interviewer to treat the interviewee with courtesy, respect, and kindness to build a relationship and trust.[149] This relationship building is emphasized during the Engage and Explain stage of the interview and can reveal vulnerabilities that the interviewee may have, such as a mental illness.[150] The P.E.A.C.E. model has already made a tremendous difference in investigative interviewing across the world.[151] Because the P.E.A.C.E. model makes efforts to focus on accuracy rather than obtaining a result, no matter the outcome, and because it increases the likelihood of the interviewer seeing the vulnerabilities in the interviewee, the model should be adopted in the United States. 

B.   Strengthen Understandings About Miranda Rights

Although the current iteration of Miranda warnings does a decent job at explaining the four major rights that are protected by the Constitution, it does not do a sufficient job at explaining what those rights mean or how a person invokes their rights. The current iteration does not explain that, to invoke one’s right to remain silent, one must verbalize that they are invoking their right.[152] Yet they can implicitly waive that same right by speaking with the police.[153] To people with no legal training and who are undergoing the stress of an interrogation, this would be counterintuitive; they have to speak to indicate that they will not speak, but if they speak in another context, they have waived that right. Someone with no legal training cannot be expected to inherently know that this is how to invoke their right to remain silent; they are not told this when they are given their Miranda warning. Yet, if they do not know this, there may be dire legal consequences. 

Not only do Miranda warnings fail to cover the practicalities of a person’s actual Miranda rights, but they also do not make it clear that the person understands their rights. After a law enforcement officer reads a person’s Mirandarights to them, they merely ask whether the person understood what they were read.[154] With the current Mirandawarning, there is no objective measure to determine whether the person understands their rights as read to them. The only thing to indicate that the person understands their rights is if they tell the law enforcement officer that they understand them. However, many people with mental illness suffer from lower self-esteem.[155] Lower self-esteem may contribute to a person saying that they understand the Miranda warning even though they do not understand it because they do not want law enforcement officers looking down at them or believing that they are incapable of understanding. 

There has been a push to overhaul the current standard for Miranda warnings in favor of a complete and more explanatory version. Advocates have primarily placed this focus on changing Miranda warnings for children.[156] The proposed reform for Miranda warnings for adults with mental illness should be similar to the reform proposed for juveniles, not because the two groups are similar in terms of mental capacity, but because both groups have been treated as protected groups in many places in the law. To make Miranda warnings easier to understand, they should be given using this script:

You have the right to not talk to me. This means that you do not have to talk with me and you do not have to answer my questions. If you do not want to talk to me, say “I want to remain silent.” If you do talk to me, anything you tell me may be used in court against you in trial. You have the right to have a lawyer with you who represents you. A lawyer is someone who helps you understand the law. If you do not have a lawyer and you do not have enough money to pay for one, we will help you get one. If you want a lawyer, say, “I want a lawyer.” What would you like to do? 

After this script has been read to the person whom law enforcement wants to interrogate, they must ask the person to explain each Miranda right back to the officer. If the person cannot explain one of their rights to the officer, the officer must either take the time to reexplain the right to the person, or the officer must contact an attorney to consult with the person with mental illness and be present for the interrogation.[157] This simplified Miranda warning combined with the process of having the person in custody explain their rights to a law enforcement officer should ensure that people with mental illness fully understand their Miranda rights. 

C.  Mandatory Crisis Intervention Training for all Law Enforcement Officers 

It has always been pertinent for law enforcement to gain a better understanding of the communities that they serve. When law enforcement cannot recognize symptoms of mental illness there is a significant chance of encounters with the mentally ill population becoming deadly.[158] To mitigate these unnecessary injuries and deaths, all law enforcement officers in the United States ought to go through mandatory crisis intervention training.[159] This training will better prepare law enforcement for their inevitable interactions with people with mental illness and reduce the chances of danger for the parties involved. 

In recent years, there has been more of a push for law enforcement officers to receive crisis intervention training. So much so, that many police departments in the United States have been supplying it or even mandating it for their officers.[160] Crisis intervention training has been linked to law enforcement officers arresting fewer people who are experiencing a mental health crisis.[161] Instead, the officers were more likely to use negotiation tactics and divert people to treatment facilities.[162] All law enforcement jurisdictions should follow the lead of places like Michigan[163] and implement crisis intervention training for their law enforcement officers. Unlike Michigan, however, such training should be mandatory and not optional.[164]

D.   Including Mental Health Professionals in Interrogations

Police officers are not mental health professionals. Many officers have a difficult time discerning what vulnerabilities,[165] if any, a suspect that they are interrogating may have.[166] Many cities have begun experimenting with co-deploying mental health professionals alongside law enforcement officers when they respond to certain calls,[167] including a professional who is trained in identifying, responding to, and advocating for people with mental illness.  This approach may be a great help in identifying people who need to be given extra protection during interrogation and possibly divert those people into a pipeline for mental health treatment rather than incarceration. 

The mental health professional’s purpose, before and during the interrogation, would be to identify whether the person being interrogated has a mental illness. If they do have a mental illness, then all adopted reforms that are suggested in this paper are attached and need to be implemented. If the person already had their Miranda rights read to them, and it was not a simplified version, then the simplified Miranda warning must be read to them before the interview can continue. The mental health professional should also work to divert the person into a mental health treatment program when deemed necessary. 

V. Implimentation Challenges

A.   Challenges of the P.E.A.C.E. Model 

There are many issues facing the adoption of the P.E.A.C.E. interrogation model in the United States. A lack of resources in some jurisdictions may make it difficult to ensure those departments receive the proper training in the P.E.A.C.E. model. There may also be challenges in training current law enforcement officers out of the practices that they have already been trained in and have been using for decades. There may even be resistance from law enforcement officers who do not want to forego the Reid Technique. These challenges are certainly not the only ones, but they are among the ones that are the hardest to work around in the current criminal justice system in the United States.

It may be difficult to train current law enforcement officers in the P.E.A.C.E. model due to the lack of resources in various jurisdictions. Training new and old officers would require either sending hundreds of trainers across the United States or offering multiple large trainings where departments can send their officers. Although the first option may be easier for local law enforcement departments because they will not be short-staffed while their officers are traveling to be trained and it would not require traveling expenses from the departments and officers, it would result in a much slower adoption of the P.E.A.C.E. model. It would certainly take time for a handful of people to go from department to department and train them only a few at a time. However, that seems like a better option than the second one, which would require departments to be short-staffed while some of their officers leave to undergo training in the P.E.A.C.E. model. 

There may be resistance from current law enforcement who do not wish to leave their current practices behind in favor of learning new ones. If law enforcement officers push back and are resistant to changing their interrogation methods, that does not mean that the change should not happen. Many states have already made changes to their interrogation methods.[168] Change is oftentimes necessary to make problems better, but it may be hard to combat certain pushback from officers. For instance, newer officers who were trained in the P.E.A.C.E. model may be pressured by their older and more experienced colleagues into continuing practices from the Reid Technique. Although this type of pushback may slow down the absolute adoption of the P.E.A.C.E. model, it seems unlikely that it would halt the adoption entirely. So long as new officers are continuously trained in the P.E.A.C.E. model and the model is reinforced through regular training in more established officers, this problem can be overcome. 

B.   Effectiveness of Crisis Intervention Training 

A prominent critique of crisis intervention training is that it is currently debatable whether the training is effective and to what extent it is effective.[169] For example, although law enforcement officers perceive themselves as less likely to use unnecessary force after receiving crisis intervention training,[170] that perception may not match reality.[171] If it turns out crisis intervention training is not effective, there may be an issue with training law enforcement using this method. The officers may become more confident that they can determine who has a mental illness and that they can interact with a person with a mental illness. This confidence may then make the officers act with misplaced confidence towards those with mental illness without questioning the situation in front of them. 

One solution to this is to continue to study crisis intervention training and conclusively determine whether it is effective in preparing law enforcement for their interactions with people with mental illness. If these studies determine that they are ineffective, then crisis intervention training needs to be revamped so that it is effective. It must be possible to train law enforcement properly to identify and interact with people with mental illness; it may just take more work than is currently being done. 

C.   Including Mental Health Professionals in Interrogations

If a mental health professional is going to be in the interrogation room, there lies a difficulty in determining how it is determined whether that professional needs to be there. On one hand, relying on law enforcement to know when a mental health professional needs to be present for an interrogation would not be reliable enough. As established in Section Four of this paper, law enforcement officers are not often competent in determining whether the person they are talking to has a mental illness or similar vulnerability. On the other hand, many jurisdictions would not have the resources to always have a mental health professional available for every interview. 

A solution to this problem might be to carve out a unique right for people with mental illness to have a mental health professional present in a custodial interrogation and make this right known to them through their Miranda warning. This version of the Miranda warning would be read to anyone, regardless of whether the law enforcement officer believed the person needed it. However, this may again be a problem with a lack of resources if people who do not need a mental health professional request one. 

Further, if Miranda warnings are not changed to increase a person’s ability to understand them, then the same issue would exist as it does now.  Individuals suffering from mental illness would disproportionately require assistance understanding how to invoke this right and would not get the help that a mental health professional would provide. It then may raise an issue where law enforcement officers become more confident that the person in front of them does not have a mental health issue because they did not invoke their right to a mental health professional. 

Conclusion

The issue of mental health in the US is a hot one, and it is only getting worse. The deinstitutionalization movement, combined with several other factors, created an issue in which the American criminal justice system acts as a de facto mental healthcare system. While this issue itself needs to be remedied, steps must be taken along the way to make conditions for people with mental illness better within the American criminal justice system. The reforms suggested in this paper will not eradicate false confessions from people with mental illness, but they will help. Not only will these reforms help place safeguards that will make it less likely for law enforcement to trick people with mental illness into giving false confessions, but they will also force law enforcement to engage with any preconceived notions they may have concerning people with mental illness. It is also worth noting that some of these reforms will not only help people with mental illness, but they will also provide safeguards for people in other vulnerable groups and the general population when they are being interrogated. Regardless of whether all or some of these suggested reforms are adopted, it is important to start working towards benchmarks that will make it difficult for law enforcement to coerce false confessions out of mentally ill people. 


[1] History of Impact, Innocence Project, https://history.innocenceproject.org/ (last visited Nov. 3, 2023) (The Innocence Project was created in 1992, through the Benjamin N. Cardozo School of Law, as a clinic that worked toward freeing wrongfully convicted people through post-conviction DNA testing).

[2] About Season One, Serial, https://serialpodcast.org/season-one/about (last visited Nov. 3, 2023); Daniel Victor, Timeline: The Adnan Syed Case, N.Y. Times (Oct. 5, 2023),  https://www.nytimes.com/article/adnan-syed-serial-timeline-serial.html (Serial is a podcast first produced in 2014. The first season covers the story of Adnan Syed, who was convicted of the murder of his ex-girlfriend. The story gained national attention and led to the overturning of his conviction. As of the writing of this paper, Adnan Syed’s conviction has been reinstated and continues to be litigated in Maryland Courts).

[3] Bruce Vielmetti, Netflix Series Brings Worldwide Spotlight to Steven Avery Case, Milwaukee J. Sentinel (Dec. 25, 2015), https://archive.jsonline.com/news/crime/netflix-series-brings-worldwide-spotlight-to-steven-avery-case-b99639845z1-363521841.html/#:~:text=On%20Dec.,they%20started%20following%20the%20case (Making a Murderer is a Netflix docuseries that covers the story of Steven Avery, who was convicted and exonerated of sexual assault and attempted murder, and Brendan Dassey, a minor with an intellectual disability who was convicted as an accessory to the crime).

[4] See, e.g., Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions go Wrong 8-11 (2011) (discussing factors that have been commonly seen while examining wrongful convictions); The Issues, Innocence Project, https://innocenceproject.org/the-issues/ (last visited Nov. 3, 2023) (This is a non-exhaustive list). 

[5] Victor Rosario, The Nat’l Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5196 (last visited Nov. 3, 2023). 

[6] Id. 

[7] Id.

[8] Id. 

[9] Id. 

[10] Id. 

[11] Id. 

[12] Id.

[13] Id.

[14] Id.

[15] Id. 

[16] Id. 

[17] Id. 

[18] Id.

[19] Id. 

[20] Id. 

[21] Id.

[22] Id. 

[23] Id. 

[24] Id. 

[25] Id. 

[26] Id. 

[27] Id. 

[28] Id. 

[29] Id. 

[30] Id. 

[31] Id.

[32] PrefaceFred e. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne, Criminal Interrogation and Confessions, vii (Sean Connelly et al. eds., 5th ed. 2013).

[33] Id. 

[34] See id. at vii-ix. 

[35] E.g., Douglas Starr, Why are Educators Learning How to Interrogate Their Students?, Tʜᴇ Nᴇᴡ Yᴏʀᴋᴇʀ(Mar. 25, 2016); Alexa Van Brunt, Adult Interrogation Tactics in Schools Turn Principals Into Police Officers, The Guardian (Mar. 19, 2015, 7:15 AM). 

[36] Saul Kassin, Duped: Why Innocent People Confess and Why We Believe Their Confessions 45 (1st ed. 2020) (ebook). 

[37] Inbau, supra note 32, at iiiv. 

[38] James Orlando, Interrogation Techniques, Office of Legislative Research: Research Report (last visited Mar. 13, 2024), https://www.cga.ct.gov/2014/rpt/2014-R-0071.htm#:~:text=The%20Reid%20Technique%20involves%20three,analysis%2C%20interviewing%2C%20and%20interrogation.

[39] Id. at 9-10. 

[40]Mary Schollum, Bringing PEACE to the United States: A Framework for Investigative Interviewing, The Police Chief, Nov., 2017 at 32 (P.E.A.C.E. is an acronym that stands for Planning and Preparation, Engage and Explain, Account, Closure, and Evaluation. These are the five stages of an investigative interview under the P.E.A.C.E. model).

[41] Inbau, supra note 32, at 153. 

[42] Id. at 154.

[43] Id. at 187-190 (discussing the nine steps). 

[44] U.S. Const. amend. V (“No person shall… be compelled in any criminal case to be a witness against himself.”).

[45] Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”). 

[46] Id.

[47] Id. 

[48] Id. 

[49] What Are Your Miranda Rights?, MirandaWarning.org, http://www.mirandawarning.org/whatareyourmirandarights.html (last visited Nov. 7, 2023) (“Some police departments in Indiana, New Jersey, Nevada, Oklahoma, and Alaska add the following sentence: ‘We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court’.”) [hereinafter, Miranda Rights] (This website was created and is maintained in collaboration between Electric Lemonade, various non-profits, and attorneys across the United States. The purpose of the website is to provide free legal information and inform the general public of their Miranda rights). 

[50] Id. (This is an example of a standard Miranda Warning).  

[51] Miranda v. Arizona, 384 U.S. 436, 444 (1966). 

[52] Id. 

[53] Moran v. Burbine, 475 U.S. 412, 421 (1986). 

[54] Id.

[55] Id. 

[56] Id. 

[57] See, e.g., People v. Braggs, 810 N.E.2d 472, 486 (Ill. 2004); State v. Gann, 823 N.E.2d 383, 392 (Mass. 2005). 

[58] See, e.g., Id.

[59] Miranda v. Arizona, 384 U.S. 436, 444 (1966). 

[60] See id. at 445.

[61] Id. 

[62] Id. 

[63] Dog, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/dog. (last visited Dec. 20, 2023) (Here, “dog” was used by the person informally to refer to another person, which is a common use of the word).

[64] State v. Demesme, 228 So. 3d 1206, 1207 (La. 2017). 

[65] Id. (Justice Crichton conflates the use of “dog” with a different common use of the word, which is to describe the four-legged animal).  

[66] Demesme, 228 So. 3d st 1207. 

[67] Id.; Phila. Police Dep’t, Directive 5.23 6 (2020) (detailing policies surrounding the rights of individuals during interviews and interrogations). 

[68] Miranda Rightssupra note 49. 

[69] Id. 

[70] Id.

[71] Id.

[72] While researching for this paper, it was difficult to find sources that did not conflate people with mental illness and people with neurodevelopmental disorders. Further, it was difficult to find resources that separated people with different mental illnesses, such as those with a personality disorder from those with anxiety disorders or psychotic disorders. While this paper discusses people with mental illness as one group, that is the product of the limited research done on different people with different mental illnesses and it is important to remember that not all mental illnesses are the same nor will they manifest the same. 

[73] False Confessions, The Nat’ll Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Documents/Age%20and%20Mental%20Status%20FINAL%20CHART.pdf (last visited Nov. 3, 2023) (summarizing collected data on false confessions). 

[74] Id. (The report does not make a distinction in the percentages between those with mental illness and those with neurodevelopmental disorders, despite them being vastly different conditions). 

[75] Id.

[76] Id.

[77] Fed. Bureau of Investigations, Uniform Crime Report 2 (2019), https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/persons-arrested.pdf (This number includes the arrests of people with mental illness; this author was unable to find a source that contained a percentage of people without a mental illness who have been arrested). 

[78]  James D. Livingston, Contact Between Police and People with Mental Disorders: A Review of Rates, 67 Psychiatric Services 850 (2016). 

[79] Deinstitutionalization, Bʀɪᴛᴀɴɴɪᴄᴀ.ᴄᴏᴍ, https://www.britannica.com/topic/deinstitutionalization (last visited Nov. 15, 2023) (The deinstitutionalization movement was a social movement prevalent in the 1950s and 1960s that was aimed towards severely mentally ill patients from state institutions and closing the same institutions).

[80] H. Richard Lamb, et al.,, The Police and Mental Health, 53 Psychiatric Services 1266 (2002). 

[81] Eric Westervelt, Mental Health And Police Violence: How Crisis Intervention Teams Are Failing, NPR (Sept. 18, 2020).

[82] Id. at 851. 

[83] Alisa Roth, Insane: America’s Criminal Treatment of Mental Illness 107 (1st ed. 2018) (ebook).

[84] Seth Prins et al., Criminogenic Factors, Psychotic Symptoms, and Incident Arrests Among People With Serious Mental Illnesses Under Intensive Outpatient Treatment, 39(2) L. Hum. Behav. 177, 179 (2015). 

[85] Public Safety Canada, Criminalization of Mental Illness 1 (2005). 

[86] American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 663 (5th ed. 2013). 

[87] Id. 

[88] Id.

[89] See id. at 59 (detailing that people with Attention-Deficit/Hyperactivity Disorder also often experience higher levels of impulsivity); Id. at 281 (detailing that people with Acute Stress Disorder can experience an altered sense of reality).

[90] Melanie Mogavero, An Exploratory Examination of Intellectual Disability and Mental Illness Associated With Alleged False Confessions, 38 Behav. Sci. Law 299, 301 (2020).

[91] Allison D. Redlich, et al., Self-Reported False Confessions and False Guilty Pleas among Offenders with Mental Illness, 34 L. Hum. Behav. 78, 85 (2010). 

[92] Gísli Guðjónsson, The Psychology of False Confessions: Forty Years of Science and Practice 84 (1986). 

[93] Gísli Guðjónsson, New Scale of Interrogative Suggestibility, 5 Personality & Individual Differences 303, 310-13 (discussing the development and meaning of the scales). 

[94] Allyson Horgon, et al., Minimization and maximization techniques: assessing the perceived consequences of confessing and confession diagnosticity, 18 Psych., Crime & L 65, 66 (2012). Minimization techniques include tactics such as feigning sympathy, offering a moral justification for the crime, or shifting blame onto another person. 

[95] Id. Maximization techniques include tactics such as presenting false evidence to a person in an interrogation. 

[96] See, Gisli H Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook 316-318 (2003). 

[97] Braggs, 209 Ill. 2d at 514.

[98] Deanna Pan, TIMELINE: Deinstitutionalization And Its Consequences, Mother Jones (Apr. 29, 2013), https://www.motherjones.com/politics/2013/04/timeline-mental-health-america/.

[99] Roth, supra note 83, at 73.

[100] See e.g., Alexandra Sifferlin, Most Violent Crimes Are Wrongly Linked to Mental Illness, Time (June 6, 2016, 4:00 PM), https://time.com/4358295/violent-crimes-mental-illness/; Sue Abderholden, Please Stop Conflating Mental Illness and Violence, Minn. Reformer (Oct. 5, 2023, 6:00 AM), https://minnesotareformer.com/2023/10/05/please-stop-conflating-mental-illness-and-violence/; Dean Burnett, Stop Blaming Mental Illness for Violent Crimes, The Guardian (Jun. 21, 2016, 6:43 AM), https://www.theguardian.com/science/brain-flapping/2016/jun/21/stop-blaming-mental-illness-for-violent-crimes.

[101] Id. at 11 and 91; Jason Matejkowski, Exploring The Moderating Effects of Mental Illness on Parole Release Decisions, 75 Fed. Probation 25, 26 (2011). 

[102] Id.

[103] Id. (Other parole boards may see the existence of a mental illness and believe it makes the existence of other risk factors more likely). 

[104] See Kwanele Shishane, et al., Mental Health Disorders and Recidivism Among Incarcerated Adult Offenders in a Correctional Facility in South Africa: A Cluster Analysis,  PLOS One (2023) (“Offenders with untreated mental illness have a higher recidivism rate and a greater number of criminogenic risk factors than those without mental illness.”); E. Fuller Torrey, M.D., et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States (2010) (“…most mentally ill persons leaving jails and prisons receive little, if any, psychiatric aftercare. Consequently the recidivism rate is thought to be higher than it is for other released prisoners.”). But see Amy B. Wilson, Examining the Impact of Mental Illness and Substance Use on Recidivism in a County Jail, 34 Int’l J. of L. & Psychiatry 264-268 (2011) (“Serious mental illness alone does not explain greater jail recidivism”); Kristen M. Zgoba, et al., Criminal Recidivism in Inmates with Mental Illness and Substance Use Disorders, 48  J. of the Am. Acad. of Psychiatry & The L. Online 1, 5 (2020) (“Released inmates diagnosed with mental illness who do not abuse substances were at no greater risk of recidivism than inmates who had neither of these problems.”) (This link has been debated and reported on differently between academics. This author recommends that further research be done into this topic, so that a clear result may be reached as to whether a person’s mental health has a direct link to their chances of recidivating into the criminal justice system after their release from incarceration).

[105] Mental Health Treatment While Incarcerated, NAMI, https://www.nami.org/Advocacy/Policy-Priorities/Improving-Health/Mental-Health-Treatment-While-Incarcerated#:~:text=Behaviors%20related%20to%20their%20symptoms,health%20treatment%20in%20incarcerated%20settings (last visited Oct. 23, 2023).

[106] See E. Fuller Torrey, M.D., et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States(2010).

[107] Id.

[108] See, e.g., Ivana Hrynkiw & Ramsey Achibald, Alabama’s Billion-Dollar Prison Plan Does Not End the Overcrowding, Real-Time Ala.News (Apr. 7, 2023, 7:00 AM), https://www.al.com/news/2023/04/alabamas-billion-dollar-prison-plan-does-not-end-the-overcrowding.html; Lauren Soulek, Overcrowding in the South Dakota State Prisons, Keloland (Apr. 14, 2023, 5:16 PM), https://www.keloland.com/news/investigates/overcrowding-in-the-south-dakota-state-prisons/.

[109] See, e.g., Keri Blakinger, Why So Many Jails Are in a ‘State of Complete Meltdown,’ The Marshall Project, https://www.themarshallproject.org/2022/11/04/why-so-many-jails-are-in-a-state-of-complete-meltdown.; Amy Miller, Overcrowding in Nebraska’s Prisons Is Causing a Medical and Mental Health Care Crisis, ACLU (Aug. 16, 2017), https://www.aclu.org/news/prisoners-rights/overcrowding-nebraskas-prisons-causing.

[110] Andrew Freedman, July’s “Startling” Heat Puts Climate Change in Focus, Axios (Aug. 4, 2023), https://www.axios.com/2023/08/04/heat-wave-july-climate. 

[111] Dan McCarthy, ‘We’re Stacked on Top of Each Other’: Oregon Inmates Fear Coronavirus Spread in Prisons, KATU (Apr. 10, 2020, 1:45 PM), https://katu.com/news/local/oregon-inmates-and-family-members-describe-coronavirus-concerns.

[112] Ed Pilkington, ‘People Are Dying’: Texas Prisoners Say Heatwave Turns Cells Into Ovens, The Guardian (Jul. 31, 2023, 6:00 AM), https://www.theguardian.com/us-news/2023/jul/31/texas-prison-heatwave-temperatures-cells.

[113] Nancy Schimelpfening, Common Antidepressant Medications: What You Should Know About SSRIs and Other Common Antidepressants, verywellmind (Apr. 18, 2023), https://www.verywellmind.com/most-common-antidepressants-1066939 (An individual is typically prescribed an SSRI for mental illnesses such as anxiety or depression. SSRIs are amongst the most commonly prescribed medications for a person with a mental illness). 

[114] See Marlene Cimons, Risks for Some Medications Rise as Temperatures Climb, Wash. Post (Jun. 27, 2020, 12:00 PM), https://www.washingtonpost.com/health/risks-for-some-medications-rise-as-temperatures-climb/2020/06/25/0ba887e4-ae90-11ea-856d-5054296735e5_story.html; Deborah Serani, Heat Intolerance and Psychiatric Medications, Psychology Today (Jul. 27, 2021), https://www.psychologytoday.com/us/blog/two-takes-depression/202107/heat-intolerance-and-psychiatric-medications.

[115] Serani, supra note 116. 

[116] Cimons, supra note 116 (“Few studies have examined the dangerous interaction between drugs and heat, and experts say more are needed.”) (This author recommends that specific research be done on the incarcerated population who take SSRIs, and their chances of experiencing such medical dangers. Very few studies have been done on the general public regarding such dangers, and this author was not able to find studies done on the incarcerated population specifically). 

[117] Miranda v. Arizona, 384 U.S. 436, 442 (1966) (“While the admissions or confessions of the prisoner…have always ranked high in the scale of incriminating evidence….”). 

[118] Linda A. Henkel, Kimberly A. J. Coffman & Elizabeth M. Dailey B.A., A Survey of People’s Attitudes and Beliefs about False Confessions, 26 Behavioral Sciences & the Law 555, 556 (2008) (In the study conducted by this cited authority, physical evidence such as DNA and fingerprints was the only type of evidence that was surveyed as more persuasive than a confession). 

[119] Id. at 558.

[120] Id.

[121] Id.

[122] Id

[123] Id. at 563.

[124] Id.

[125] A fundamental attribution error refers to a person’s capability of holding another person accountable to a standard that they do not hold themselves to. 

[126] Henkel, supra note 120, at 578.

[127] Id. at 570. 

[128] Id. at 580.

[129] See, e.g., Daniel Wu, Louisiana Police Held Detainees in ‘Torture Warehouse,’ Lawsuits Say, Wash. Post. (Sept. 20, 2023, 1:52 AM); Radley Balko, After Killing John Crawford, Ohio Police Then Berated His Grieving Girlfriend,Wash. Post. (Dec. 17, 2014, 1:30 PM). 

[130] Henkel, supra note 120.

[131] Id.

[132] Saul M. Kassin et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 L. & Hum. Behav. 381, 392 (2007). 

[133]Pew Research Center, Do Americans Trust the Police?, YouTube (Jan. 5, 2022), https://www.youtube.com/watch?v=Jj9vD7cKUhE&list=PLZ9z-Af5ISaswq9yoHM32olz4-AITb1Dl (This data may be affected by other events in 2020, such as the murder of George Floyd. Other similar polls were conducted in 2020, but this author was unable to find a more recent poll). 

[134] See, e.g., Christina Mangurian, et. al., Diabetes and Cardiovascular Care Among People with Severe Mental Illness: A Literature Review, 31 J. Gen. Internal Med. 1083 (2016) (Concluding that people with mental illness live, on average, twenty-five years less than the general population.); Cathryn Rodway et al., Patients With Mental Illness as Victims of Homicide: A National Consecutive Case Series, 1 The Lancet Psychiatry 129 (2014) (Concluding that, in England and Wales, people with mental illness are more likely to be victims of homicide than the general population). 

[135] E.g., Atkins v. Virginia, 536 U.S. 304 (2002) (granting protections for people with mental illness against the death penalty). 

[136] See, e.g., Louis Krauss, City of Anoka Program Discriminated Against Tenants With Mental Illness, DOJ Report Finds, StarTribune(Nov. 9, 2023, 6:21 PM), https://www.startribune.com/city-of-anoka-minnesota-discriminated-against-tenants-mental-illness-justice-department-report-finds/600318647/;  Jenifer B. McKim, Prisoners With Mental Disabilities Claim Discrimination by Massachusetts Parole Board, GBH News (Aug. 3, 2023, Updated Aug. 7, 2023), https://www.wgbh.org/news/local/2023-08-03/prisoners-with-mental-disabilities-claim-discrimination-by-massachusetts-parole-board.

[137] Inbau, supra note 32, at vii.

[138] E.g., Martina Vicianova, Historical Techniques of Lie Detection, 11 Eur. J. of Psych. 522, 525-6 (2015) (discussing the inaccuracy of polygraph tests which rely on measuring physiological changes); 

[139] Charles Bond, Jr. & Bella DePaulo, Accuracy of Deception Judgments, 10 Personality & Soc. Psych. Rev. 214, 219 (2006). 

[140] Inbau, supra note 139.

[141] Leading questions are questions that encourage a certain answer from the person being questioned.

[142] Inbau, supra note 32, at 299.

[143] Id. at 276. 

[144] E.g.id. at 75 (“When a suspect voluntarily submits to an interview, it is our recommendation to advise the suspect that he is not in custody and is free to leave at any time. Although such a statement is not legally required, it can prove beneficial in court if a defense attorney attempts to argue that the interview was custodial and therefore Miranda rights should have been issued and waived.”); Id. at 169 (“For court purposes, it is not recommended that the investigator categorize a suspect’s response to behavior-provoking questions as truthful or deceptive at the time each question is asked.”).

[145] Id. at 145-146.

[146] Id. at 30.

[147] Id.

[148] Id. at 32.

[149] Id. at 33. 

[150] Id.

[151] Id. (The P.E.A.C.E. method has been adopted in multiple countries including Australia and Norway. Others, such as Vietnam, Singapore, and the Republic of Ireland have adopted or are considering adopting the method in part). 

[152] See Miranda Rightssupra note 49; Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (“If an accused makes a  statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation or ask questions to clarify whether the accused wants to invoke [their] Miranda rights.”). 

[153] North Carolina v. Butler, 441 U.S. 369, 379 (“…Miranda requires the police to obtain some kind of waiver — whether express or implied….”).

[154] See Miranda Rightssupra note 49. 

[155] Peter Silverstone & Mahnaz Salsali, Low Self-Esteem and Psychiatric Patients: Part I – The

Relationship Between Low Self-Esteem and Psychiatric Diagnosis, 2 Annals of Gen. Hospital Psychiatry 1, 3 (2003). 

[156] See, e.g., Paula Wissel, Teenage Brains Don’t Understand Miranda Warnings, Say Juvenile Justice Reformers, KNKX Public Radio(Aug. 6, 2020, 10:00 AM), https://www.knkx.org/news/2020-08-06/teenage-brains-dont-understand-miranda-warnings-say-juvenile-justice-reformers; Sarah Martinson, Prosecutors Push For National Reform On Youth Interrogation, Law 360 (Feb. 6, 2022, 8:02 PM), https://www.law360.com/articles/1461825/prosecutors-push-for-national-reform-on-youth-interrogation, Logan Seacrest, Pennsylvania’s Juvenile Justice Reform Moment Is Here, RStreet (Sept. 26, 2023), https://www.rstreet.org/commentary/pennsylvanias-juvenile-justice-reform-moment-is-here/.

[157] Alternatively, and ideally, the officer could also contact a social worker or other mental health professional as suggested in this paper. 

[158] See Dorris A. Fuller, H. Richard Lamb, Michael Biasotti & John Snook, Treatment Advocacy Center, Overlooked in the Undercounted: The Role of Mental Illness in Fatal Law Enforcement Encounters 1 (2015), https://www.treatmentadvocacycenter.org/storage/documents/overlooked-in-the-undercounted.pdf.

[159] Crisis intervention training refers to the training of first responders which centers curriculum aimed at reducing severe injury and death in their interactions with people with mental illness. 

[160] E.g., Annie Elming, Mental Health Training for Nebraska First Responders Held at CenterPointe, KLKNTV (Aug. 1, 2023, 7:04 PM), https://www.klkntv.com/mental-health-training-for-nebraska-first-responders-held-at-centerpointe/; Dylan Goetz, University of Michigan-FlintPolice Undergo Mental Health De-Escalation Training Program, m Live (Jul. 24, 2023, 7:52 AM), https://www.mlive.com/news/flint/2023/07/university-of-michigan-flint-police-undergo-mental-health-de-escalation-training-program.html; Cody Taylor, Madison Police Department Adapts to Mental Health Crisis, Spectrum News (Aug. 2, 2023, 9:01 AM), https://spectrumnews1.com/wi/milwaukee/news/2023/07/25/madison-police-mental-health-#:~:text=The%20problem%20is%20most%20police,Enforcement%2DMental%20Health%20Learning%20site.

[161] Michael T. Compton et al., The Police-Based Crisis Intervention Team (CIT) Model: II. Effects on Level of Force and Resolution, Referral, and Arrest, 65 Psychiatric Services 523, 528 (2014).

[162] Id. 

[163] Erin Bowling, Michigan Police Officers Train for Mental Health Crisis Response, De-Escalation, WILX (Mar. 10, 2023, 6:53 PM), https://www.wilx.com/2023/03/10/michigan-police-officers-train-mental-health-crisis-response-de-escalation/.

[164] Id.

[165] Here, vulnerabilities include mental health disorders as well as intellectual disabilities. 

[166] Mogavero, supra note 90, at 304.

[167] Helena A. Addison,et al.,, Resident Perspectives on Police Involvement in the Response to Mental Health Crisis, 8 J. of Cmty. Safety & Well-Being 112 (2023). 

[168] E.g., Alison Cross, CT Passes Bill Targeting Police Interrogation Practices, Including Bar on Offering False Facts, Promises to Juveniles, Hartford Courant (Jun. 1, 2023), https://www.courant.com/2023/06/01/bill-targeting-deceptive-and-coercive-interrogation-passes-ct-legislature/ (Most of the recent changes made to interrogations have been targeted at banning law enforcement from being able to lie to minors in an interrogation). 

[169] See Sema A. Taheri, Do Crisis Intervention Teams Reduce Arrests and Improve Officer Safety? A Systematic Review and Meta-Analysis, 27 Crim. Just. Pol’y Rev. 76, 90-91 (2014) (stating that the current research shows no benefits or harms linked to crisis intervention training and discussing that the reason may be the limitations of the research) (The link right now is merely suggested, as stated in section four of this paper and not entirely confirmed because current literature reviews on the topic are limited due to the lack of studies that have been completed. It is the recommendation of this author for more studies to be done on the possible link between crisis intervention training on police and the potential benefits). 

[170] Michael T. Compton, et al., Use of Force Preferences and Perceived Effectiveness of Actions Among Crisis Intervention Team (CIT) Police Officers and Non-CIT Officers in an Escalating Psychiatric Crisis Involving a Subject With Schizophrenia, 37 Schizophrenia Bulletin737, 741 (2009). 

[171] Id. (“…CIT training did not have a prominent effect on use of force….”). 

Constitutional Protections and Procedural Rights in Electoral Petitions: the Case of Trump v. Anderson

By Noam Koslov (read PDF version)

Abstract

President Donald J. Trump engaged in an insurrection. On its face, this conclusion seems to have originated in a criminal proceeding, following a thorough jury trial that adhered to all standards offered by the Constitution to protect the rights of criminal defendants. However, this is not the case. In a civil proceeding, following a five-day bench trial in a state district court, the Colorado Supreme Court decided that Mr. Trump engaged in an insurrection against the United States, violating his oath to the Constitution.[1] Colorado’s supreme court decided that in doing so, Trump became ineligible for seeking re-election in 2024 and ordered Colorado’s Secretary of State to remove his name from the Republican primary ballot.[2] This unprecedented decision sparked much controversy, especially among constitutional and election law commentators. This article attempts to examine Colorado’s decision from a different angle: analyzing the procedural framework of the decision and the procedural validity of the judicial process.

This article will argue that regardless of the constitutional and election law questions raised by the ruling, the Colorado Supreme Court ruling grossly violated Mr. Trump’s procedural due process rights. While the decision took place in a civil proceeding, where procedural protections typically offered to criminal defendants are not present, the electoral petition should have been characterized as a quasi-criminal proceeding.[3] Accordingly, while the Constitutional protections of the criminal process do not apply in full force, due process dictates the implementation of some of these constitutional and procedural protections even in a civil case. This is not a novel conclusion. Courts and commentators have long recognized the applicability of some constitutional and procedural protections to quasi-criminal proceedings. However, in the context of electoral petitions that involve criminal allegations, the issue remains overlooked and ignored, even though such proceedings serve as an almost textbook example of quasi-criminal cases that should enjoy some of the constitutional and procedural protections typically offered to criminal defendants. Therefore, while this comment is nominally concerned with Trump v. Anderson, it attempts to, more broadly, shed light on an overlooked and underdeveloped body of law –– the procedural rules governing quasi-criminal election petitions.

I.    Introduction

On December 19, 2023, the Supreme Court of Colorado issued an unprecedented and detrimental ruling: Donald J. Trump cannot appear on the ballot in the State of Colorado, as he is not eligible to serve as President of the United States due to his involvement in an insurrection.[4] This decision immediately sparked controversy. Some saw it as a great triumph of the principle of the rule of law,[5] as even the most powerful people in the nation are held accountable for their actions, and the nation ejects from within its ranks those who threatened the sanctity of democratic rule and peaceful transfer of power. Others, however, saw the decision as a violent attack on democracy and an attempt to deprive many voters of their right to elect the candidate whom they see fit to serve as the next president of the United States.[6] While the political repercussions of the decision are immense, the Colorado Supreme Court ruling is first and foremost a legal decision that will inevitably be challenged in the United States Supreme Court.[7] Accordingly, the decision is unprecedented not only in its political consequences but also in the court’s legal reasoning. While much of the attention has been allocated to the constitutional and election law aspects of the decision, especially the court’s interpretation of Section 3 of the Fourteenth Amendment, it seems that these discussions overlook a vital component of the ruling –– to arrive at its decision, the court first needed to make the factual determination that Trump’s actions did constitute an insurrection. For this factual analysis to be made, the court needed to hear evidence to determine the nature of Trump’s conduct on January 6th, 2021. Only then could the court assess whether that conduct constituted incitement of an insurrection and whether Trump was thus precluded from seeking office again.

This factual determination may be overlooked because it appears that everyone knows what Trump did on January 6th. However, when a person is accused of committing a crime, it is not enough to point out that everyoneknowswhat they did. Instead, the accusing party needs to present reliable, admissible evidence to prove its case. But in the current case, nofirsthand witnesses appeared before the court in the five-day trial. Furthermore, the respondents were precludedfrom subpoenaing some firsthand witnesses who previously testified as to Trump’s conduct on that day.[8] Instead, the court mainly based its factual conclusions on the final report of the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the report”). This report ishearsay, because committee members based their report not on their own firsthand experiences, but on testimony they heard from witnesses who testified in front of the committee.[9] Thus, the court should have been precluded from using the report as evidence. The court, however, explained that the report fell within a hearsay exception outlined in § 803(8)(c) of the Colorado Rules of Evidence.[10] This exception, virtually identical to a similar exception found in Rule 803(8) of the Federal Rules of Evidence, allows the admission of “factual findings resulting from an investigation made pursuant to authority granted by law.”[11] The court was incorrect, however, and this was not sufficient for the report to be deemed admissible. It will be argued later in this article that due to the quasi-criminal nature of the proceeding in question, some of the constitutional and procedural protections offered to criminal defendants should apply to the case. Among them, the respondent-defendant in the proceeding, accused of committing a serious federal crime, should be entitled to confront the witnesses against him.[12] Otherwise, the introduction of evidence without such confrontation violates the respondent’s due process rights, and thus, such unconfronted evidence should be deemed inadmissible.[13]

As it will be shown, this is not a novel argument. Courts have long recognized that quasi-criminal proceedings should offer some of the constitutional and procedural guarantees provided to criminal defendants.[14] Specifically, the right to confront one’s witnesses should sometimes be extended to quasi-criminal proceedings by virtue of the due process clause.[15] However, this general understanding has been overlooked and almost ignored in election law proceedings. It will be argued in section V that election law cases involving direct criminal allegations against the respondent serve as textbook examples of quasi-criminal proceedings. Accordingly, some of the constitutional and procedural protections offered to criminal defendants should also be extended to quasi-criminal cases.

II. Background: Colorado Supreme Court’s Ruling

While we are interested here in only a specific aspect of the Colorado Supreme Court’s ruling (“the ruling”), it may be helpful to briefly discuss the background to the decision. President Trump was elected as theforty-fifth President of the United States. He then ran for re-election during the 2020 campaign, losing to current President Joseph R. Biden, Jr.[16] Trump, however, refused to recognize his defeat, arguing that election fraud deprived him and his voters of their so-called rightful victory.[17] Despite dozens of challenges by his legal team, virtually no widespread election fraud was found.[18] Accordingly, the Electoral College elected President Biden as theforty-sixth President,[19] and Congress was set to ratify his election on January 6th.

Trump and some of his supporters refused to accept this upcoming ratification of Biden’s victory. Trump held a rally on the morning of January 6th at the Ellipse in Washington, D.C., where he spoke to the attendees. In his speech, President Trump persisted in rejecting the election results, telling his supporters that “[w]e won in a landslide” and “we will never concede.”[20] He urged his supporters to “confront this egregious assault on our democracy,” “walk down to the Capitol…[and] show strength,” and that if they did not “fight like hell, [they would] not…have a country anymore.”[21] Before his speech ended, portions of the crowd began moving toward the Capitol.[22] Trump’s supporters then forcibly entered Congress,[23] where they started desecrating the building and searching for elected officials while chanting “Hang Mike Pence,”[24] in an attempt to persuade Vice President Pence from ratifying the election. However, Vice President Pence ratified the election a few hours later, and President Biden was subsequently sworn into office on January 20.[25]

Following the events that unfolded on January 6th, a Congressional Investigatory Committee was established.[26] For the proposes of this article, it is enough to note that the bipartisan committee conducted a thorough investigation of the events, hearing eye-witness testimony from Trump’s staff and inner circle, as well as direct witnesses who came in contact with Trump on January 6th and testified about his actions.[27] Following its investigation, the Committee published its final report on December 22, 2022,[28] where it laid out its findings concerning the events that unfolded on January 6th. The report included specific findings concerning Mr. Trump’s conduct,[29]concluding that Trump and his team orchestrated a deliberate, pre-meditated scheme to overthrow the results of the 2020 election [30]  The scheme included the spread of false assertions regarding alleged election fraud, an attempt to block the ratification of the elections, and finally, a direct call on supporters to “fight” on Capitol Hill to prevent said ratification from taking place.[31] The Committee concluded that there was sufficient evidence to charge Trump with the federal crime of aiding and assisting an insurrection, a federal felony under 18 U.S.C. 2383.[32] However, Trump has never been indicted on the crime (despite facing multiple other federal charges).[33]

In the buildup to the 2024 election, Trump decided to run for president once again. Accordingly, he decided to participate in the Republican primary elections and petitioned the Colorado Republic State Committee (CRSC) to include his name in the Colorado primary.[34] The CRSC agreed, and Trump was subsequently put on the ballot in Colorado.[35] However, a group of Colorado voters filed an election petition with a Denver district court.[36] They argued that Trump’s actions on January 6th constituted an insurrection against the United States, thus violating Trump’s oath to the Constitution.[37] Petitioners further argued that Section 3 of the  Fourteenth Amendment,[38] which precluded a person who violated his oath to office from holding public office again, applied to the office of presidency.[39] Therefore, Trump, who violated his oath to office by engaging in insurrection, could not hold the presidential office again. Accordingly, petitioners argued that the court should order Colorado’s Secretary of State to dismiss Trump from the ballot.[40]

The district court conducted a five-day trial during which it assessed evidence offered by the parties.[41] The primary evidence presented to the court was the report, as well as the testimony of Timothy Heaphy, Chief Investigative Counsel for the Committee, who testified on the Committee’s proceedings.[42] On November 17, the district court issued its decision.[43] The court ruled that sufficient evidence was presented to conclude that Trump engaged in an insurrection.[44] The court based this conclusion almost entirely on the report and its findings.[45] As explained above, the court concluded that the report was admissible as evidence since it fell within the hearsay exception laid in section 804(8)(c) of Colorado’s Rules of Evidence, which dictated that “factual findings resulting from an investigation made pursuant to authority granted by law” can be admissible in a civil proceeding.[46] The court then concluded that despite Trump’s participation in the insurrection, he was not disqualified from running for president since the office of president did not fall within the definition of Section 3 of the Fourteenth Amendment.[47]

Both Trump and the petitioners appealed this decision.[48] On December 19th, the Supreme Court of Colorado granted the petitioners’ appeals and decided in a four-to-three ruling that Trump was precluded from appearing on the Colorado ballot.[49] The Supreme Court sided with the district court’s decision in concluding that the report was admissible under Colorado’s Rules of Evidence.[50] The court further stipulated, contrary to the district court’s assertion, that Section 3 did apply to the office of president. Thus, President Trump violated his oath to office and the Fourteenth Amendment, which made him ineligible to serve as president.[51] Therefore, the court concluded that President Trump should not appear on the Colorado ballot.[52]

This decision by the court creates several different issues. The topic mostly discussed by commentators is the constitutional question raised by the court: does Section 3 of the Fourteenth Amendment apply to the office of president?[53] Another aspect of the decision is whether Trump’s conduct can be defined as an “insurrection” for the purposes of Section 3.[54] While these legal questions are important, they overlook the underlying basis for the court’s decision.

For the court to even discuss the applicability of the Fourteenth Amendment, or the scope and meaning of the term “insurrection”,[55] the court first needed to rule that petitioners provided sufficient evidence to prove that Trump committed the conduct that was attributed to him. After all, if the court could not decide that Trump did make the remarks that petitioners accused him of asserting, then the case would fail before even reaching the constitutional issue. If the petitioners failed to present valid evidence concerning Trump’s conduct on January 6th, then it cannot be found that he engaged in an insurrection, and accordingly, the applicability of the Fourteenth Amendment becomes irrelevant altogether.

The following analysis will attempt to address this overlooked aspect of the decision. Indeed, the current case is not alone in its insufficient consideration of the procedural and evidentiary issues surrounding election litigation.[56] Too often, procedural aspects of election law are overlooked and even ignored. But it is precisely when we are concerned with elections, the core of our democracy and the heart of the rule of law,[57] that adhering to the procedural protections offered by law should be at the top of our priorities. After all, if Trump’s right to stand for election, and the right of millions of Americans to vote for Trump, were deprived in a procedure that failed to adhere to the requirements of due process, it would constitute an unforgivable blow to our democratic system.

III.       Quasi-Criminal Procedures

Civil and criminal proceedings are two different species in the realm of procedural due process, separated by an ocean of distinct and often contradictory laws. While criminal cases are almost exclusively tried in front of a jury, civil cases are sometimes tried in a bench trial.[58] Where criminal cases are governed by strict procedural and constitutional protections such as the Confrontation Clause,[59] Miranda rights,[60] an increased standard of proof,[61] asymmetric presumptions that favor the defendant,[62] and others,[63] the civil litigation world is typically viewed as a more equal playing field,[64] with fewer protections and privileges offered to the civil respondent than to the criminal defendant.[65] This distinction also makes sense –– while the criminal procedure is characterized by an asymmetrical process, where the all-powerful government is faced against a typically disempowered defendant and where the trial’s result might deprive the defendant of their freedom and sometimes their life,[66] the stakes of the civil case are seen as less consequential.[67]

However, this theoretical clear-cut distinction does not always stand in the test of reality.[68] For example, in some cases, the government chooses to refrain from the convoluted criminal process and instead impose regulatory or administrative sanctions (such as fines for DWI),[69] or deprive a person’s freedom by means other than incarceration (such as the forced commission to a mental institution).[70] In addition, sometimes civil suits filed by private litigants require proof of criminal conduct on the part of the respondent.[71] These cases and others, while nominally conducted in the realm of civil procedure, exhibit some characteristics of the criminal world.[72] Consequently, a large body of text deals with these ‘quasi-criminal’ procedures.[73] It is generally agreed that while such cases should, by and large, adhere to the civil law’s standards and procedures, their special status should require the adoption of specific doctrines, rules, and privileges typically found in criminal law. For example, when the plaintiff accuses the respondent of criminal conduct, such as fraud, the plaintiff will be held to an increased burden of proof⸺  that of “clear and convincing evidence,” as opposed to the usual “preponderance of evidence” standard applicable to civil procedures.[74] Similarly, when the government uses administrative regulations to prosecute DWI cases in a civil jurisdiction, the respondent-defendant will still enjoy the protections of Miranda.[75]Finally, in some cases, due process will dictate that the defendant will be entitled to confront the witnesses against her,[76] to prevent a case where ex-parte witness testimony will form a damaging civil proceedings (for instance, in civil commitment cases).[77]

Overall, the unique nature of quasi-criminal cases is a well-documented and broad phenomenon found in various areas of civil law.[78] It is also generally agreed that respondents in such quasi-criminal cases should be offered some, but not all, of the constitutional and procedural rights that criminal defendants enjoy.[79] While there is a disagreement on the scope and nature of the privileges that should be offered to such respondent-defendants, and the Court has yet to lay a general framework for the appropriate treatment of quasi-criminal cases,[80] it seems that the extent and scope of the privileges is usually determined based on the level of resemblance of the quasi-criminal procedure to a typical criminal case.[81]

IV.        The Trump Case as a Quasi-Criminal Procedure

The effect of the Colorado ruling is arguably no less detrimental than that of a typical criminal case: Trump was deprived of the right to stand for election, and millions of Coloradoans were deprived of the right to elect the candidate they see fit for the highest office of the land. Regardless of whether the court had jurisdiction to issue such a ruling and whether the ruling was warranted or not, both sides of the debate can agree that the ruling has an immense, unprecedented effect on the nation.[82] This, however, is not enough for the case to be considered a quasi-criminal procedure. After all, many consequential cases have been decided in a civil jurisdiction. Instead, what needs to be assessed is whether the procedure resemblesa criminal case. If it does not, then the applicability of constitutional and procedural protections from the realm of criminal law would be irrelevant and unwarranted. However, if the case does resemble a criminal procedure to an extent sufficient for deeming it a quasi-criminalcase, then we may move on to consider what, if any, criminal-law doctrines should be applied to the case.

As explained above, Trump v. Anderson centered around a critical question – did Trump engage in an Insurrection against the United States? I argue that the court effectively assessed whether Trump aided and abetted the crime of federal insurrection.[83] While the court did not explicitly equate its assessment with the criminal law federal offense of insurrection, its decision process starkly resembles a decision in a criminal case.

First, the court defined the different elements of the ”offense” in question. The court decided that the offense contained two elements: the “insurrection” element and the “engagement” element.[84] The court explained the actus reus and mens rea of each Insurrection, the court explained, is, “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”[85] The term engagement was defined by the court as to “require an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.”[86] Thus, for the actus reusof the offense to be satisfied, the court deemed that President Trump needed to act in a way furthering or attempting to further, concentrated public use of force to hinder or prevent the U.S. government from taking actions necessary to accomplish a peaceful transfer of power.[87]  The court also explained the mens reaof the offense ⸺ Trump was required to have acted intentionally. He needed (1) to be aware of all elements of the offense (i.e., that an insurrection was taking place and that he was acting in furtherance of said insurrection) and (2) to also intendto further the insurrection through his actions.[88]

After setting forth the elements of the offense in question, the court moved on to decide whether Trump did exhibit both the actus reus and mens rea required for the offense to be fulfilled. Concerning Trump’s actus reus, the court explained that he actively ordered his aids to spread the “Stop the Steal” conspiracy,[89] later calling on his supporters to march on the capitol and “fight”[90]. The court also decided that Trump had acted with the knowledge that his supporters were about to take unlawful actions to stop the peaceful transfer of power, making him awareof the insurrection, and showing Trump had intentto further the plot.[91] Thus, Trump exhibited both the actus reusand mens reaof the offense, and the court concluded that he engaged in an insurrection.[92]

Regardless of the accuracy of this conclusion by the court, its decision resembles the criminal decision-making process. Consider a scenario where Trump was criminally charged with engaging in an insurrection under 18 U.S.C. 2383 and the case was adjudicated in a bench trial. How would the court go about deciding the case? The court would first lay forth the crime that Trump was accused of engaging in insurrection. The court would explain the different elements of the crime and what the prosecution was required to show to prove its case. The elements of the offense laid out by the court will not be very different from those laid out by the Colorado court, as discussed above. After all, the Colorado court itself used criminal law authorities to define “engagement in insurrection.”[93] After laying down the elements of the offense, the criminal court would assess the evidence presented by the parties and decide whether the evidence brings to the conclusion that the actus reus and mens rea requirements of the offense have been fulfilled. This was also the path taken by the Colorado court: it assessed Trump’s conduct, as well as Trump’s state of mind, and decided that Trump had engaged in insurrection with the intentof doing so.[94]

This last point is especially crucial. Civil law is seldom concerned with the intent of the actors.[95] While some torts require proof of intent,[96] and other specific rules also concern themselves with the subjective state of mind of the actor,[97] civil law is generally satisfied with objective standards and at most requires proof of negligence.[98] Often, no proof of state of mind is needed at all.[99] Accordingly, the fact that the Colorado court discussed Trump’s subjective state of mind goes to show that the procedure in question took the form of a quasi-criminal case.

Consequently, the dissent in the Colorado ruling effectively treated the case as a quasi-criminal one, stipulating that Trump should have been offered more procedural and constitutional protections than are typically granted in normal civil law cases.[100] The dissent stated that the special nature of the proceeding created “the need to provide ample due process (more than is available in typical civil cases) to anyone alleged to have violated Section Three.”[101] The dissent emphasized the extreme consequences of the decision, as well as its quasi-criminal nature.[102] All of these, the dissent asserted, created the need to offer Trump some of the protections and privileges typically available to criminal defendants.[103] However, the four judge majority disagreed.[104]

Overall, it seems that the case was a quasi-criminal one. Trump was accused by petitioners of committing a federal crime (engaging in insurrection), and the court employed criminal law definitions and rules to arrive at the decision that Trump indeed engaged in an insurrection.[105] This conclusion by itself is not a criticism of the decision. Civil cases often involve quasi-criminal procedures,[106] and indeed, election petitions sometimes take the form of a quasi-criminal proceeding.[107] This conclusion, however, does mean that in Trump v. Anderson, Trump should have been afforded some criminal law protections. It remains to be decided what kind of criminal law doctrines and privileges should apply to the current case.

V.  Confrontation in Quasi-Criminal Cases

The Confrontation Clause, enshrined in the Sixth Amendment of the Constitution,[108] safeguards a defendant’s right to confront and cross-examine witnesses against them in criminal prosecutions. Traditionally, the Supreme Court’s Ohio v. Roberts jurisprudence dictated that the Confrontation Clause can be satisfied even when hearsay evidence is introduced without the opportunity to confront the evidence’s source, so long as the evidence exhibits indicia of reliability.[109] This framework of the Court was heavily criticized for blurring the line between the Confrontation Clause and state and federal hearsay rules. In Crawford v. Washington, the Court overturned its previous Roberts jurisprudence, deciding that “the [Confrontation] Clause’s goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”[110]  The Crawford Court decided that its previous indicia-of-reliability jurisprudence did not offer adequate protection to defendants as dictated by the Confrontation Clause.[111] Instead, the Court decided that any testimonialevidence must be subject to cross-examination.[112] Hence, if the defendant was unable to confront testimonial evidence through cross-examination, then the Confrontation Clause precluded the admission of the evidence, regardless of its trustworthiness or the existence of a state of federal hearsay exception. The Court did not define the term “testimonial,” and much disagreement exists to this day regarding the scope of the definition.  In this article, it will be assumed that testimonial evidence means any evidence intended “to establish or prove past events potentially relevant to later criminal prosecution.”[113]

Accordingly, the witness testimony in the Congressional report would fall firmly within the definition of testimonial evidence: the testimony was given in a fact-finding procedure to establish past facts and events.[114] Thus, had the report been presented as evidence in a criminal trial, Crawford would have dictated that the Confrontation Clause precludes the introduction of the report as evidence,[115] and the report would have been swiftly thrown out of evidence.[116] The Confrontation Clause, however, presumably applies only to criminal cases. After all, the Confrontation clause explicitly reads that “[i]n all criminal prosecutions, the accused shall enjoy….”[117] Hence, even if the report is inadmissible in a criminal trial, it may be admissible, subject to state and federal evidence rules, in a civil case. Had Trump’s case been a regular civil procedure, this would have been the appropriate conclusion. However, Trump’s case is not a typical civil procedure. As explained above, Trump’s case falls within the category of quasi-criminal procedures, where, despite nominally being part of the civil law rules and procedures, criminal law doctrines and protections may sometimes be introduced.

Indeed, the Confrontation Clause, and specifically the Crawford jurisprudence, has been recognized by courts as one of these criminal law doctrines that should sometimes apply to quasi-criminal procedures.[118] These unique characteristics of quasi-criminal cases often persuade judges to introduce some of the protections and privileges typically offered to criminal defendants and apply them even concerning the respondent-defendant in a quasi-criminal case. This is also true in the case of Confrontation and Crawford jurisprudence, where courts have recognized that using unconfronted hearsay testimony might jeopardize respondent-defendant’s due process rights.[119]

Similarly, even in some civil law cases that are not quasi-criminal, courts recognized that although the Confrontation Clause does not apply to the case, the rationale of Crawford namely, that trustworthiness needs to be assessed through cross-examination⸺ can be extended to civil law cases through the due process right.[120]

Overall, it can be asserted that quasi-criminal cases sometimes prompt courts to introduce doctrines and privileges usually applicable only to criminal law. One of these doctrines is that of confrontation through cross-examination, as set forth by the Court in Crawford.[121], Applying the Crawford framework to the report would render the report firmly inadmissible.[122] In addition, we have also seen that the Trump case falls within the definition of quasi-criminal procedures, and it is therefore warranted to apply some criminal-law doctrines to the procedure. Hence, it is only left to assess whether the Crawford framework should be applied to the Trump case. That is, should the court require testimonial evidence to be subjected to cross-examination as a condition for its admissibility?

VI.        Confrontation and the Trump Case

It would not be an exaggeration to say that the Trump v. Anderson ruling is one of the most critical court decisions in recent years. Whether the Supreme Court will overturn the decision remains to be seen, but the impact of the ruling is already observable. Republican lawmakers argued that in response to the decision, other states should disqualify President Biden from appearing on the ballot.[123] Others argued that the Colorado decision requires a complete restructuring of election law to prevent such a decision from occurring again.[124] Above all, the ability of one of the frontrunners for the Presidency to even stand for elections has been starkly undermined mere weeks before the primary elections.[125] As explained above, this national turmoil ultimately stems from an unprecedented decision by the Colorado court: the factual ruling that President Trumpengaged in insurrection on January 6th.  But is it possible that this crucial factual ruling was decided without hearing a single direct eyewitness? Is it possible that the court issued its remarkable, groundbreaking ruling without hearing firsthand about what happened on January 6th? Unfortunately, this is precisely the case.[126]

In a five-day trial, a Denver district court heard secondhand, hearsay testimony from members of the congressional committee.[127] The court then based its conclusions on the testimonial statements found in the congressional report.[128] In its decision to uphold the district court’s ruling, the Supreme Court of Colorado stated that the congressional report was compiled by a team of “highly skilled lawyers”.[129] The ability and skill of the lawyers are undisputed. The integrity of the congressional bipartisan committee is also evident. What is disputed, however, is the authority of a state supreme court to decide that a former President has committed one of the most serious offenses in federal law, and disqualifying said President from ever seeking public office again, depriving tens of millions of Americans of their right to elect their preferred leader, all without hearing a single firsthand witness that could testify to Trump’s actual conduct on the day of the election. And this is not for lack of availability of possible witnesses. The January 6th  insurrection took place only two years ago, and some of the witnesses who appeared in front of the committee have since become vocal opponents of Trump and express their disapproval of his actions in any forum that would listen (and rightly so, considering they are probably correct to claim that Trump attempted to orchestrate a coup).[130] Yet the court did not see it fit to invite even one of them to testify about what they had seen and heard on January 6th. The court did not explain to the plaintiffs that firsthand testimony is in order in such a damaging case.

It thus seems that the Trump case, as a quasi-criminal proceeding, is precisely a case where certain criminal law doctrines should be adopted. Specifically, the detrimental effect of the case, combined with its deliberation on the allegation that Trump committed a crime, both point to the conclusion that the court should have adopted the Crawford framework for the treatment of testimonial evidence and required the production of firsthand eye-witness testimony in person, subjecting the testimony to cross-examination. Failing to do so violated Trump’s due process rights. Indeed, deciding on one of the most critical questions in the nation’s history in a five-day trial, without calling on a single firsthand witness, indicates that the judicial procedure in the Trump case violated due process. Accordingly, the court’s decision should be overturned irrespective of the complex and detrimental constitutional questions it raises.

VII.     Conclusion

It is in the most contentious cases that our judicial system is tested the most. Trump may have engaged in insurrection. Indeed, he probably did attempt to disrupt the peaceful and democratic transfer of power. It is precisely for this reason that a proceeding set to determine Trump’s eligibility to seek office again needs to follow all the procedural requirements established by law. There was no justifiable reason to refrain from holding a procedurally sound hearing. The court could have called on witnesses, directly heard them, and allowed the sides to cross-examine them. This, the Supreme Court dictates, should be the preferred way to determine facts in our judicial system. Furthermore, in the case of criminal proceedings, as well as some quasi-criminal cases, this is not only a preferred method, it is the only method.

This article argued that aside from the complex constitutional issues raised by the recent Colorado ruling that disqualified Trump from appearing on the Colorado ballot, the court’s ruling cannot stand due to its unsound procedural mechanisms, jeopardizing Trump’s due process rights. Trump v. Anderson demonstrates that in some detrimental legal cases, we are so eager to reach the vital constitutional and fundamental issues that we sometimes forego the procedural rules and requirements that govern the case. The basic building blocks of a functioning legal system do not start with its ability to decide abstract constitutional dilemmas correctly. They begin with the ability of the judicial system to hold a judicial hearing that adheres to the basic principles of fairness and due process. Thus, before assessing the constitutional interpretation of Section 3 of the Fourteenth Amendment, we need to make sure that our courts decide detrimental factual questions based on witness testimony and not ex-parte affidavits.


[1] Anderson v. Griswold, 2023 Colo. LEXIS 1177.

[2] Id.

[3] See Infra Part III.

[4] Anderson v. Griswold, 2023 Colo. LEXIS 1177, at 141.

[5] Kimberly Wehle, The Colorado Supreme Court Decision Is True Originalism, The Atl. (Dec. 21, 2023), https://www.theatlantic.com/ideas/archive/2023/12/colorado-supreme-court-decision-originalism-trump/676934/; Isabella Murray, Experts Dissect Key Arguments in Colorado Supreme Court 14th Amendment Ruling, ABC News (Dec. 22, 2023), https://abcnews.go.com/Politics/experts-dissect-key-arguments-colorado-supreme-court-ruling/story?id=105809634.

[6] Miranda Nazzaro, Republican Lawmakers Slam Colorado Ruling, The Hill (Dec. 19, 2023), https://thehill.com/homenews/house/4368711-gop-lawmakers-slam-colorado-courts-trump-decision/.

[7] Indeed, the decision was challenged and overturned by the Supreme Court. However, the Court, too, concentrated on the principled constitutional question at hand, somewhat overlooking the procedural challenges posed by the Colorado ruling. Therefore, it seems that the importance of a procedural examination of the ruling has only been underlined by the path taken by the Supreme Court. See Trump v. Anderson, 601 U.S. 1, 11-12 (2024).

[8] Anderson v. Griswold, 2023 Colo. LEXIS, at 181, 198.

[9] H.R. Rep. No. 117-000, at 3 (2022). (hereinafter: The Report).

[10] Fed. R. Evid. 803(8)(c).

[11] Colo. R. Evid. 803(8).

[12] See infra Part V.

[13] Id.

[14] Elizabeth Anne Fuerstman, Trying (Quasi) Criminal Cases in Civil Courts: The Need for Constitutional Safeguards in Civil RICO Litigation, 24 Colum. J.L. & Soc. Probs. 169, 173 (1991); John Henry Crouch, Criminal Procedure in Mississippi: A Summary of the Right to Assistance of Counsel, The Right of Confrontation, and Juvenile Quasi-Criminal Proceedings, 47 Miss. L.J. 91, 125 (1976); Colin Miller, Impeachable Offenses?: Why Civil Parties in Quasi-Criminal Cases Should BE Treated Like Criminal Defendants Under the Felony Impeachment Rule, 36 Pepperdine L. Rev. 997, 1001 (2009).

[15] See infra note 118 and the accompanying text.

[16] Peter Baker, Biden Inaugurated as 46th President, N.Y. Tɪᴍᴇs (Jan. 26, 2021), https://www.nytimes.com/2021/01/20/us/politics/biden-president.html#:~:text=418-,Biden%20Inaugurated%20as%20the%2046th%20President%20Amid%20a%20Cascade%20of,is%20still%20ravaging%20the%20country.

[17] Ed Kilgore, Trump’s Long Campaign to Steal the Presidency: A Timeline, New York Mag. (July 14, 2022), https://nymag.com/intelligencer/article/trump-campaign-steal-presidency-timeline.html.

[18] Russell Wheeler, Trump’s Judicial Campaign to Upend the 2020 Election: A Failure, but not a Wipe-Out, Brookings (Nov. 30, 2021), https://www.brookings.edu/articles/trumps-judicial-campaign-to-upend-the-2020-election-a-failure-but-not-a-wipe-out/; Maryclaire Dale, Trump’s Legal Team Cried Vote Fraud, but Courts Found None, Assᴏᴄɪᴀᴛᴇᴅ Pʀᴇss (Nov. 22, 2020), https://apnews.com/article/election-2020-donald-trump-pennsylvania-elections-talk-radio-433b6efe72720d8648221f405c2111f9.

[19] Mark Sherman, The Electoral College Makes It Official: Biden Won, Trump Lost, Assᴏᴄɪᴀᴛᴇᴅ Pʀᴇss (Dec. 15, 2020), https://apnews.com/article/joe-biden-270-electoral-college-vote-d429ef97af2bf574d16463384dc7cc1e.

[20] Anderson v. Griswold, 2023 Colo. LEXIS at 8-9.

[21] Id.

[22] Id.

[23] The Report, supra note 9, at 465.

[24] Id. at 38.

[25] See Baker, supra note 16.

[26] See The Report, supra note 9.

[27] Anderson v. Griswold, 2023 Colo. LEXIS at 53 (while the committee had bipartisan representation, the court still noted that the report would have been viewed more favorably had Speaker Pelosi not rejected some of the candidates chosen by the Republican party); The Report, supra note 9, at 3.

[28] Deepa Shivaram, The House Jan. 6 committee releases its final report on the Capitol attack, NPR (Dec. 22, 2022), https://www.npr.org/2022/12/21/1144489935/january-6-committee-full-report-release.

[29] See The Report, supra note 9, at 109.

[30] See The Report, supra note 9, at 109.

[31] Id.

[32] 18 U.S.C. §2383; The Report, supra note 9, at 109.

[33] Politico Staff, Tracking the Trump Criminal Cases, Politico (June 13, 2023) https://www.politico.com/interactives/2023/trump-criminal-investigations-cases-tracker-list/; Amy O’Kruk & Curt Merrill, Donald Trump’s Criminal Cases, in One Place, CNN (Dec. 11, 2023), https://edition.cnn.com/interactive/2023/07/politics/trump-indictments-criminal-cases/.

[34] Anderson v. Griswold, 2023 Colo. LEXIS at 9.

[35] Id.

[36] Anderson. v. Griswold, 2023 Colo. Dist. LEXIS 362, 54 (hereinafter Anderson District Ruling).

[37] Id.

[38] U.S. Const. amend. XIV, § 3.

[39] Anderson District Ruling, supra note 36, at 3.

[40] Id at 4-5.

[41] Id. at9.

[42] Id. at24.

[43] Id. at131.

[44] Id. at91.

[45] Anderson, supra note 36, at Section F.

[46] Colo. R. Evid.  803(8).

[47] Anderson District Ruling, supra note 36, at 131.

[48] Anderson, supra note 36, at 10.

[49] Id. at7-8.

[50] Id.

[51] Id.

[52] Id.

[53] Andrew Prokop, The Fraught Debate over Whether the 14th Amendment Disqualifies Trump, Explained, VOX (Dec. 19, 2023), https://www.vox.com/politics/23880607/trump-14th-amendment-lawsuits-federalist-society#:~:text=The%20argument%20for%20disqualifying%20Trump,Constitution%2C%20from%20holding%20office%20again; Mark A. Graber, Does 14th Amendment Bar Trump from Office? A Constitutional Scholar Explains Colorado Ruling, Mo. Indep. (Dec. 20, 2022), https://missouriindependent.com/2023/12/20/does-14th-amendment-bar-trump-from-office-a-constitutional-scholar-explains-colorado-ruling/; Rebecca Shabad, What is Section 3 of the 14th Amendment?, NBC (Dec. 20, 2023), https://www.nbcnews.com/politics/2024-election/trump-14-amendment-section-3-explained-colorado-ballot-ruling-rcna130581.

[54] Nicholas Riccardi, The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here is How That is Playing Out, Assᴏᴄɪᴀᴛᴇᴅ Pʀᴇss (Dec. 25, 2023), https://apnews.com/article/trump-insurrection-14th-amendment-2024-colorado-79373b5043976588b599fc00ede049e8#:~:text=The%20Colorado%20Supreme%20Court%20on,against%20it%20from%20holding%20office..

[55] Id.

[56] See infra note 107.

[57] Cristina Nicolescu-Waggonner, No rule of law, no democracy: Conflicts of interest, corruption, and elections as democratic deficits 3 (2016); Guillermo O’Donnell, Why the Rule of Law Matters, 15 J. Democracy 32, 33 (2004).

[58] Lynn Langton, & Thomas H. Cohen, Civil Bench and Jury Trials in State Courts 2005, Bureau of Justice Statistics Special Report 1 (2008): https://bjs.ojp.gov/content/pub/pdf/cbjtsc05.pdf.

[59] U.S. Const. amend. VI.

[60] Miranda v. Arizona, 384 U.S. 436, 468 (1966).

[61] Mike Redmayne, Standards of Proof in Civil Litigation, 62 Mod. L. Rev. 167, 168 (1999); Louis Kaplow, Burden of Proof, 121 Yale L. J. 738, 747 (2012).

[62] Harold A. Ashford & D. Michael Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79(2) Yale L. J. 165, 171 (1969).

[63] Abraham S. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1150 (1960).

[64] Daniel Epps, Adversarial Asymmetry in the Criminal Process, 91 N.Y.U. L. Rev. 762, 773 (2016); Laura I. Appleman, A Tragedy of Errors: Blackstone, Procedural Asymmetry, and Criminal Justice, 128 Harv. L. Rev. F. 91, 95 (2014-2015).

[65] Id.

[66] Id.

[67] Id.; Susan R. Klein, Redrawing the Criminal-Civil Boundary, 2(2) Buff. Crim. L. Rev. 681 686 (1999).

[68] Id.; Jennifer Hendry & Colin King, Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids, 11 Crim. L. & Phil. 733, 734 (2016).

[69] Stefan A. Riesenfeld, Homicide Committed through the Operation of a Motor Vehicle While, 24 Calif. L. Rev. 555, 557 (1936); Robert B. Sturges, The Elements of Drunken Driving, 3 Crim. Just. Q. 67, 70 (1975); Robert S. Catz & Nancy Lee Firak, The Right to Appointed Counsel in Quasi-Criminal Cases: Towards an Effective Assistance of Counsel Standard, 19 Harv. C. R.-C. L. L. Rev. 397, 415 (1984).

[70] Firak, The Right to Appointed Counsel, supra note 53, at 411.

[71] Fuerstman, supra note 14; Bryant M. Bennett, Clear and Convincing Proof: Appellate Review, 32 Calif. L. Rev. 74, 75 (1944); David L. Schwartz & Christopher B. Seaman, Standards of Proof in Civil Litigation: An Experiment from Patent Law, 26 Harv. J. L. & Tech. 429, 430 (2013).

[72] See generally Fuerstman, supra note 14.

[73] Id.

[74] See Fuerstman, supra note 71.

[75] Lisa Perunovich, Limiting a Driver’s Limited Right to Counsel in DWI Proceedings: State v. Rosenbush, 931 N.W.2d 91 (Minn. 2019), 46 Mitchell Hamline L. Rev. 367, 383 (2020); Zachary S. Whelan, Driving for Second Chances: A Foundation for Establishing the First DUI Expungement Law in New Jersey, 73 Rutgers U.L. Rev. 181, 196 (2020).

[76] Rorry Kinnally, A Bad Case of Indigestion: Internalizing Changes in the Right to Confrontation After Crawford v. Washington Both Nationally and in Wisconsin, 89(3) Marquette L. Rev. 625, 633-634 (2006); Jeffrey Bellin, The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865, 1892 (2012); Esther K. Hong, Friend or Foe: The Sixth Amendment Confrontation Clause in Post-Conviction Formal Revocation Proceedings, 66SMU L. Rev. 227, 260 (2013); Sherman J. Clark, An Accuser-Obligation Approach to the Confrontation Clause, 81(3) Nebraska L. Rev. 1258, 1281 (2003).

[77] Bradley Morin, Science, Crawford, and Testimonial Hearsay: Applying the. Confrontation Clause to Laboratory Reports, 85 B.U. L. Rev. 1243, 1273 (2005); But see In Re: The Civil Commitment of W.X.G., 2011 N.J. Super. Unpub. LEXIS 399 (2011). SVP-444-06 (2011); David Alan Sklansky, Hearsay’s Last Hurrah, 1 Supreme Court Rev. 1, 8 (2009).

[78] Id.

[79] Id. See also Fuerstman, supra note 14.

[80] Kinnally, supra note 76, at 633-34.

[81] See Fuerstman, supra note 14.

[82] See Wehle, supra notes 5 and Nazzaro, supra note 6.

[83] Anderson, supra note 1, at 55, 59.

[84] Id. at100.

[85] Id.at56.

[86] Id. at60.

[87] Id. at123.

[88] Id. at109.

[89] Id. at113-114.

[90] Id. at 9.

[91] See infra note 94 and the accompanying text.

[92] Anderson, supra note 36, 124.

[93] Id. at103.

[94] Id. at  62-65 (“On this point, and relevant to President Trump’s intent in this case…”); (“With full knowledge of these sometimes-violent events, President Trump …”); (“The record reflects that President Trump had reason to know of the potential for violence on January 6.”); (“[t]he evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion…”).

[95] William Searle Holdsworth, History of English Law 375-377 (3d ed. I927); Oliver Wendell Holmes, The Common Law 85-87 (1881); Francis Bowes Sayre, Mens Rea, 45(6) Harv. L. Rev. 974, 990 (1932).

[96] Henry T. Terry, Malicious Torts, 20 L. Q. Rev. 10, 12 (1904); Mark A. Geistfeld, Conceptualizing Intentional Torts, 10(2) J. Tort L. 159, 160 (2017).

[97] Nick Sage, Reconciling Contract Law’s Objective and Subjective Standards, 85(6) Mod. L. Rev. 1422, 1423 (2023).

[98] Holdsworth, supra note 95.

[99] Id.

[100] Anderson, supra note 36, 153-54.

[101] Id. at 181.

[102] Id. at 197.

[103] Id. at180.

[104] Id. at25.

[105] Id. at 109.

[106] See Part III, supra.

[107] Addington v. Texas 441 U.S. 418, 424 (1979); Michael Odugbemi, The Need to Reconsider Standard of Proof of Criminal Allegations in Election Petitions, The Cable (Feb. 14, 2022), https://www.thecable.ng/the-need-to-reconsider-standard-of-proof-of-criminal-allegations-in-election-petition; John Hatchard, Election Petitions and the Standard of Proof, 27 Denning L.J. 291, 293 (2015); F. O. Osadolor, Burden and Standard of Proof in Election Petitions without Criminal Allegations, 12(3) J. Politics & L. 156, 159 (2019); Hoolo ‘Nyane, A Critique of Proceduralism in the Adjudication of Electoral Disputes in Lesotho, 17(2) J. African Elections 1, 8-9 (2018); Aaron Erlich, Nicholas Kerrb, and Saewon Park, Weaponizing Election Petitions, Annual MPSA Meetings, Chicago 34 (2019); Joshua A. Douglas, The Procedure of Election Law in Federal Courts, 2011 Utah L. Rev. 433, 435 (2011); Alexandra Just, Trumping Unmeritorious Election Contests: The Need for Uniform Election Contest Laws in the Wake of 2020 Election Litigation, 62 U. Louisville L. Rev. 167, 199 (2023).

[108] U.S. Const. amend. VI.

[109] Ohio v. Roberts, 448 U.S. 56, 66 (1980); see Noam Kozlov, It Was the Death of Bruton, It Was the Birth of Bruton – Why Confrontation Dismantled the Bruton Rule, and How Due Process Can Save It, 55 St. Mary’s L. J.  (Forthcoming 2024).

[110] Crawford v. Washington 541 U. S. 36, 61 (2004).

[111] Id. at 60.

[112] Id. at 61.

[113] Id.; Davis v. Washington 547 U.S. 813, 822 (2006); Andrew Dylan, Working Through the Confrontation Clause After Davis v. Washington, 76(3) Fordham L. Rev. 1095, 1920 (2009); Kozlov, supra note 109, at 3.

[114] Dylan, supra note 113, at 1915.

[115] Id.

[116] Id.

[117] U.S. Const. amend. VI.

[118] Daniel Huff, Confronting Crawford, 85 Neb. L. Rev. 417, 449 (2006); David Alan Sklansky, Confrontation and Fairness, 45 Tex. Tech L. Rev. 103, 110 (2012); Goldberg v. Kelly, 397 U.S. 254, 270 (1970); Greene v. McElroy, 360 U.S. 474, 496-97 (1959); Willner v. Comm. on Character & Fitness, 373 U.S. 96, 103 (1963).

[119] See Huff, supra note 118, at 448.

[120] Fuerstman, supra note 14 and Kinnally, supra note 76.

[121] Id.

[122] See note 115.

[123] Ray Lewis, GOP State Lawmakers Work to Remove Biden from Ballot: ‘We Must Fight Back’,ABC News (Dec. 22, 2023), https://abc3340.com/news/nation-world/gop-state-lawmakers-work-to-remove-biden-from-ballot-we-must-fight-back-pennsylvania-state-rep-aaron-bernstine-r-lawrence-georgia-state-rep-charlice-byrd-r-woodstock-and-arizona-state-rep-cory-mcgarr-r-pima-co-donald-trump-2024.

[124] Id.

[125] Tom Geoghegan, Can Donald Trump Still Run for President after Colorado Ruling?, BBC (Dec. 20, 0223), https://www.bbc.com/news/world-us-canada-67770912.

[126] Anderson, supra note 36, at 197.

[127] Anderson District Ruling, supra note 36.

[128] Id. at 17.

[129] Anderson, supra note 36, at 53.

[130] See, e.g., Ryan J. Reilly, Vaughn Hillyard, and Daniel Barnes, Trump Grand Jury Hears Testimony from Aide Who Was with Him on Jan. 6, NBC News (July 20, 2023), https://www.nbcnews.com/politics/justice-department/trump-grand-jury-hear-testimony-aide-was-jan-6-rcna94998; Tracy Smith, Trump White House Staffer Cassidy Hutchinson on the Price of Speaking Out, CBS News (Sept. 23, 2023), https://www.cbsnews.com/news/trump-white-house-staffer-cassidy-hutchinson-on-the-price-of-speaking-out/.

Intersectionality in the Tax Code:  A Proposed Change to the Child Tax Credit Requirements to Target Financial Aid to Black Women and Caretakers in Black Kinship Networks

By Alice Caughey (view PDF version)

I. Introduction

It is no secret that White Americans have more financial assets, money, and wealth than Black Americans. The median wealth of White people is ten times that of Black people in the United States.[1] A long history of slavery and racism has left America with a system that disproportionately benefits White taxpayers who have the power to shape tax policies that render the reality of Black Americans unseen.[2]

The intersectionality of racism and misogyny doubly disadvantages Black women in most socioeconomic aspects – including in the American tax system.[3] Black women who work in the labor market make the least amount in wages on average and are excluded from work-based income-security programs, which means they are the least likely to benefit from the tax code.[4] This exclusion makes it harder for Black women to maintain economic stability.[5] And what about the women who do not contribute to the market economy? Women in the United States perform around 40 hours of unpaid care work in the home each week.[6] Any taxpayer that works in the home is completing valuable domestic labor that is invisible to the IRS. This lack of visibility reduces the taxpayer’s eligibility for needed tax credits that help increase their wealth.[7] The Black population is more likely than other racial groups to use kinship networks to support each other with unpaid domestic work and childcare.[8]

The best way to compensate for the inequalities of America’s racist past would be to completely revolutionize the tax code. The modern income tax system was created in 1913—it is only 110 years old—and it would be best to create a new system, rather than to work with the one we have.[9] Such an overhaul is, of course, highly improbable, so instead, this paper provides a look into an alternative way the current tax code can be used to give needed financial assistance to Black women who provide childcare though a new Child Tax Credit.

Part I of this paper will provide information on the ways Black women are disadvantaged by the tax system, due to the racism they experience in the job market, but also the invisibility of their labor in Black Kinship Networks (BKNs) and domestic care work. Part II of this paper will further expand on how discrimination against Black women harms the children in their care networks, and how the Child Tax Credit (CTC) is supposed to be an instrument to minimize financial strain on children. Part III of this paper will detail my proposed expansions on the CTC and how it would target financial aid to Black women and care networks.

II. Black Women in the Tax System

A.   Racism in the Workplace

Black workers face many disadvantages in the workplace. White workers are more likely to be given direct jobs with companies, while Black workers are more likely to be given contract jobs.[10] Contractors are ineligible for “asset building benefits,” which account for one-third of job wealth.[11] These benefits include health care, retirement, paid parental leave, and childcare.[12] “Many black women and men in corporate America stretch their salaries to support extended family members who haven’t had the same wealth-building opportunities,” further lowering their individual wealth.[13] One way Black taxpayers stretch their finances is by making hardship withdrawals on retirement accounts—meaning they will take out money before retirement.[14] Nine percent of Black women have made a hardship withdrawal, which is the highest percentage by race and gender.[15] Early withdrawals from retirement accounts are taxed heavily.[16] In addition to the amount withdrawn being included in your taxable income, there is an additional ten percent income tax added on top.[17] In addition to financial aid, Black communities have historically helped each other by making social care networks, called Black Kinship Networks, or Fictive Kin Networks.[18]

B.   Black Kinship Networks Provide Support Care

Black Kinship Networks (BKNs) are made up of single and married Black individuals who work together to share resources and services as a means of survival.[19] While the government tries to force the idea of a “nuclear” family on its citizens, many people hold other living arrangements. Black women living in different social and romantic situations will often use BKNs as a way of providing the type of care support to each other that is expected of women in nuclear families.[20] These services and resources are often exchanged or paid for with informal financial compensation.[21] Service exchanges go unrecognized by the American tax system, which only identifies formal financial transfers of wealth.[22] The tax system is one of the main tools the federal government uses for administering financial aid programs, but it is not effective in its goals because only recognized income is eligible for this aid.

The existence of BKNs shows that there is economic instability in Black communities, which “forces marginalized people to use their own limited resources to fill in those gaps.”[23] The kinship networks try to make up for the gaps in public care infrastructure, where the government is largely lacking. However, only individuals and families that make income in the marketplace are recognized for tax credits and these credits are based on their yearly taxable income.[24] Black women who are performing care work in the home, as well as for BKNs, are not acknowledged by the tax system, which “cuts off [their] access to key income-security tools.”[25] The lack of financial stability for these women perpetuates the necessity for BKNs.

The financial precarity of Black women also means that their children will lack necessary resources. “Children living in poverty are more likely to live in families with complex care arrangements,” and that is reflected in the way BKNs provide childcare.[26] The current tax system, built on White norms, makes joint filing for married couples the standard. This assumes that nuclear families are the default and that married couples will equally divide their resources. The reality is that marriage rates have been significantly declining, leaving a large portion of children with single parents.[27] While around half of White adults are married, less than one-third of Black adults are married.[28] Many children are living in complex living arrangements, where they split time between two parents, live with nonparent relatives, or move frequently between many relatives’ and nonrelatives’ households.[29] All the people involved in supporting a child should receive financial aid to keep these children out of poverty.  

III. The Child Tax Credit

A.   Limits of the CTC in Extended Care Networks

The Child Tax Credit (CTC) is one of the main tax credits used to help low-income taxpayers. The CTC phases-in when a taxpayer’s taxable income exceeds $2,500 and it phases-out once a taxpayer’s income reaches $200,000, or $400,000 for joint filers.[30] This means the credit is not given to nonworking parents or those who don’t meet the $2,500 threshold, and only a partial benefit is given to low-earning taxpayers.[31] Around forty-five percent of Black children are denied at least a portion of the federal CTC because their family’s income is too low.[32]

During the Covid-19 pandemic, Congress decided to increase the effectiveness of the CTC for the 2021 tax year.[33] The American Rescue Plan Act (ARPA) removed the limits on the CTC’s refundability, so all children could receive the credit, regardless of their family’s working wages.[34] The maximum amount of the credit was increased to $3,500 for children five and under, and $3,000 for children aged six to seventeen.[35] The ARPA pulled a lot of children out of poverty that year.[36] Congress has since been discussing if this CTC expansion should be reinstated.[37]

The childcare provided by BKNs reveals how the current CTC is failing to meet the needs of many Black taxpayers and their children. Under the current CTC rules, only one person (or household, if filing jointly), can claim a child.[38] If a father files his taxes first, claiming his child, that leaves the mother unable to obtain the tax credit when she files, regardless of who actually provides the most support to the child. There is also a six-month residency requirement.[39] So, if a child is moved between caretakers several times a year, it is likely that none of them are eligible to claim the CTC.

If a Black taxpayer decides to be a stay-at-home spouse, they are unrecognized by the tax system and ineligible for this credit. If a Black taxpayer provides childcare for a relative, this labor is unrecognized by the tax system, and they are ineligible for this credit. If a Black taxpayer takes in their grandchild for five months of the year, this labor is unrecognized by the tax system, and they are ineligible for this credit. These rules do not fit the needs of children and caretakers in BKNs.

B.   Redefining “Family” to Support Children in BKNs

The rules for claiming the CTC should be changed to expand on what is defined as a “family” and “relative” so government programs target those who truly need it. “While Black children make up fourteen percent of children in the U.S., they make up twenty-five percent of children being raised in kinship arrangements,” because Black communities often rely on relatives and friends to meet their children’s needs.[40] Black women are mainly responsible for the unrecognized labor that goes into kinship care, which is why focus should be placed on targeting that demographic with a new CTC.

One area where BKNs have more legal recognition is in adoption and foster law. Finding a permanent home for children who cannot live with their parents is important, and it has been recognized that expanding the definition of who is a “relative” to that child beyond blood relation is often necessary. According to the Adoption and Safe Families Act, “if a child has been in foster care for at least 15 of the past 22 months, the state must file a petition to terminate the parents’ rights and concurrently work on finding an adoptive family. However, an exception can be made if ‘the child is being cared for by a relative.’”[41] Each state has its own adoption laws, but some are quite broad.

Maryland legally defines a “relative” as any adult “related by blood, marriage, or adoption within the fifth degree of consanguinity or affinity” or “who makes up the family support system, […] godparents, friends of the family, or other adults who have a strong familial bond with the child.”[42] This legal definition recognizes a “relative” similarly to how Black communities would define a relative. Rules for claiming child tax credits in other countries are also more lenient than in the United States. For example, in the United Kingdom, nonparents can claim children, noncustodial parents can claim children they do not live with, and informal care arrangements are recognized.[43] In Australia, their Family Tax Benefit can be paid to “two or more households based on the percentage of time each household cares for a child.”[44] The U.S. should look to international and state laws to redefine the eligibility of the CTC for “relatives” of children.

IV. A New CTC

A.   Remove the Phase-In Threshold

The goal of the CTC is to pull children out of poverty by providing financial aid to their caretakers.  This proposed Child Tax Credit would begin by removing the income phase-in. Anyone not earning income and taking care of a child would be eligible for the credit. This would allow domestic care workers, who don’t make a formal salary, to be recognized in the tax system and allow them to obtain needed tax credits.

The phase-out for the credit would remain at $200,000 for an individual, or $400,000 for joint filers. While there are many issues with joint-filing—which does not allow each individual spouse to gain wealth when there is one breadwinner in the family—that is beyond the limits of this paper. It will have to be assumed that spouses that jointly file will fairly share the tax credit to support their children and the primary childcare provider.

 This CTC will also be a fully refundable credit. Every taxpayer who claims a child with less than $200,000 taxable income will get the full amount credited to their tax responsibility or be refunded what is left over. It is clear from the 2021 fiscal year that the ARPA pulled many children out of poverty and helped many women of color gain necessary financial support.[45] In fact, since the ARPA lapsed, child poverty has more than doubled.[46] By making the CTC a fully refundable credit, low-income, or no-income, Black women will have a chance to gain financial security to provide for their children and kin networks.

B.   Increase the Number of Taxpayers Claiming a Child

The proposed CTC would allow up to four taxpayers to claim a child, in an effort to recognize the reality of extended care networks. There is a diversity of caregiving arrangements in the U.S., and it would be impossible for the laws to define how to recognize each of them. It also is paternalistic to create a system that dictates how individuals should use the financial aid given to them. Under this new CTC there would be one main caregiver of a child. Preference will go towards their parents, but any relative—loosely defined—may be recognized as the main caretaker. This main caretaker can then designate up to three other individuals to claim their child for credit. Those individuals will also claim the child as a dependent. This system will limit the ability for individuals to commit fraud by claiming just any child.

For example, a mother can be designated as the “main caretaker” while also designating the child’s father and two grandparents as caretakers. The father and grandparents will also claim the child, so each tax form filed matches. The main caretaker will be responsible for confirming that the people claiming their child are authorized. This scheme of designating and claiming caretakers should make this new system easily administrable. Computers should be able to check that only four caretakers are claiming one child, the designated names of caretakers match the names of those claiming a child, and then flag any inconsistencies.

The amount paid to each caretaker will vary slightly. There will be one amount paid to the main caretaker, and a second, lower amount paid to any other designated caretakers. While it would be best to recompensate individuals based on the percentage of support they give a child, it would not be administrable to have a system that accounts for each networks’ varying childcare. The main caretaker should receive $2,000 in credit, per child, while the designated caretakers will get $1,500. The ARPA allowed all children aged five and under to obtain $3,500 in tax credit.[47] Under this proposed plan, if a mother is the main caretaker, and she also designates her sister, who lives with her, to be a caretaker, combined, they would be making $3,500 for the household. This reflects the same amount that was given by the ARPA. Any additional designated caretakers, if the mother chooses to designate one or two more, will be receiving $1,500 in compensation.

C.   Limit Audits on CTC Claimers

What would not be beneficial is to increase IRS audits on individuals claiming the CTC. Taxpayers who claim the Earned Income Tax Credit (EITC) are more likely to be audited, and these “audits reduced the likelihood of claiming the credit among likely EITC-eligible households by [thirty] to [forty] percentage points.”[48] Black taxpayers, in particular, are three to five times more likely to be audited than non-Black taxpayers.[49] The IRS mostly uses computers to track and process audits, but these computer systems are made by humans with implicit biases, and often target minority taxpayers.[50] It would be unhelpful if taxpayers claiming the CTC fell prey to aggressive auditing practices, which usually freeze tax refunds and discourage taxpayers from claiming the credits they are eligible for.[51]

Incomplete take-up due to the complexity of child-claiming rules is also a concern. This credit will further complicate the child-claiming rules, especially when it is first implemented. Tens of millions of dollars are already spent by the government and nonprofits to launch campaigns meant to educate taxpayers on their eligibility for credits.[52] Instead of putting money into auditing people, which is known to discourage claiming, money should be put towards educational efforts and research and development.

In fact, the United States Congress is already attempting to expand the CTC. Republicans and Democrats, while both in favor of the expansion, are arguing about the cost of increasing research and development with it. “Democrats have been clear for the past year that any extension of the R&D tax break must be paired with changes to the child credit,” but Republicans are worried about the cost because “extending the COVID-era child credit would cost an estimated $120 billion annually, while extending R&D amortization until 2025 would cost about $20 billion.”[53] Limiting IRS auditing on those who claim the CTC and EITC could pay back a lot of the money that would be needed for R&D and the government could focus a portion of that money towards educational campaigns to encourage taxpayers to use the credits for which they are eligible.

V. Conclusion

In 2018, child poverty cost the United States over $1 trillion a year.[54] This was before the Covid-19 CTC expansion was passed. The reason for this large sum is that children who grew up in poverty tend to be less productive as adults, have higher health care costs, and higher crime costs.[55] While these are national issues, BKNs are the ones providing solutions, at a cost to domestic laborers. BKNs ameliorate these problems within Black communities by “reduc[ing] mortality risks and stress and anxiety, improv[ing] individuals’ standard of living, and assist[ing] with prisoner reintegration.”[56]

While the government intends to use the tax system to provide needed relief to those in poverty, the current system is doing a poor job of hitting its goal. Black women have filled the gaps where the government has failed to pull each other out of poverty and provide survival support to their families and kin networks. These women have provided this invisible labor despite disparities in the job market, wealth distribution, and inequities in government aid. Their labor should be compensated, and an expansion of the Child Tax Credit is one way to give needed financial power to Black women who are providing childcare. Through this proposed Child Tax Credit, Black kinship networks will receive more recognition in the tax code and legal system.


[1] See, Dorothy A. Brown, The Whiteness of Wealth: How the Tax System Impoverishes Black Americans—and How We Can Fix It, 18 (2022).

[2] See id. at 21 (noting that tax laws are “designed with white Americans in mind”).

[3] See generally Nyamagaga R. Gondwe, The Tax-Invisible Labor Problem: Care Work, Kinship, and Income Security Programs in the Internal Revenue Code, 102 B.U.L. Rᴇᴠ.2389, 2396 (2022).

[4] See generally id.

[5] See generally id.

[6] See id. at 2400 (One 2020 study found that “women perform unpaid household and care work amounting, on average, to 5.7 hours per day compared with 3.6 hours for men …  [and] women who are in the paid labor force full-time … spend an average of 4.9 hours per day on unpaid household and care work, compared with 3.8 hours for their male counterparts.”).

[7] See id. at 2394 (“The women who perform uncompensated care labor cannot count it toward social security retirement contributions or income security tax credits because the labor does not generate a market wage.”).

[8] See generally Gondwe, The Tax-Invisible Labor Problem, supra note 3, and Julia J. Eger, Legally Recognizing Fictive Kin Relationships: A Call for Action, American Bar Association (Mar. 1, 2022), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/january-december2022/fictivekin/ (describing how fictive kin relationships is one that a child has with “an individual who is not related by birth, adoption, or marriage […] but who has an emotionally significant relationship with the child.”).

[9] See generally History of Taxes, The Tax Found., https://taxfoundation.org/taxedu/educationalresour-ces/primer-history-of-taxes/ (last visited Dec. 15, 2023) (noting that the ratification of the 16th amendment in 1913 allowed the federal government to levy individual and business income taxes).

[10] See generally Brown, The Whiteness of Wealth, supra note 1, at 143.

[11] Id. at 142-47.

[12] Id.

[13] Id. at 52.

[14] Id. at 154.

[15] Id. at 155.

[16] Id. at 154.

[17] Id.

[18] See generally Gondwe, supra note 3, at 2397 and Eger, supra note 7.

[19] See Gondwe, supra note 3, at 2397 (describing the care work that is shared among Black women in BKNs and how these networks have been shown to “reduce mortality risks and stress and anxiety, to improve individuals’ standard of living, and to assist with prisoner reintegration.”).

[20] See generally id.

[21] Id. at 2399.

[22] Id. at 2403.

[23] See id. at 2410.

[24] See Jacob Goldin & Ariel Jurow Kleiman, Whose Child Is This? Improving Child-Claiming Rules in Safety-Net Programs, 131 Yale L.J. 1719, 1729-31 (2022).

[25] See Gondwe, supra note 3, at 2413.

[26] See Goldin & Kleiman, supra note 21, at 1726.

[27] Id. at 1723.

[28] See Brown, The Whiteness of Wealth, supra note 1, at 57.

[29] See generally Goldin & Kleiman, supra note 21, at 1724.

[30] See, id. at 1730.

[31] Id.

[32] See, Brakeyshia R. Samms, Hidden in Plain Sight: Race and Taxes in 2023 State Policy Debates, 110 Tax Notes State 277, 278 (2023).

[33] Goldin & Kleiman, supra note 21, at 1724.

[34] Id. at 1730-31.

[35] See Asha Glover, Child Tax Credit Debate Threatens Year-End Tax Package, Law360 (Oct. 16, 2023), https://www.law360.com/tax-authority/articles/1732626/print?section=tax-authority/federal.

[36] See Chuck Marr, et al., Any Year-End Tax Legislation Should Expand Child Tax Credit to Cut Child Poverty, Ctr. on Budget and Pol’y Priorities (Nov. 7, 2023).

[37] See Glover, supra note 32 (explaining that Democrats and Republicans in the House would like to see a version of CTC expansion).

[38] See Goldin & Kleiman, supra note 21, at 1736.

[39] Id. at 1742.

[40] See Eger, supra note 8.

[41] Id.

[42] Id.

[43] Goldin & Kleiman, supra note 21, at 1741.

[44] Id.

[45] Marr, et al., Any Year-End Tax Legislation Should Expand Child Tax Credit, supra note 33.

[46] Samms, supra note 29, at 277.

[47] See Glover, supra note 32.

[48] See Ariel Jurow Kleiman, et al., The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws, Nat’l Women’s Law Ctr. (2019).

[49] See Emily Satterthwaite, Beyond Audits: Investigating the Role of Race in Various Tax Enforcement Settings, Tax Jotwell (Oct. 25, 2023).

[50] See Hadi Elzayn, et al., Measuring and Mitigating Racial Disparities in Tax Audits, SIEPR, at 2 (2023).

[51] Id.

[52] Goldin & Kleiman, supra note 21, at 1748.

[53] Glover, supra note 32.

[54] Jarrell Dillard & Augusta Saraiva, Spiking Child Poverty Forces US States to Fill in Federal Void, Bloomberg Tax (Oct. 2, 2023).

[55] Id. (discussing how researchers at Washington University found this statistic and that child poverty costs are around 5.4% of the US GDP).

[56] See Gondwe, supra note 3, at 2398.

Tagged , ,

Politicized Fear: Reclaiming Sensibility toward Mass Incarceration in the United States

By Elle Trident (read PDF version)

I.              Introduction

The United States, a country that prizes its principles of life, liberty, and the pursuit of happiness, is supposed to be a land of opportunity. However, despite being home to just five percent of the world’s population, one in four of its souls are incarcerated. Although alarming and seemingly contradictory to their purported ideals, the majority of Americans do not appear outraged by these numbers. On the other hand, many scholars are proposing questions about the efficacy and fairness of the United States’ current criminal justice practices. This evaluation delves into extensive research on both views—the American public’s and such scholars’ —to locate the disconnect between them. This will be done cooperatively through the exploration of sociological, historical, and statistical perspectives to identify the culprit behind American mass incarceration. Through this analysis, one primary question will be repeated: Are these punitive measures truly serving the broader goals of society, or is there injustice embedded in this system?

II.           Sociological Perspective

            Sociologists assert that despite political attitudes, any discussion about punishment serves to explore a social institution’s social functions, entitling them to a voice in this conversation. Consequently, it is a common claim amongst this community[1] that penal policy has effectively no correlation to crime trends.[2] As Michel Foucault, a historical influence on political philosophy and sociology, asserts, “[p]risons do not diminish the crime rate: they can be extended, multiplied or transformed, the quantity of crime and criminals remains stable or, worse, increases….”[3] In a more modern observation, sociologist and penal historian Ashley Rubin  concurs, “[t]he biggest lesson of prison history is how prisons keep failing us and yet we keep using them anyway.”[4] Though their analyses were made decades apart, both Foucault and Rubin are certain that prisons are not an effective method of reducing crime. This may seem contradictory; after all, if incarceration is not related to crime, what could it possibly be an indicator of? This familiar objection is championed by politicians in favor of strengthening law and order, a crowd that sociologists have boldly accused as the culprit behind imprisonment rates. They have held that rates of incarceration are far more reflective of political processes and social disorder than true criminality, questioning the justifiability of the entire punitive system. Upon review, mass incarceration has nearly no sociological scholarship granting it legitimacy,[5] let alone recognizing any crime reduction effects it may have.[6]

Political popularity for a strong punitive system has lasted decades due to its social roots. Unlike most policies and laws, David Green, an English philosopher and political reformer, defines incarceration as a “process conditioned by all the insecurities, pressures, and disembedding social effects.”[7] In other words, due to the social instability that was brought on merely by the idea of crime, politicians used equally radical social strategies, such as the “terror management theory,”[8] to respond. However, reassuring and comforting irrational feelings—such as those experienced in the terror management theory—nearly always require an irrational response. The great danger, sociologists warn, is when this tactic becomes politicized, as it has with incarceration.[9] Although these strategies are now considered normative politics, these social manipulations were weaponized only about fifty years ago during a movement called the War on Drugs[10].

III.        Historical Perspective

             In the name of combating drug abuse, an initiative was launched that, over the decades, mutated and manipulated the American public’s attitude toward its penal system. In the 1960s, the United States experienced a surge in both poverty rates and crime statistics.[11] Several presidencies were dedicated to quashing this spike, utilizing extreme measures such as dumping millions of dollars into law enforcement and creating punitive agencies within the executive branch to regain social stability. However, no president approached the issue with as much gusto as President Ronald Reagan. President Ronald Reagan and First Lady Nancy Reagan made history when they enflamed bipartisan terror throughout the country, blaming America’s issues largely on drugs.[12] Nancy Reagan famously warned that “[d]rugs take away the dream from every child’s heart and replace it with a nightmare,”[13] a chilling conviction felt by the entire middle class. Some politicians would argue this fear was brought on by incredibly high crime rates, not the White House. For instance, businessman and politician Nelson Rockefeller insisted, “[t]he people want this nightmare ended. The preservation of our society and individual security demand it.”[14] Both Reagan and Rockefeller promoted the new legislation as a bipartisan protection for Americans. After all, how could Congress so willingly support such legislation if it were based entirely on ungrounded or even questionable facts? Regardless, the American people were far more concerned about their “child’s heart” than stabilizing the facts.[15] This nationwide attitude of fear proposed an interesting challenge to legislators in the upcoming midterm elections: to craft the most draconian regulations to appease public apprehension. Therefore, many politicians relied on favoring power displays over a constructive drug policy in order to secure their re-election.[16] Between the dominant pressure from the executive branch and a public overcome with angst, Congress had little chance of producing a humane and effective solution to the drug epidemic.

            Congress’s bipartisan surrender to his law-and-order rhetoric gave President Reagan extensive authority to reshape the punitive process without much objection. Though President Reagan was responsible for many alterations to the punitive system—including the Omnibus Reconciliation Act of 1981,[17] the National Drug Policy Board,[18] the Comprehensive Crime Control Act of 1984,[19] the Corrections Corporation of America,[20] Reagan’s Military Cooperation with Civilian Law Enforcement Agency Act,[21] among others[22]—the most significant policy change during his Presidency can be found in the Anti-Drug Abuse Act of 1986 and the Anti-Drug Abuse Act of 1988.[23] The Anti-Drug Abuse Act is still regarded as the most significant piece of legislation addressing punishments for drug use. Even President Nixon, who, prior to Reagan, was deemed the harshest critic of drug possession, did not dare penalize through such ruthless measures.[24] This historic act established sentencing minimums for drug users, instructed military involvement in drug prevention, augmented law enforcement authority, accepted the death penalty as a reasonable punishment, and authorized $4.5 billion—which would be nearly $12 billion today—to carry out these provisions.[25] This was and still is the most aggressive domestic drug policy the United States has ever seen.

            Perhaps the most questionable observation of the Anti-Drug Abuse Act of 1986 would be that in almost every section of this 194-page long law, you can find the words “penalty” and “enforcement” listed clearly while never locating the words “prevention” or “health.”[26] In fact, neither Act, a combined 560 pages, ever discusses “recovery” at all, despite its necessity, according to sociological and medical professionals.[27] One may ask, if the government truly wanted to stop drug possession, why were these health perspectives not considered? The answer that the data suggests is that Congress did not prioritize—or even care about—curing the drug epidemic; instead, it cared aboutimplementing the terror management theory.[28]  As mentioned, these bills were passed relatively swiftly, with representatives passing additional amendments to compete for the title “Toughest on Drugs.”[29] Only weeks after the Anti-Drug Abuse Act passed, then-Rep. Charles Schumer reflected that, “[m]aybe [they] had the wrong solutions, but not the wrong problem.”[30] Even on the other side of the aisle, Rep. Robert H. Michel agreed, stating that, “[i]f we had more time we could have considered [the harsh provisions], we just had no time.”[31] By passing this legislation, Congress answered the call to action, but quickly realized it had only worsened the situation.

            While Congress was grappling with the realities of its new legislation, President Reagan was publicly praising the dramatic increase in convictions and average sentences sweeping across the nation. As the years progressed, he would continue to applaud himself for filling over half of the federal district court positions, three associate justice positions, and one chief justice position during his presidency, all of whom could enforce his punitive regime.[32] A growing “moral majority”[33] commended the President’s actions and messages, particularly those declaring commitment to the rights of law-abiding citizens.[34] They cheered as President Reagan continued his push towards overcrowding prisons, exploiting prisoners for labor, and cutting medical and social services in prison.[35] Under Reagan’s lead, America had agreed on the social and legal demonization of drug users and prisoners altogether. In 1987, the New York Times reported that “[President Reagan] has been handed an enormous opportunity, perhaps the greatest … to leave his mark on the political and legal life of the country.”[36]

            Many presidencies continued to utilize Reagan’s terror management tactics, encouraging the steep climb of incarceration. Although it took decades for the War on Drugs propaganda to wear off, presidents finally began to agree with the sociologists’ analysis that prisons are expanding disproportionately to the scale of crime, achieving minimal progress. In 2015, President Barack Obama toured a correctional facility in Oklahoma to have personal conversations with some of the inmates, specifically drug offenders. Following this meeting, a monumental shift in criminal justice policy occurred. Soon after, a documentary was produced about this experience, the reduction of minimum sentences was adopted, and employment and voting rights were restored to prior convicts[37]. It marked the first presidency that put our penal system in the limelight and sparked the discussion that sociologists and philosophers had been prompting for years: the paradigm switch to governing through crime. For the first time in history, a sitting U.S. president visited a federal prison to confront the unjust system orchestrated by its own democracy. While he was there, President Obama relayed a symbolic message pertaining to this shift:

We have a tendency sometimes to almost take it for granted or think it’s normal. It’s not normal. It’s not what happens in other countries. What is normal is teenagers doing stupid things. What is normal is young people making mistakes. And we’ve got to be able to distinguish between dangerous individuals who need to be incapacitated and incarcerated versus young people who, in an environment in which they are adapting but if given different opportunities, a different vision of life, could be thriving the way we are.[38]

IV.         Statistical Perspective

Over the years, the sociologists’ predictions continued to come to fruition.[39] Crime would ultimately remain steady[40] while incarceration would grow exponentially, doubling during Reagan’s presidency.[41] The leap in drug offenses was unprecedented, tripling under Reagan’s administration.[42] Taxpayers began to feel the financial impact of the historic jump in quantity of prisoners.[43] Correctional expenditures also doubled during Reagan’s time in office at a rate that would remain steady for over twenty years.[44] Today, the U.S. government spends $80 billion on the incarceration system— $182 billion when accounting for policing, legal services, and other services[45]—every year with each prisoner costing up to hundreds of thousands of dollars to house.[46] It is common practice for states to spend money outside of their allotted budget to support these overcrowded institutions.[47]  Meanwhile, private prisons are able to make a dollar off of both the taxpayer and the inmate by housing the incarcerated and forcing them into strenuous and grueling labor.[48] Due to the issue of prison overcrowding, the U.S. government has been inclined to look the other way whenever issues of workers’ rights or rotten food have arisen from the $70 billion private prison industry.[49] The circumstances instated by the Reagan administration’s policies, as predicted, were neither effective nor sustainable. Instead of a reduction in crime, the numbers prove America saw a reduction in the economic and psychological health of urban communities.[50]  

            While those numbers are uncomfortably high, improvements have been made since President Obama’s administration. Since mandatory minimum sentences were lowered drastically in 2010, incarceration rates have decreased by over twenty-five percent. In conjunction with the reduction in minimum sentences, robberies and property crimes are down to a quarter of what they were in 2000.[51] Regardless of these numbers, some politicians are unwilling to give up on their law-and-order rhetoric and terror management policies.[52] Because of this, Americans are unable to fully overcome the contagion of fear that has been passed down since President Reagan. In 2021, over seventy percent of Americans felt that the United States faced serious crime problems, believing they grow worse every year. Nearly half also voiced that the criminal justice system in America needs to intensify its toughness. In response, the defensive measures that Americans have taken to improve their security have only increased.[53] As mentioned, these fears are in no correlation—and rather in contradiction—with the crime statistics. This fear has clearly never been anchored in logic, but nevertheless, Americans are still vulnerable to its weaponization.

            Under President Obama’s leadership, a stark transformation occurred as public perception shifted dramatically, unveiling a hidden humanitarian crisis nestled within the confines of the criminal justice system. While Obama’s role was historic, it will require more persistence from the American government and public to make criminal justice policy changes to ensure longer-lasting progress toward a freer America. Policy change, such as the Fair Sentencing Act of 2010, requires overwhelming public support from the American people to be written into law.[54] However, that cannot happen if Americans accept complacency or embrace terror management methods. Even today, nearly half of the federally incarcerated individuals in America are imprisoned on drug offenses and around one million drug arrests occur yearly.[55] Although improvements are visible, these numbers still cast a glaring spotlight on the credibility of our criminal justice system, provoking a systemic change.

V.            Conclusion

            Judicial discretion. Urban and racial targeting. Three strikes laws. These are just a few of the structural policies upholding today’s mass incarceration.[56] Addressing each of these individually pales in comparison to the profound impact that can be achieved when the American public denounces the fear-mongering tactics, allowing the country to truly grasp the depth and urgency of this situation. This analysis may have failed to address specific policies to complain to your senator about, but this assessment was conducted delicately not only due to the nature of the topic but also because of the attitude necessary to proceed. America must first acknowledge that this issue of mass incarceration is a symptom of a widespread fear epidemic. Through this fear, the War on Drugs constructed a political dungeon that has taken liberty hostage for decades. The progression through time cannot merely result in fearful complacency; it must trigger activism. President Reagan rightfully defended the need for law and order in the United States, yet he openly omitted due recognition of the intrinsic human element in this endeavor. Sociology is the compass that guides the scales of justice, revealing the intricate web of human interactions that underlie law and order. By listening to the experts in this field, future statistics may finally reflect a safer and freer country. Like the beacon of hope she is, America may then restore her allegiance to freedom and equality once again.

I believe this because the source of our strength in the quest for human freedom is not material, but spiritual. And because it knows no limitation, it must terrify and ultimately triumph over those who would enslave their fellow man.[57]


[1] Sociologists, historians of thought, and other scholars of social functions.

[2] David Garland, Theoretical Advances and Problems in the Sociology of Punishment, 20 Punishment & Soc’y, 8, 15-16(2017).

[3] Michael Foucault, Discipline and Punish: The Birth of the Prison, 11 Eighteenth-Century Stud. 509, 247(1978).

[4] Greg Miller, The Invention of Incarceration, JSTOR Daily (Mar. 18, 2022), https://daily.jstor.org/the-invention-of-incarceration/.

[5] There are minimal conservative voices in this field in today’s age. Punishment scholarship holds a progressive or liberal view consistently. Even private prisons are widely held in a negative view, except to their conservative policymakers.

[6] Garland, supra note 2 at 18.

[7] David A. Green, ‘Liberty, Justice, and All: The Folly of Doing Good by Stealth’, in Albert Dzur, Ian Loader, and Richard Sparks (eds), Democratic Theory and Mass Incarceration, Studies in Penal Theory and Philosophy (New York, 2016; online edn, Oxford Academic, 20 Oct. 2016), https://doi-org.yale.idm.oclc.org/10.1093/acprof:oso/9780190243098.003.0009.

[8] Id. (The “terror management theory “[s]uggest[s] that one’s primordial instincts kick in to defend one’s worldview in the face the existential threat posed by a reminder of one’s mortality.”).

[9] Id.

[10] Elizabeth Hinton, From the War on Poverty to the War on crime: The making of mass incarceration in America, 6 (2016).

[11] Id. at 6-7.

[12] Id. at 307.

[13] First Lady Nancy Reagan, Address to the Nation on the Campaign Against Drug Abuse (Sept. 14, 1986) https://www.reaganlibrary.gov/archives/speech/address-nation-campaign-against-drug-abuse (This is just one of the many eyebrow-raising claims made by Nancy Reagan in the “Address to the Nation on the Campaign Against Drug Abuse” on September 14, 1986).

[14] Governor Nelson A. Rockefeller, Remarks of Governor Nelson A. Rockefeller at Virginia State Chamber of Commerce Dinner at Holiday Inn (1973).

[15] President Ronald Reagan, Remarks at the White House Briefing on Proposed Criminal Justice Reform Legislation (Oct. 19, 1987) , https://www.reaganlibrary.gov/archives/speech/remarks-white-house-briefing-proposed-criminal-justice-reform-legislation.

[16] Brooke Intlekofer, Anti-Drug Abuse Act of 1986, The Cong. Project (May 4, 2018), https://www.thecongressproject.com/anti-drug-abuse-act-of-1986.

[17] Bolstered law enforcement spending and paid for it by reducing social program funding, eliminating sixty-two programs and consolidating fifty-seven more.

[18] Brought together cabinet members, such as secretaries of Defense and State and the Attorney General, to implement policy and make decisions about local law enforcement.

[19] The first legislation encompassing Reagan’s War on Drugs; was passed 406-16. Essentially rid of the federal parole system and introduced many penal strategies that failed during Nixon’s and Ford’s administrations.

[20] Introduced privatized prisons, opening the first private prison facility in Texas.

[21] Empowered local police forces by granting them access to the defense agency’s research, weaponry, intelligence, and military bases’ manpower to help prohibit drugs.

[22] Not mentioned: National Narcotics Border Interdiction System, Armed Career Criminal Act, Operation Pipeline, and amended Nixon’s Comprehensive Drug Abuse Prevention and Control Act of 1970 to make police departments more profitable from civil forfeitures.

[23] See 25 U.S.C. §§ 1001-15007 and 21 U.S.C. §§1001-9309.

[24]  Hinton, supra note 10 at 317-22.

[25] Sophia Scaglioni, We the Prisoners: Considering the Anti-Drug Act of 1986, the War on Drugs and Mass Incarceration in the United States, The Brown Univ. of Phil & Econ. 41, 42 (2021).

[26] 25 U.S.C.§§1357a, 1451a-1451b, 6053c, 12012b-12012e.

[27] Scaglione, supra note 25, at 45.

[28] Peter Kerr, Anatomy of the Drug Issue: How, After Years, It Erupted, N.Y. Times (Nov. 17, 1986) (Rep. Brian Donnelly said the floor had turned into “a mob mentality in there,” and Rep. Patricia Schroeder diagnosed it as a “political ‘piling on’ right before an election.”).

[29] Id. (Roger Ailes, a Republican television consultant, told the New York Times that “there is a growing feeling that you cannot be too tough on drug pushers.” He also confirmed that voters would celebrate this push.); Intlekofer, supra note 16.

[30] Kerr, supra note 28.

[31] Id.

[32] S. Goldman, Reagan’s Judicial Legacy: Completing the Puzzle and Summing Up, Judicature, 72(6) (1989), https://scholarworks.umass.edu/polsci_faculty_pubs/25/.

[33] Scaglioni, supra note 25, at 46 (A political group that was comprised of Republicans and Christians, mainly evangelicals, promoting “traditional values” after claiming to be overlooked by previous administrations).

[34] Hinton, supra note 10 at 270 (Many reviews have shown that this commitment excluded many law-abiding citizens and their communities).

[35] Scaglioni, supra note 25, at 46.

[36] Tony Platt, U.S. Criminal Justice in the Reagan Era: An Assessment, Crime and Social Justice, no. 29, 64 (1987), https://www.jstor.org/stable/29766345 (The New York Times reported this immediately following the resignation of Justice Powell, granting Reagan another Supreme Court nomination).

[37] Ayesha Rascoe, Obama, in Prison Documentary: U.S. Legal System Has Been ‘Unjust.’ Reuters (Sept. 22, 2015), www.reuters.com/article/idUSKCN0RM1H3/.

[38] President Barack Obama, Remarks by the President after Visit at El Reno Federal Correctional Institution (June 16, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/07/16/remarks-president-after-visit-el-reno-federal-correctional-institution.

[39] It should be recognized that many people view numbers as dry and purely logical. That numbers themselves, simply a range of years or a percentage, hold no emotion or calling, only data. However, these numbers hold unassailable power and authority. They demand attention, commanding us to confront the stark realities they represent.  Here, numbers serve as a form of digestible evidence to assist in understanding the magnitude of mass incarceration in America yesterday, today, and in the days to come.

[40] The United States wouldn’t experience a notable decline until after 2010.

[41] Joshua Vance, The Growth of Prisons and Economic Circumstances Surrounding Mass Incarceration in the United States, Kalamazoo College: Department of Economics and Business, Economics and Business Symposium (2018),  https://cache.kzoo.edu/handle/10920/43512 (The incarceration population stood at just under 500,00 people, growing to over 1.1 million people by 1990. From 1985 to 1995, the U.S. experienced an incarceration population growth of 85% annually. Since 1990, that number has doubled with the U.S. housing 2.2 million incarcerated).

[42] Ashley Nellis, Mass Incarceration Trends, The Sentencing Project (Jan. 25, 2023), https://www.sentencingproject.org/reports/mass-incarceration-trends/#footnote-ref-17 (In 1980, the incarceration rate for drug offenses was under 20 people per 100,000. By 1990, the rate had increased to about 100 per 100,000 people, nearly double the rate of any other individual offense at the time).

[43] Vance, supra note 41.

[44]  Vance, supra note 41 (From 1982 to 2012, criminal justice expenditures (adjusted for inflation) have grown by 310%.).

[45] Mass Incarceration: The Whole Pie 2024. Pʀɪsᴏɴ Pᴏʟɪᴄʏ Iɴɪᴛɪᴀᴛɪᴠᴇ (2024), www.prisonpolicy.org/reports/pie2024.html (In 2012, the expenditures totaled to $265 billion. Sawyer, Wendy, and Peter Wagner).

[46] Christian Henrichson, et al. The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration. VERA Inst. of Justice (May 2015) www.vera.org/downloads/publications/price-of-jails.pdf (In 2014, Johnson County, Kansas was recorded for charging every resident $82 per year for their jail. Altogether, it cost a county of 574,272 people over 48 million dollars in just one year).

[47] Economics of Incarceration. Pʀɪsᴏɴ Pᴏʟɪᴄʏ Iɴɪᴛɪᴀᴛɪᴠᴇ (Nov. 2023.) https://www.prisonpolicy.org/research/economics_of_incarceration.

[48] Wendy Sawyer, How Much Do Incarcerated People Earn in Each State? Pʀɪsᴏɴ Pᴏʟɪᴄʏ Iɴɪᴛɪᴀᴛɪᴠᴇ, (Apr 2017), www.prisonpolicy.org/blog/2017/04/10/wages/. About 4,000 private companies make a profit off mass incarceration. Additionally, within these private companies, the average incarcerated worker’s daily wage is $0.86.

[49] Vance, supra note 41.

[50] Hinton, supra note 10 at 310 (The highest level of monitored involvement in drug possession and trafficking. Urban, lower-class areas could not afford the protection and were the targeted group of Reagan’s drug enforcement teams).

[51] Without any proven correlation (or lack thereof) to incarceration decline.

[52] Nellis, supra note 42.

[53] Megan Brenan, Crime Fears Rebound in U.S. After Lull During 2020 Lockdowns, Gallup (Nov. 10, 2021), news.gallup.com/poll/357116/crime-fears-rebound-lull-during-2020-lockdowns.aspx (Methods include carrying a knife or gun, keeping a guard dog, purchasing pepper spray, installing alarms, etc.).

[54]  Green, supra note 7.

[55] See BOP Statistics: Inmate Offenses, Fᴇᴅ. Bᴜʀᴇᴀᴜ ᴏғ Pʀɪsᴏɴs, www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.

[56] Hinton, supra note 10 at 259, 326.

[57] Ronald Reagan, Remarks at the Annual Convention of the National Association of Evangelicals in Orlando, FL. (Mar. 1983), https://www.reaganlibrary.gov/archives/ speech/remarks-annual-convention-national-association-evangelicals-orlando-fl.

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How Online Communication Platforms Facilitated Human Trafficking and Rethinking the Websites as Hosts theory

By Aamy Kuldip (view PDF version)

I. Introduction

Human trafficking is a horrific crime that involves stealing one’s freedom for profit.[1]Victims of human trafficking may be tricked or forced into providing commercial sex or illegal labor, and are often left extremely traumatized.[2] Online communication platforms, such as Facebook, Twitter, and Craigslist, enable human trafficking efforts by providing easy access to personal information that can be used by traffickers to profile and recruit potential victims.[3]The internet further facilitates human trafficking on a global scale increasing the scope of advertising, recruitment, coordination, or control.[4]The potential global scope of internet-facilitated human trafficking greatly complicates criminal and civil investigations and makes the coordination of law enforcement efforts extremely challenging due to evidentiary issues.[5] In its annual Federal Human Trafficking Report, the Human Trafficking Institute found that eighty-three percent of active 2020 trafficking cases involved online solicitation.[6] Specifically, fifty-nine percent of victims in active sex trafficking cases and sixty-five percent of underage victims recruited online in 2020 active sex trafficking cases occurred on Facebook.[7] As an example, a seventeen-year-old girl ran away from her home in North Carolina to be with a thirty-two-year-old man whom she met on Facebook.[8]After chatting over Facebook Messenger, he convinced the victim to meet him in person.[9] Afterwards, he took the victim to a hotel, where she was trafficked and transported to Florida along with three other victims.[10]

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LGBTQ+ Inclusive Education: Developing a National Program for Kindergarten through 12th Grade Students

By Emily Harris (read PDF version)

I. Introduction

Currently, numerous states around the country are proposing and passing legislation commonly referred to as “Don’t Say Gay/Trans” bills.[1] These bills often restrict kindergarten through twelfth  grade school curriculum, prohibit the discussion of LGBTQ+ topics in the classroom, and mandate that a school notify parents if a student is dealing with their gender or sexual identity.[2] State legislatures justify these actions by stating they are giving parents more control and authority over their children’s education, which they have the right to as the parents of these students.[3] To the contrary, some states have done just the opposite and instead have passed LGBTQ+ inclusive curricular legislation that requires instruction of LGBTQ+ topics in classroom education.[4] These education policies have become a hotly contested partisan issue, driving Red states and Blue states further apart in classroom education.[5]

This paper argues for requiring schools to implement an LGBTQ+ inclusive curriculum. An LGBTQ+ inclusive education allows for all students to learn and understand gender identity[6] and sexual orientation.[7] This model is not only beneficial to students’ educational experience, but it is a public health imperative that helps combat the staggering rates of LGBTQ+ youth homelessness, mental illness, and suicide.[8]  The current health disparities are stark. LGBTQ+ youth are far more likely than their cisgender and heterosexual peers to experience these negative health conditions due to the discrimination and rejection they face.[9] The latest data shows that nearly half of LGBTQ+ youth in school have considered suicide.[10] It is imperative to do everything we can to address this mental health crisis.

The first section of this article outlines the history of anti-LGBTQ+ curriculum, the current push by states to pass “Don’t Say Gay/Trans” bills, and explores actions taken at the federal level so far. The second section of this article explores the current state of LGBTQ+ youth in the United States and the negative impact of anti-LGBTQ+ curriculum. The final section of this article explores the LGBTQ+ inclusive curriculum mandated by some states and proposes federal legislation to mandate an LGBTQ+ curriculum that will allow all students to see themselves and their families reflected in a respectful and inclusive way.

II. Anti-LGBTQ+ Curriculum- From “No Promo Homo” to “Don’t Say Gay”

Anti-LGBTQ+ curriculum is not a new phenomenon. The first push for exclusionary curriculum laws were the “No Promo Homo” laws of the 1980s and 1990s.[11] These laws arose in response to the HIV/AIDs epidemic and state sanctioned homophobia.[12] States passed “No Promo Homo” laws in fear that any education surrounding LGBTQ+ topics constituted the promotion of homosexuality.[13] In the late 1970s, anti-LGBT advocates, such as Anita Bryant and John Briggs, pushed for “Save Our Children” campaigns.[14] These campaigns claimed that “homosexual schoolteachers” presented a danger to children and were “dangerous role models” who would impose their lifestyle onto innocent children.[15] These efforts by Bryant and Briggs have led to a public focus on keeping homosexuality out of schools.[16] Some states have repealed their “No Promo Homo” laws since their implementation.[17] Yet, several still remain on the books.[18] States that currently have active and effective “No Promo Homo” laws are Texas, Oklahoma, Louisiana, and Mississippi.[19]

The “No Promo Homo” laws can restrict any representation of homosexuality, restrict positive representation of homosexuality, or affirmatively require instruction that portrays homosexuality in a negative light.[20]  In general these exclusionary curriculum laws only exclude the inclusion of LGBTQ+ topics in sexual health education.[21] However, a consequence of these laws is that educators may avoid including LGBTQ+ topics in other classes as well out of fear of violating these laws.[22] Unfortunately, in the more insidious case of Texas, the law prohibits the instruction of LGBTQ+ topics in both general education programs and in sexual education.[23]

These anti-LGBTQ+ curriculum laws are not a thing of the past. After two decades of advocacy work to repeal state “No Promo Homo” laws, there is a new rise LGBTQ+ discriminatory legislation being introduced across the country.[24] Opponents of LGBTQ+ equality are using exclusionary curriculum bills to push their political agenda.[25] These new efforts by state legislatures to exclude LGBTQ+ topics from the classroom are commonly referred to as the “Don’t Say Gay/Trans” bills by their opponents. Legislatures in Florida, Alabama, and South Dakota have already successfully passed their bills, and they will become law in the upcoming 2022-2023 school year.[26] The “Don’t Say Gay/Trans” bills are not going to stop here. Many other states have similar bills sitting in state legislatures. “Don’t Say Gay/Trans” bills are erupting across the country, all with the intent to censor curriculum.[27] 

The “Don’t Say Gay/Trans” bills are all unique, each carrying different provisions to restrict education on LGBTQ+ topics. The most common provision prohibits classroom instruction on sexual orientation or gender identity.[28] These bills state that instruction on LGBTQ+ topics is not age appropriate for children in certain grades and, therefore, should not be included in their education. Florida and Alabama’s laws specifically state that in certain grades there can be no instruction on LGBTQ+ topics.[29] Students, like Kate from Illinois, worry that placing an age restriction on LGBTQ+ topics “makes it seem as though gender expression and sexuality are issues reserved for ‘adults,’ while there are many students at the school who identify with the LGBTQ+ community.”[30]

Another common provision allows for parents to review the educational materials included in their child’s classes and object or withhold consent to the use of them in the classroom.[31] This provision  does not directly or exclusively target LGBTQ+ topics, but it allows for parents to assert more control over the instruction occurring in their child’s classroom and ensure that their children are not exposed to unapproved content. Parents can use this provision to weed out materials with controversial topics, such as critical-race theory or LGBTQ+ education. Supporters of states’ “Don’t Say Gay or Trans” bills want to prevent teachers from pushing their political views or “trying to indoctrinate kids into being gay.”[32] Meanwhile teachers, like Clinton from Florida, are clear that they are “not teaching kids how to be gay in [the] classroom” but instead are trying “to teach kids to be OK with who they are.”[33]

While these censorship rules are the most common across the numerous “Don’t Say Gay/Trans” bills, other provisions exist that create a hostile school environment by discriminating against LGBTQ+ students. For example, some of these bills include the forced outing[34] of student’s sexual orientation or gender identity to their parents.[35] Louisiana’s bill specifically states that teachers cannot discuss their own sexual orientation or gender identity with students in kindergarten through twelfth grades.[36] Along with the provisions regulating school curriculum and conduct, most of these “Don’t Say Gay/Trans” bills provide a private right of action for parents to sue schools who violate their rights as parents by not adhering to provisions laid out in these bills.[37] This means parents in these states can sue schools and teachers for providing inclusive LGBTQ+ education to their children, potentially chilling the free speech rights of educators in the classroom.

A. Title IX and Anti-LGBTQ+ Curriculum

Courts might decide that the “No Promo Homo” laws and “Don’t Say Gay/Trans” bills violate Title IX. Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education programing or activity receiving federal financial assistance.”[38] No case has ruled yet that Title IX covers discrimination based on sexual orientation or gender identity. However, a recent case, Bostock v. Clayton County, held that sex discrimination under Title VII included discrimination based on sexual orientation or gender identity.[39] Historically, Title VII and Title IX have been closely linked, so many are inclined to believe that the holding of Bostock would extend to Title IX as well.[40]

Under the previous administration, Secretary of Education Betsy DeVos rolled back Title IX protections.[41] President Biden has taken a different approach to Title IX and is exploring broadening its scope to protect LGBTQ+ students.[42] Currently, the Department of Education has opened up for public comment a notice of proposed rulemaking to include discrimination based on sexual orientation or gender identity to Title IX’s sex discrimination.[43] If Title IX includes discrimination based on sexual orientation or gender identity, it is possible then that Title IX would protect students from anti-LGBT curriculum laws. However, a Tennessee federal judge temporarily blocked the Biden administration’s guidance on Title IX.[44] Given the connection of Bostock and Title IX, the decision to block the guidance made this judge seem all the more partisan and political.[45] If conservative federal judges continue acting in this manner, it is unlikely that LGBTQ+ students will find protection from anti-LGBT curriculum laws with the courts.

B. Broader Impact of Anti-LGBTQ+ Curriculum

Since the courts have not yet fully responded to the issue of anti-LGBT curriculum laws, the “No Promo Homo” and “Don’t Say Gay/Trans” laws will continue to negatively impact students across America. Many of these laws and bills have purposefully vague language so they end up having further consequences.[46] Vague language means that teachers are unsure as to what is safe to teach, and that parents can sue over a wider range of issues. Schools and teachers are using this wave of discrimination in school to exclude LGBTQ+ topics from instruction even without a state law mandating them to do so, either out of fear or discriminatory animus.[47] Now there are trends of removing “Pride flags and other LGBTQ-affirming symbols from classrooms,”[48] trends of teachers resigning “in protest of anti-LGBTQ policies,”[49] and trends of banning LGBTQ+ books from classrooms and school libraries across the country.[50]

Parents are also using this moment to bully Gay Straight Alliances (GSA) and other comparable clubs, with the purpose of getting them to shut down.[51] GSA creates a safe space for students of all sexualities and gender identities.[52] The Equal Access Act (EAA) guarantees that students at public schools have the right to form GSAs, and GSAs are not allowed to be treated differently from other clubs.[53] The EAA states that

it shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.[54]

In 2011, U.S. Secretary of Education Arne Duncan wrote a “Dear Colleague” letter clarifying that GSAs are protected under the Equal Access Act.[55]

There are no laws or school rules preventing students from running or establishing GSAs, but some schools are making it a requirement to notify and obtain parental consent for students to participate in school clubs and extracurricular activities.[56] This added requirement means students cannot join a GSA without potentially outing themselves to their parents. There have been vitriolic attacks by parents against GSAs stating they indoctrinate students and are run by predators.[57] With GSAs under attack, students are scared.[58] Leif, a student from Washington, has friends who are “very worried about their parents finding out about them doing Safe Place or diversity clubs–they are scared of their parents and having to tell them before they’re ready, then maybe getting kicked out.”[59] Another student, Landon from Minnesota, says the one place he feels at home is his schools GSA club.[60] Unfortunately, with the complaints and hostility directed toward GSA club,, along with the lack of support from the school superintendent, he feels that it is “so much harder to want to wake up and go to school.”[61]

Landon, and many students like him, face bullying as a result of their real or perceived sexuality and gender identity.[62] Landon said he has been pushed, punched, and called homophobic slurs at school.[63] Anti-LGBTQ+ curriculum laws are harmful because they “stigmatize and discriminate against LGBT students” and “create an official climate of discrimination.”[64] This leads to an increase of bullying directed towards LGBTQ+ students and increases the homophobic remarks made by school faculty and staff.[65] In schools with exclusionary curriculum, LGBTQ+ students are less likely to report incidents of harassment.[66] Already, “86% of LGBTQ+ youth report they have been targets of bullying, harassment or assault at school.”[67] While this alone is horrific, these rates of bullying and harassment also “contribute to high rates of absenteeism, dropout, adverse health consequences and academic underachievement.”[68] Children are bullied when they do not present as heterosexual or cisgender to other students.[69] Spencer from Tennessee has a near constant fear of being attacked at school because of his identity.[70] No child should feel this way at school. These fears are only being amplified by exclusionary curriculum laws. When a queer book was banned from his school, Jack, a student from Florida, felt like his “community was under attack, that they were trying to silence LGBTQ+ experiences and voices within our community.”[71] The “No Promo Homo” and “Don’t Say Gay/Trans” laws will increase the bullying LGBTQ+ youth experience.[72] Marcel, a nonbinary high school student from Florida, says that students should not have to be “terrified that you’re going to be harassed and have photos taken of you and be embarrassed and assaulted just because you’re trying to be who you are.”[73] These exclusionary curriculum laws work to push LGBTQ+ youth to the margins of the education system, and this has dangerous consequences.[74]

III. The Public Health Impact for LGBTQ+ Youth

LGBTQ+ youth in America are facing a public health crisis.[75] These youth experience increased rates of homelessness, mental illness, and suicide as compared to their peers.[76] LGBTQ+ youth have these health disparities not due to their sexual orientation or gender identity, but due to how they are treated based on their sexual orientation or gender identity.[77] The statistics and stories of LGBTQ+ youth experiencing homelessness, mental illness, and suicide paint a horrifying picture of what growing up LGBTQ+ can look like.

A. Homelessness and LGBTQ+ Youth

LGBTQ+ youth experience homelessness at rates more than two times that of their peers, and Black[CSF10] [EH11]  LGBTQ+ youth have the highest rates of homelessness.[78] LGBTQ+ homeless youth are more susceptible to abuse, violence, and trauma than non-LGBTQ+ youth who are homeless.[79] Homeless LGBTQ+ youth are more likely to harm themselves or be physically harmed by others, are more likely to be exposed to discrimination or stigma, and are more likely to be forced to have sex or exchange sex for basic needs than non-LGBTQ+ homeless youth.[80] Young LGBTQ+ people become homeless when they experience a lack of support from their families and communities.[81] This lack of support is shown in JoJo’s story.[82] JoJo is a transgender woman, and her family did not accept her when she came out to them.[83] JoJo left home at seventeen and has been homeless ever since.[84] JoJo has been kidnapped, raped, gay bashed, and abused while on the streets homeless.[85] In the years since she has been homeless, JoJo has made efforts to seek employment and get off the streets; however, once employers learn she is transgender and homeless, they are reluctant to hire her.[86] These circumstances have kept JoJo homeless for over five years.[87] JoJo’s story is not unique. Many LGBTQ+ youth have their own similar stories with homelessness.[88]

Evidence shows that “most LGBTQ youth experiencing homelessness have withstood discrimination, bullying, exploitation, and/or violence in their grueling journeys into and through homelessness.”[89] While schools can have services in place to support homeless students, “LGBTQ youth are often hesitant to take added risks by engaging services that are not demonstrably safe and affirming for young people like them.”[90] The more outward support schools can show their LGBTQ+ students, the more likely LGBTQ+ youth will seek out their schools for support when facing homelessness, or other serious health issues.[91]

B. Suicide and LGBTQ+ Youth

Homelessness is not the only health issue LGBTQ+ youth face. Many LGBTQ+ youth also struggle with issues of mental health and suicide.[92] The Trevor Project conducts a national survey yearly on the mental health of LGBTQ+ youth in the United States.[93] The Trevor Project’s 2022 national survey captured the experiences of 34,000 LGBTQ+ youth ages thirteen-twenty-four years old.[94] This survey strived to be inclusive of the individuals’ identities and was the most diverse of The Trevor Projects annual national surveys.[95] As a result, forty-five percent of respondents were LGBTQ+ youth of color, and forty-eight percent were transgender[96] or nonbinary[97] youth.[98] Unfortunately, the report shows that rates of suicidal thoughts have trended upward among LGBTQ+ young people over the last three years.[99] LGBTQ+ youth are more than four times as likely to attempt suicide than their peers.[100] For those ages eighteen-twenty-four years old, thirty-seven percent considered suicide and eight percent attempted suicide.[101] For those ages thirteen-seventeen years old, fifty percent considered suicide and eighteen percent attempted suicide.[102] LGBTQ+ youth are not inherently prone to suicide risk because of their sexual orientation or gender identity but rather placed at higher risk because of how they are mistreated and stigmatized in society.[103]

LGBTQ+ students who reported being bullied in the past year also had three times greater odds of attempting suicide.[104] In a round table discussion of LGBTQ+ youth, many spoke out about their experiences of discrimination and mental health struggles.[105] One girl said of her experience, “we were living in Tennessee and you’re like in seventh grade, you’re not sexual or anything. But you want to hold your girlfriend’s hand. …We got complaints from parents about us. …We were called dykes by teachers. …My girlfriend actually ended up committing suicide….”[106] Children committing suicide due to the intense bullying they experience is, unfortunately, not uncommon.[107] A story that gained national attention was that of Nigel Shelby, who was fifteen when he committed suicide.[108] He experienced ruthless bullying at school because of his sexuality, which led to his depression and his suicide.[109] In the wake of his death, several celebrities spoke out against the hatred Nigel experienced. Still, some in Nigel’s local community posted horrific derogatory comments online regarding Nigel’s sexuality.[110] This attitude highlights how ever-present the hatred towards LGBTQ+ youth can be.

C. Mental Health and LGBTQ+ Youth

Outside of the risk of suicide LGBTQ+ youth face, there are many other mental health problems LGBTQ+ youth are dealing with. Some of the most prominent mental illnesses LGBTQ+ youth experience are anxiety, depression, and substance abuse.[111]

Anxiety is often a normal part of everyday life, but for many it goes beyond temporary worry or fear and interferes with their daily activities.[112] From 2020 to 2022 there has been a five percent increase in LGBTQ+ youth reporting they experience symptoms of anxiety, so that now seventy-three percent of LGBTQ+ young people state they experience symptoms of anxiety.[113] Since school may become a place that causes increased anxiety for students, children may avoid school in an attempt to reduce their anxiety.[114] Low attendance has a range of adverse outcomes, such as social isolation and poor academic performance.[115] Anxiety, like other mental health problems, can lead to further struggles for LGBTQ+ youth.[116]

Depression is a serious mood disorder that “causes severe symptoms that affect how you feel, think, and handle daily activities, such as sleeping, eating, or working.”[117] In 2022, fifty-eight percent  of LGBTQ+ youth reported experiencing depressive symptoms.[118] Depressive symptoms can include feelings of hopelessness and pessimism or difficulty concentrating, remembering, and making decisions.[119] Lesbian, gay, and bisexual youth are more than twice as likely to experience depressive symptoms than their heterosexual peers,[120] and transgender youth are four times as likely to experience depressive symptoms as their cisgender and heterosexual peers.[121] It is important to take symptoms of depression seriously, as depression can often lead to thoughts and attempts of suicide.[122]

Substance abuse refers to the excessive use of drugs in a way that is detrimental to the self, society, or both.[123] Substances that LGBTQ+ youth experiment with include alcohol, marijuana, prescription drugs like Adderall and Xanax, and club drugs like Ecstasy and Methamphetamine.[124] As they cope with stigma, harassment, and even rejection by their families, LGBTQ+ teens are more likely than their non-LGBTQ+ peers to abuse drugs and alcohol.[125] The lack of a support system increases the risk of LGBTQ+ youth facing the challenges of addiction.[126] Like with other health problems, being LGBTQ+ does not cause substance abuse.[127] Instead it is outside factors related to being LGBTQ+, like bullying and rejection, that lead to substance abuse being so prevalent in the community.[128] One LGBTQ+ youth has said that “substances make it easier to forget LGBT teens’ differences…they use them to feel more normal.”[129] Another LGBTQ+ young person said that “I use alcohol in an attempt to briefly forget the self-consciousness that I feel as a part of the gay community. It loosens me up a bit so I am not so worried about things like my appearance [or] what other people think of me.”[130] These attitudes are expressed by many young LGBTQ+ people and have led to substance abuse becoming a public health problem.[131]

Problems of homelessness, suicide, anxiety, depression, and substance abuse can become interrelated.[132] Studies have shown that homelessness and poor mental health are linked for LGBTQ+ youth.[133] This problem is compounded because of the inadequate mental healthcare that exists for LGBTQ+ youth.[134] Members of the LGBTQ+ community may face harassment or lack of cultural competency from mental health care providers.[135] The Trevor Project’s national survey found that sixty percent of LGBTQ+ youth who wanted mental health care in the last year were not able to obtain it.[136] The top three reasons LGBTQ+ youth said they could not access mental health care were due to fear of discussing mental health concerns, concerns with obtaining parental permission, and fear of not being taken seriously.[137] Actions need to be taken to combat these health struggles that LGBTQ+ youth are facing, because the current systems in place are not doing enough.

D. Rejection vs. Acceptance for LGBTQ+ Youth

The main risk factor for all of these health problems is rejection.[138] Rejection can be emotional or physical, from coming out in an unsupportive environment to the bullying and harassment LGBTQ+ youth experience at school.[139] Rejection, from family and community, has harmful effects on LGBTQ+ youth.[140] Anti-LGBTQ+ curriculum laws create an environment of rejection. The bills that mandate teachers to out students’ sexual orientation or gender identity leads to students coming out before they are ready and in an unsupportive environment.[141] Anti-LGBTQ+ curriculum creates schools where the bullying, harassment, and assault of LGBTQ+ students becomes more acceptable.[142]

The only way to combat this public health crisis and prevent children from dying is through acceptance. The more LGBTQ+ youth feel accepted, the less likely they are to suffer from homelessness, suicide, and mental illness.[143] Acceptance for LGBTQ+ youth leads to them being less likely to be depressed, three times less likely to attempt suicide, and less likely to have substance abuse problems.[144] Acceptance can come from LGBTQ+ youths’ families, but community acceptance is also critical[145] The CDC found that, “having a school that creates a safe and supportive learning environment for all students” is important.[146] “For youth to thrive in schools and communities, they need to feel socially, emotionally, and physically safe and supported. A positive school climate has been associated with decreased depression, suicidal feelings, substance use, and unexcused school absences among LGB students.”[147] Schools need to become an institution of acceptance through inclusive education.

The Trevor Project’s latest national survey found that forty-five percent of LGBTQ+ youth considered suicide in the past year.[148]  However, youth who found their school to be LGBTQ-affirming reported lower rates of attempting suicide.[149] Unfortunately, only half of LGBTQ+ youth find their schools to be LGBTQ affirming.[150] One LGBTQ+ youth told her story of not being accepted at school and her lack of acceptance; she said “ I was known as the lesbian and I got death threats, and they had stickers on every door saying that this was a safe place, yet I confronted many teachers and nothing was done until like they started stalking me, and even then, I like hid out. So, I just think that there’s not a lot of support in the school systems.”[151]

There are, however, stories of acceptance. One mom, Lizette Trujillo, drives three hours a day back and forth to her fourteen-year-old transgender son’s school in Tucson, Arizona.[152] Sending Daniel to a school where he is “not ‘othered’” has made him happier.[153] While many parents are pushing for exclusionary curriculum laws, many others recognize just how dangerous these laws are for children. Jen, a mother of a nonbinary sixth grader in Florida, talked about having access to LGBTQ+ materials in school.[154] She said, “[i]t is suicide prevention, in my view. You know, a lot of LGBTQ+ kids aren’t comfortable coming out to their parents, they’re scared. And so having a book like this in the school library is giving them a lifeline.”[155]

IV. Inclusive LGBTQ+ Education and Policy Proposal for a National LGBTQ+ Inclusive Education

LGBTQ+ inclusive curriculum legislation has been passed by six states so far.[156] The most recent state to pass LGBTQ+ inclusive curriculum laws is Nevada, and previous states to pass LGBTQ+ inclusive curriculum laws are California, Oregon, Illinois, Colorado, New Jersey.[157] For younger students, inclusive content can look like lessons about different family structures and acceptance of others who are different from us.[158] Meanwhile, for students in later grades, their curriculum can be more obviously inclusive, such as lessons about LGBTQ+ historical figures or reading books through an LGBTQ+ lens.[159] The states that have already passed LGBTQ+ inclusive curriculum can be a model for what LGBTQ+ inclusive curriculum can look like in other states, and should be used as a model for the federal government to establish national LGBTQ+ inclusive curriculum in kindergarten through twelfth grade education.[160]  

A. Models of LGBTQ+ Inclusive Education

California was the first state to pass LGBTQ+ inclusive curriculum legislation.[161]California’s Fair Education Act “requires that California public schools provide Fair, Accurate, Inclusive and Respectful representations of our diverse ethnic and cultural population in the K-12 grade history and social studies curriculum.”[162] The act specifically states that instruction in social sciences shall include lesbian, gay, bisexual, and transgender Americans, “with a particular emphasis on portraying the role of these groups in contemporary society.”[163] This act strives to ensure that important stories from history are not missing in children’s education.[164]

Nevada passed its LGBTQ+ inclusive curriculum law in 2021.The law “ensures that instruction is provided to pupils enrolled in kindergarten through grade 12 in each public school…on the history and contributions to science, the arts and humanities of… persons of marginalized sexual orientation or gender identity.”[165]Nevada’s law also says that instructional materials used in the classroom must be in line with their LGBTQ+ inclusive policy.[166] The current research shows that “only 15% of LGBTQ+ students in Nevada have access to LGBTQ+-inclusive curriculum” so this law will allow so many more students to see themselves represented in the classroom.[167]

An inclusive classroom is a space where all students feel seen and respected.[168] From using the correct names and pronouns of students to stopping the use of slurs in the classroom, much of it falls on teachers’ efforts to provide an inclusive education.[169] Support for schools and teachers comes from providing faculty and staff with proper training and creating a curriculum standard that is LGBTQ+ inclusive.[170]

One way to have an LGBTQ+ inclusive curriculum is through diversifying books read in the classroom.[171] One reason behind the creation of the “Don’t Say Gay or Trans” laws is that LGBTQ+ topics are not age appropriate for school children.[172] However, there are age-appropriate reading materials for students in all grades.[173] Students in kindergarten and first grade can read pictures books like “All Are Welcome”[174] and “Love Makes a Family,”[175] which are books with simple lessons about inclusion.[176] Students in fourth-eighth  grade can read chapter books like “Rick”[177] and “Hurricane Child,”[178] which feature LGBTQ+ characters around their own age.[179] It is important at this age for children to see themselves reflected in the books they read in order to foster a love of reading.[180] Including books that feature LGBTQ+ characters shows students that they are not alone and that different sexual orientations and gender orientations are normal.[181] As students enter high school, the books they read for class develop their critical reading skills.[182] Some non-fiction books suitable for high schoolers are  “All Boy’s Aren’t Blue”[183] and “We Have Always Been Here,”[184] which are both memoirs from different LGBTQ+ voices.[185] Classics that can also be included in high school literature classes are “The Color Purple”[186] and “The Picture of Dorian Grey.”[187] These pieces of classic literature have many themes to be explored in the classroom and teachers should be allowed to emphasis the LGBTQ+ themes presented in these books.[188]

LGBTQ+ topics in the classroom can also be incorporated into social studies and history courses. There are many historical LGBTQ+ topics that can be included to give a more detailed an inclusive picture of history.[189] American history classes can teach about the history of the gay rights movement.[190] Students should learn about Stonewall, which is said to be the birth of the gay rights movement.[191] Classes need to discuss Harvey Milk, one of the first openly gay elected officials from San Francisco in the 1970s, as well as the White Night Riots, which erupted after his assassination.[192] Teachers should have lessons on the HIV/AIDS epidemic, which destroyed the LGBTQ+ community because of discrimination and inaction from the government.[193] Students also need to hear about the fight for marriage equality, to show how decades of fighting for equal rights can create meaningful change.[194] LGBTQ+ people have existed throughout history and need to be included in history lessons.[195]

Lastly, it is crucial that LGBTQ+ topics are included in sexual education. While sex education in the United States in a wider issue than LGBTQ+ inclusive education, it is important to design sexual education courses to be LGBTQ+ inclusive.[196] LGBTQ+ inclusive sex education is not available for most youth.[197] It is important to have inclusive sex education that provide age appropriate and medically accurate information regarding sexual orientation and gender identity.[198] Inclusive programs can also “incorporate positive examples of LGBTQ individuals, romantic relationships and families” and “emphasize the need for protection during sex for people of all identities.”[199] Sexual education is an vital part of education for young people and needs to be considered when designing LGBTQ+ inclusive curriculum programs.[200]

B. Education Policy in America

Education in America is mostly controlled by the states, as education is not enumerated in the Constitution.[201] Since regulating education is not within congressional power, it primarily falls to state and local governments.[202] State governments typically set overall education standards for their state.[203] Local officials operate schools and implement and enforce state laws and policies.[204] Much of the control over schools and education policy happens at the state and local level.[205] However, the federal government can exercise some influence over educational policy as well.[206]

The bulk of funding for education comes from state and local governments.[207] Federal, state, and local governments provide $764.7 billion to fund K-12 public education, but the federal government provides only 7.9% of the funding.[208] Still, states rely on federal funding for education, so Congress uses its funding of education to enforce laws pertaining to education.[209] The Spending Clause gives Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and the general Welfare of the United States.”[210] Congress cannot require states to adopt educational policies, but it can withhold funding education under their Spending Clause powers.[211]

With the majority of education being under state control, the issue of inclusive curriculum has become a heavily partisan issue.[212] Red states are aiming to pass anti-LGBTQ+ curriculum legislation.[213] Meanwhile, Blue states more inclined to mandate inclusive curriculum standards.[214] This follows the trend of curriculum censorship legislation, like banning Critical Race Theory in schools.[215] It is also part of the many pieces of anti-LGBTQ+ legislation being passed, including anti-trans sports bills and bathroom bans.[216] The latest information shows that over 300 anti-LGBTQ+ bills have been introduced across the country this year.[217] Inclusive curriculum standards will further divide the country and create disparate educational experiences for students.[218] Federal action needs to be taken to regulate education across the country and ensure that all students, no matter their zip code, are afforded inclusive LGBTQ+ education.

Federal action can start with the Executive Office of the President and actions his administration can take. When Governor DeSantis of Florida signed the state’s ‘Don’t Say Gay/Trans” bill into law, the White House and the Biden Administration made it clear that they do not support the “Don’t Say Gay/Trans” laws.[219] In a tweet, President Biden said that his “Administration will continue to fight for the protections and safety [LGBTQI+ kids] deserve.”[220] Presidential support is a nice gesture, but more action needs to be taken to create change.

This summer, President Biden signed Executive Order #14075, Advancing LGBTQI+ Equality.[221] The executive order directed the Department of Education to address “the impacts of state laws that target LGBTQI+ students,” and “charged the department with releasing a sample school policy for achieving full inclusion for LGBTQI+ students.”[222] In the executive order, the President also directed the Department of Education “to establish a new Working Group on LGBTQI+ Students and Families, which will advance policies for states, school districts, and other educational institutions to promote safe and inclusive learning environments in which all students thrive.”[223] With the Department of Education’s swift action for Title IX’s proposed rulemaking, it is clear the Biden Administration sees inclusive education as a serious issue affecting the country.[224] Nevertheless, there is only so much the President can do under his scope of authority, and therefore, there also needs to be congressional action regarding inclusive LGBTQ+ education.

In the past, Congress has used its Spending Clause power to direct educational policy, and it should use it once again to regulate LGBTQ+ inclusive curriculum nationwide.[225] Under the Bush Administration, Congress passed the “No Child Left Behind” program.[226] No Child Left Behind (NCLB) was the main law for K–12 general education in the United States from 2002–2015.[227] The law held schools accountable for how kids learned and achieved, through annual testing, reporting, and improving targets. [228]  States were not required to comply, but would lose their Title I[229] federal funding if they did not implement the standards laid out in the NCLB act.[230]  This forced schools to focus on providing high quality education to disadvantaged kids, particularly English-learners, students in special education, racial minorities, and children from low-income families.[231] Improving kindergarten through twelfth  grade education in America was a bipartisan effort than many found crucial in preventing students from falling behind in school and dropping out.[232]

Later, during the Obama administration, the “Race to the Top” initiative was created.[233] The Race to the Top (RTT) program’s goal was to invest money in schools to create new models to personalize learning for students, so they can engage their interests and take responsibility for their success.[234] The RTT program awarded grants to states that created drastic changes in their education systems through innovation and reform.[235] The aims of RTT were to “achieve significant improvement in student achievements and outcomes, close achievement gaps, and improve high school graduation rates.”[236] To qualify for the grant money, states submitted education plans to the U.S. Department of Education, and several states reform plans have been accepted.[237] Those states have received funding based off their plans.[238] The funding states received goes “directly to implementing the reforms outlined in each state’s plans.”[239]

C. Proposal for LGBTQ+ Inclusive Education

Congress should pass an LGBTQ+ inclusive curriculum program that provides funding to states that implement its standards. The conditional funding used in the No Child Left Behind and Race to the Top programs demonstrate a model for how funding should be implemented.[240] For an LGBTQ+ inclusive education plan to be effective, money would need to be spent on teacher and staff training and on inclusive instructional materials.[241] It is important that teachers, as well as other school faculty and staff, are trained on how to talk and teach about LGBTQ+ topics with a respectful and inclusive lens.[242] It is also necessary to update instructional materials to reflect an LGBTQ+ inclusive attitude, particularly since LGBTQ+ topics have been left out of textbooks for so long.[243] States should need to create plans of reform that would demonstrate how they plan on implementing inclusive LGBTQ+ curriculum in Kindergarten through twelfth  grade. Federal funding would be conditional on schools demonstrating that they were meeting LGBTQ+ curriculum targets. Through congressional funding, LGBTQ+ inclusive education can be implemented nationally.  

V. Conclusion

There is a current push by states for exclusionary curriculum laws, called the “Don’t Say Gay/Trans” laws. These laws focus on restricting the instruction of LGBTQ+ topics in kindergarten through twelfth  grade education and harken back to the “No Promo Homo” laws of the late 20th century. These laws further harm LGBTQ+ youth, who are already facing issues of homelessness, mental illness, and suicide. In order to care for the health and well-being of LGBTQ+ children, there needs to be more acceptance in our communities, starting in our schools. Since the states have deemed this a partisan issue and the courts are stalling progressive change, inclusive LGBTQ+ education is an issue that needs to be handled at the federal level. Inclusive LGBTQ+ curriculum legislation needs to be passed to combat this public health crisis and ensure a bright future for LGBTQ+ youth.


[1] Trudy Ring, 16 States Pushing ‘Don’t Say Gay’ Bills and Censorship Laws Right Now, Advocate (Mar. 29, 2022), https://www.advocate.com/law/2022/3/29/16-states-pushing-dont-say-gay-bills-and-censorship-laws-right-now#media-gallery-media-1; Dustin Jones & Jonathan Franklin, Not Just Florida. More Than a Dozen States Propose So-Called ‘Don’t Say Gay’ Bills, NPR (Apr. 10, 2022), https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills.

[2] Matt Lavietes, As Florida’s ‘Don’t Say Gay’ Law Takes Effect, Schools Roll Out LGBTQ Restrictions, NBC News (June 30, 2022), https://www.nbcnews.com/nbc-out/out-news/floridas-dont-say-gay-law-takes-effect-schools-roll-lgbtq-restrictions-rcna36143; Graciela Gonzales, Lambda Legal Condemns Passage of Florida’s “Don’t Say Gay” Bill, Lambda Legal (Mar. 8, 2022), https://www.lambdalegal.org/news/fl_20220308_ll-condemns-passage-of-fl-dont-say-gay-bill?gclid=EAIaIQobChMI3Ybn-KOt-QIV445bCh3SJAi0EAAYBCAAEgJM7PD_BwE.

[3] Emilie Kao, 3 Reasons Parents Are Absolutely Right To Demand Informed Consent To What Schools Do To Their Kids, The Federalist (Mar. 10, 2022), https://thefederalist.com/2022/03/10/3-reasons-parents-are-absolutely-right-to-demand-informed-consent-to-what-schools-do-to-their-kids/; Maggie Hroncich, More States Move to Affirm Parental Rights in Education, The Daily Signal (Apr. 19, 2022), https://www.dailysignal.com/2022/04/19/more-states-move-to-affirm-parental-rights-in-education/.

[4] Sabia Prescott, Six States Have Now Passed LGBTQ+ Inclusive Curriculum Legislation—Each with a Different Definition of ‘Inclusion,’ New Am. (June 17, 2021), https://www.newamerica.org/education-policy/edcentral/six-states-have-now-passed-lgbtq-inclusive-curriculum-legislationeach-with-a-different-definition-of-inclusion/.

[5] Presidential Results, CNN, https://www.cnn.com/election/2020/results/president (states that have anti-LGBT curriculum laws voted Republican in the 2020 presidential elections and states with inclusive LGBT curriculum laws voted Democrat).

[6] Gender Identity is an individual’s inner sense of being male, female or another gender. Gender identity is not necessarily the same as sex assigned or presumed at birth. Everyone has a gender identity. Glossary of LGBTQ Terms, Lambda Legal, https://www.lambdalegal.org/know-your-rights/article/youth-glossary-lgbtq-terms?gclid=EAIaIQobChMIrNeM9Pnm-AIVGuTjBx2liQxfEAAYASAAEgL80fD_BwE.

[7] Sexual Orientation is an inherent or immutable enduring emotional, romantic, or sexual attraction to other people. An individual’s sexual orientation is independent of their gender identity. Glossary of Terms, HRC Found., https://www.hrc.org/resources/glossary-of-terms.

[8] Bobbi M. Bittker, LGBTQ-Inclusive Curriculum as a Path to Better Public Health, Am. Bar Ass’n (July 5, 2022), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/intersection-of-lgbtq-rights-and-religious-freedom/lgbtq-inclusive-curriculum-as-a-path-to-better-public-health/.

[9] Health Disparities Among LGBTQ Youth, CDC, https://www.cdc.gov/healthyyouth/disparities/health-disparities-among-lgbtq-youth.htm.

[10] 2022 National Survey on LGBTQ Youth Mental Health, Trevor Project (2022), https://www.thetrevorproject.org/survey-2022/.

[11] Clifford Rosky, Anti-Gay Curriculum Laws, 117 Colum. L. Rev. Sidebar 6 (2017), https://columbialawreview.org/content/anti-gay-curriculum-laws/.

[12] “No Promo Homo” Laws: Harmful and Outdated, Equal. Tex., https://www.equalitytexas.org/no-promo-homo-laws/; #DontEraseUs: FAQ About Anti-LGBT Curriculum Laws, Lambda Legal, https://www.lambdalegal.org/dont-erase-us/faq#Q1; Andrew Steinberg, Over the Rainbow: The Future of No Promo Homo Laws in Public Education, Brown Pol. Rev, Apr. 6, 2021, https://brownpoliticalreview.org/2021/04/over-the-rainbow/#:~:text=No%20promo%20homo%20laws%20proliferated%20in%20two%20distinct,conservatives%20lobbied%20for%20anti-gay%20provisions%20in%20the%20curricula (state sanctioned homophobia included the Defense of Marriage Act).

[13] #DontEraseUs: FAQ About Anti-LGBT Curriculum Laws, supra note 12.

[14] Clifford Rosky, Anti-Gay Curriculum Laws, 117 Colum. L. Rev. 1461, 1477-8 (2017), https://columbialawreview.org/content/anti-gay-curriculum-laws/.

[15] Id. at 1478.

[16] Id.

[17] “No Promo Homo” Laws: Harmful and Outdated, Equal. Tex., https://www.equalitytexas.org/no-promo-homo-laws/ (states that repealed their “No Promo Homo” laws are Alabama, Arizona, North Carolina, and Utah).

[18] Id. (states that still have their “No Promo Homo” laws are Louisiana, Mississippi, Oklahoma, and Texas).

[19] Id. (recently, South Carolina law overturned by courts for failing judicial review under the equal protection clause, Utah repealed their state “No Promo Homo” law in 2017, and Arizona repealed their “No Promo Homo” law in 2019); Inclusive Curricular Standards: Representation of LGBTQ+ and Other Marginalized Communities Promotes Student Achievement and Wellbeing, GLSEN, 3, https://www.glsen.org/activity/inclusive-curricular-standards; ; Oliver Haug, Alabama Will No Longer Teach Students That “Homosexual Conduct” Is “Not Acceptable”, them, Apr. 28, 2021, https://www.them.us/story/alabama-no-longer-teach-students-homosexual-conduct-unacceptable (Alabama repealed their state “No Promo Homo” law in 2021).

[20] #DontEraseUs: FAQ About Anti-LGBT Curriculum Laws, supra note 12(Alabama and Texas require that students be taught that being gay “is not a lifestyle acceptable to the general public”); Laws that Prohibit the “Promotion of Homosexuality”: Impacts and Implications, GLSEN (2018), https://www.glsen.org/sites/default/files/2019-12/No_Promo_Homo_2018.pdf.  

 [21] #DontEraseUs: FAQ About Anti-LGBT Curriculum Laws, supra note 12.

[22] Laws that Prohibit the “Promotion of Homosexuality”: Impacts and Implications, GLSEN (2018), https://www.glsen.org/sites/default/files/2019-12/No_Promo_Homo_2018.pdf.

[23] “No Promo Homo” Laws: Harmful and Outdated, Equality Texas, https://www.equalitytexas.org/no-promo-homo-laws/.  

[24] Wyatt Ronan, 2021 Slated to Become Worst Year for LGBTQ State Legislative Attacks as Unprecedented Number of States Poised to Enact Record-Shattering Number of Anti-LGBTQ Measures Into Law, HRC (Apr. 22, 2021), https://www.hrc.org/press-releases/2021-slated-to-become-worst-year-for-lgbtq-state-legislative-attacks.

[25] Kate Sosin, “Don’t Say Gay” Bills Aren’t New. They’ve Just Been Revived, them (Apr. 20, 2022), https://www.them.us/story/history-of-dont-say-gay-bills-lgbtq-education-discrimination (“Don’t Say Gay/Trans” bills along with anti-trans sports legislations are being used to oppress LGBTQ youth at school).

[26] H.R. 1557, 2022 Sess. (Fla. 2022); H.R. 322, 2022 Reg. Sess. (Ala. 2022); H.R. 1012, 97th Leg. (S.D. 2022); Delphine Luneau, Setting the Record Straight as Extremist Politicians in Florida, Alabama and Other States Attempt to Reignite Culture War Attacking LGBTQ+ Youth, HRC (Apr. 14, 2022), https://www.hrc.org/press-releases/education-censorship-book-bans-and-attacking-free-speech-setting-the-record-straight-as-extremist-politicians-in-florida-alabama-and-other-states-attempt-to-reignite-culture-war-attacking-lgbtq-youth (Florida’s law prevents instruction on sexual orientation and gender identity in K-3rd grade and prevents instruction in a manner that is not age appropriate, Alabama’s law is a transgender bathroom ban that also prevents instruction on sexual orientation and gender identity in K-5th grade in a manner that is not age appropriate, and South Dakota’s law censors school curriculum).

[27] S. 613, 2022 Reg. Sess. (Ga. 2022); S. 2024, 2022 Reg. Sess. (Iowa 2022); H.R. 837, 2022 Reg. Sess. (La. 2022); H.R. 1067, 2022 Reg. Sess. (N.C. 2022); H.R. 755, 2022 Reg. Sess. (N.C. 2022); H.R. 616, 134th Gen. Assemb., Reg. Sess. (Ohio 2022); S. 1142, 58th Leg, 2nd Sess. (Okla. 2022); S. 1278, 2022 Reg. Sess. (Pa. 2022); H.R. 800, 112th Gen. Assemb., Reg. Sess. (Tenn. 2022).

[28] Some bills that include this provision are H.R. 322, 2022 Reg. Sess. (Ala. 2022); H.R. 1557, 2022 Sess. (Fla. 2022); S. 1278, 2022 Reg. Sess. (Pa. 2022); H.R. 755, 2022 Reg. Sess. (N.C. 2022).

[29] H.R. 322, 2022 Reg. Sess. (Ala. 2022); H.R. 1557, 2022 Sess. (Fla. 2022).

[30] Delphine Luneau, Education Censorship, Book Bans, and Attacking Free Speech: Setting the Record Straight as Extremist Politicians in Florida, Alabama and Other States Attempt to Reignite Culture War Attacking LGBTQ+ Youth, HRC (Apr. 14, 2022), https://www.hrc.org/press-releases/education-censorship-book-bans-and-attacking-free-speech-setting-the-record-straight-as-extremist-politicians-in-florida-alabama-and-other-states-attempt-to-reignite-culture-war-attacking-lgbtq-youth.

[31] Some bills that include this provision are H.R. 755, 2022 Reg. Sess. (N.C. 2022); H.R. 1431, 2022 Re. Sess. (N.H. 2022); H.R. 4555, 124th Gen. Assemb., 2022 Reg. Sess. (S.C. 2022) and H.R. 1557, 2022 Sess. (Fla. 2022).

[32] Matt Lavietes, From Book Bans to ‘Don’t Say Gay’ Bill, LGBTQ Kids Feel ‘Erased’ in the Classroom, NBC News (Feb. 20, 2022), https://www.nbcnews.com/nbc-out/out-news/book-bans-dont-say-gay-bill-lgbtq-kids-feel-erased-classroom-rcna15819.

[33]Luneau, o, supra note 30.

[34] Coming out is the process of disclosing one’s sexual orientation or gender identity to other people. Glossary of Terms, HRC Found., https://www.hrc.org/resources/glossary-of-terms.

[35] Some bills that include this provision are H.R. 755, 2022 Reg. Sess. (N.C. 2022) (bill requires notice to parents of a change in student’s name or pronouns); S. 1278, 2022 Reg. Sess. (Pa. 2022); S. 1045, 55th Leg, 2nd Reg. Sess. (Ariz. 2021).

[36] H.R. 837, 2022 Reg. Sess. (La. 2022).

[37] Some bills that include this provision are H.R. 755, 2022 Reg. Sess. (N.C. 2022); H.R. 1557, 2022 Sess. (Fla. 2022); S. 1278, 2022 Reg. Sess. (Pa. 2022).

[38] Title IX, Education Amendments of 1972, 20 U.S.C. §§ 1681-1688.

[39] Bostock v. Clayton County, 140 S. Ct. 1731, 1754 (2020).

[40] Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32,637 (June 22, 2021), https://www.federalregister.gov/documents/2021/06/22/2021-13058/enforcement-of-title-ix-of-the-education-amendments-of-1972-with-respect-to-discrimination-based-on; Memorandum from Principal Deputy Assistant Attorney Gen. Pamela S. Karlan to Federal Agency Civil Rights Directors and General Counsels (Mar. 26, 2021) https://www.justice.gov/crt/page/file/1383026/download.

[41]  The State of Title IX, Know Your IX, https://www.knowyourix.org/college-resources/hands-off-ix/.

[42] Dustin Jones, Biden’s Title IX Reforms Would Roll Back Trump-Era Rules, Expand Victim Protections, NPR (June 23, 2022), https://www.npr.org/2022/06/23/1107045291/title-ix-9-biden-expand-victim-protections-discrimination.

[43] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Dep’t of Educ. (July 12, 2022) https://www.regulations.gov/document/ED-2021-OCR-0166-0001 (public comment is open for sixty days from July 12, 2022, to September 9, 2022).

[44] Trudy Ring, Judge Blocks Biden Admin’s Guidance on Anti-LGBTQ+ Discrimination, The Advocate (July 16, 2022), https://www.advocate.com/law/2022/7/16/judge-blocks-biden-admins-guidance-anti-lgbtq-discrimination. 

[45] Id.

[46] Sara Singer, What is Age-Appropriate LGBTQ+ Education, Truth for Teachers (May 4, 2022), https://truthforteachers.com/age-appropriate-lgbtqia-education/ (Don’t Say Gay/Trans bills use language saying that any instruction on sexual orientation or gender identity that is not age appropriate is not allowed under the parent’s bill of rights. Teachers are worried that this broad and vague language increases what they can be sued for teaching or including in the classroom); Matt Lavietes, Here’s What Florida’s ‘Don’t Say Gay’ Bill Would Do and What It Wouldn’t Do, NBC News (Mar. 16, 2022), https://www.nbcnews.com/nbc-out/out-politics-and-policy/floridas-dont-say-gay-bill-actually-says-rcna19929 (provisions in Florida’s Don’t Say Gay/Trans law “could open districts and educators to lawsuits from parents who believe any conversation about LGBTQ people or issues to be inappropriate, regardless of their child’s age.”).

[47] #DontEraseUs: FAQ About Anti-LGBT Curriculum Laws, supra note 12; Elinor Aspegren, Kids Aren’t Learning LGBTQ History. The Equality Act Might Change That., USA Today (Mar. 6, 2021), https://www.usatoday.com/story/news/education/2021/03/06/lgbtq-history-equality-education-act-teachers/6648601002/.

[48]  Lavietes, supra note 32.

[49] Id.

[50] Id.; Leila Rafei, How LGBTQ Voices are Being Erased in Classrooms, ACLU (June 27, 2022), https://www.aclu.org/news/lgbtq-rights/how-lgbtq-voices-are-being-erased-in-classrooms-censorship.

[51] Hannah Natanson, LGBTQ Clubs Were Havens for Students. Now They’re Under Attack., Wash. Post (June 28 2022), https://www.washingtonpost.com/education/2022/06/28/gay-straight-alliance-indoctrination-school-club/.  

[52] What is a GSA Club, GSA Network, https://gsanetwork.org/what-is-a-gsa/?

[53] Know Your Rights – Federal Laws Protecting GSAs and LGBTQ Students, GSAFE, https://gsafewi.org/resources/for-youth-gsas/legal-rights/federal-laws-that-protect-gsas-and-lgbtq-youth/; GSA Court Victories: A Guide for LGBTQ High School Students, ACLU, https://www.aclu.org/other/gsa-court-victories-guide-lgbtq-high-school-students.

[54] Equal Access Act, 20 U.S.C. § 4071 (1984).

[55] Arne Duncan, Key Policy Letters from the Education Secretary and Deputy Secretary, U.S. Dep’t of Educ. (June 14, 2011), https://www2.ed.gov/policy/elsec/guid/secletter/110607.html.

[56] Jason Ruiter, ACLU Slams Lake Policy Requiring Permission Slips for Middle-School Clubs, Orlando Sent. (Oct. 8, 2017), https://www.orlandosentinel.com/news/lake/os-gay-straight-alliance-free-speech-lake-county-schools-aclu-20171003-story.html; Natanson, supra note 51.

[57] Natanson, supra note 51.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] #DontEraseUs: FAQ About Anti-LGBT Curriculum Laws, supra note 12.

[65] Id.

[66] Id.

[67] HRC Staff, Summer of Outrage: Fight Censorship, HRC (July 7, 2022), https://www.hrc.org/news/summer-of-outrage-fight-censorship.  

[68] Id.

[69] Madeleine Roberts, New CDC Data Shows LGBTQ Youth are More Likely to be Bullied Than Straight Cisgender Youth, HRC (Aug. 26, 2020), https://www.hrc.org/news/new-cdc-data-shows-lgbtq-youth-are-more-likely-to-be-bullied-than-straight-cisgender-youth.

[70] Lavietes, supra note 32.

[71] Id.

[72] Brian Mastroianni, Why Florida’s ‘Don’t Say Gay’ Bill Is So Dangerous, Healthline (Mar. 16, 2022), https://www.healthline.com/health-news/why-floridas-dont-say-gay-bill-is-so-dangerous; Melissa Hellmann, A lifeline for Florida students amid ‘Don’t Say Gay’ law, The Center for Public Integrity (Apr. 1, 2022), https://publicintegrity.org/inside-publici/newsletters/watchdog-newsletter/lifeline-florida-students-dont-say-gay/.

[73] Lavietes, supra note 32.

[74] Mastroianni, supra note 72.

[75] Mary Ellen Flannery, New Survey Data Shows LGBTQ+ Youth Mental Health Crisis, Nat’l Educ. Ass’n (May 25, 2022), https://www.nea.org/advocating-for-change/new-from-nea/new-survey-data-shows-lgbtq-youth-mental-health-crisis.

[76] Health Disparities Among LGBTQ Youth, supra note 9; M.H. Morton, et al., Missed Opportunities: LGBTQ Youth Homelessness in America, Chapin Hall at the Univ. of Chicago (2018), https://www.chapinhall.org/wp-content/uploads/VoYC-LGBTQ-Brief-FINAL.pdf.

[77] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10.

[78] Morton, et al., supra note 76.

[79] Id.

[80] Id.

[81] Lisa Davis, Why Florida has Such a High Rate of LGBT Homeless Youth, Family Res., Inc. (Jan. 15, 2019), https://familyresourcesinc.org/2019/01/florida-high-rate-lgbt-homeless-youth/ (looking at the state of Florida for example, where LGBT students make up 40 percent of the homeless population, “almost half of LGBT youth run away from home because they were outright rejected by their families, 43 percent because their parents forced them out, and 32 percent to escape physical, emotional, and mental abuse.”).

[82] JoJo, Invisible People, https://invisiblepeople.tv/videos/jojo-transgender-homeless-woman-in-hollywood/.

[83] Id.  

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] James Michael Nichols, 6 Homeless LGBTQ Youths Share Their Stories, HuffPost (June 14, 2018), https://www.huffpost.com/entry/homeless-lgbtq-youth_n_5b228f53e4b09d7a3d7b22e0; SAMHSA, Larkin Street Stories: LGBT Youth Homelessness, U.S. Department of Health & Human Services (2011), https://www.samhsa.gov/homelessness-programs-resources/hpr-resources/larkin-street-stories-lgbt-youth.

[89] Morton, et al., supra note 76.

[90] Id.

[91] Davis, supra note 81; Ana L. Olivera & Jeanne B. Mullgrav, All Our Children: Strategies to Prevent Homelessness, Strengthen Services and Build Support for LGBTQ Youth, NYC Comm’n on Lesbian, Gay, Bisexual, Transgender, and Questioning Runaway and Homeless Youth (June 2010), http://www.nyc.gov/html/om/pdf/2010/pr267_10_report.pdf.

[92] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10.

[93] Id.

[94] Id.

[95] Id.

[96] Transgender is a term that refers to people whose gender identity, differs from their assigned or presumed sex at birth. Glossary of LGBTQ Terms, Lambda Legal, https://www.lambdalegal.org/know-your-rights/article/youth-glossary-lgbtq-terms?gclid=EAIaIQobChMIrNeM9Pnm-AIVGuTjBx2liQxfEAAYASAAEgL80fD_BwE. Meanwhile, Cisgender is a term used to describe a person whose gender identity aligns with those typically associated with the sex assigned to them at birth. Glossary of Terms, HRC Found., https://www.hrc.org/resources/glossary-of-terms.

[97] Nonbinary is an adjective describing a person who does not identify exclusively as a man or a woman. Non-binary people may identify as being both a man and a woman, somewhere in between, or as falling completely outside these categories. Glossary of Terms, HRC Found., https://www.hrc.org/resources/glossary-of-terms.

[98] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10.

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] Id.

[105] Natalia Deeb-Sossa, et al., Building Partnerships: Conversations with LGBTQ Youth About Mental Health Needs and Community Strengths, UC Davis Ctr. for Reducing Health Disparities (June 2009), https://health.ucdavis.edu/media-resources/crhd/documents/pdfs/building-partnerships-05-lgbtq-youth.pdf.

[106] Id.

[107] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10.

[108] Robyn Merrett, Alabama Ninth-Grader Dies by Suicide After He Was Bullied for Being Gay: ‘He Was Full of Light’, People (Apr. 24, 2019), https://people.com/human-interest/alabama-teen-nigel-shelby-suicide-bullied-for-being-gay/.

[109] Id.

[110] Id.

[111] Lesbian, Gay, Bisexual, and Transgender Health, Centers for Disease Control and Prevention (June 21, 2017), https://www.cdc.gov/lgbthealth/youth.htm; 2022 National Survey on LGBTQ Youth Mental Health, supra note 10.

[112] Anxiety Disorders, Nat’l Inst. of Mental Health, https://www.nimh.nih.gov/health/topics/anxiety-disorders. 

[113] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10..

[114] Kate Finning, The Association Between Anxiety and Poor School Attendance, The Ass’n for Child and Adolescent Mental Health (Aug. 24, 2020), https://www.acamh.org/research-digest/the-association-between-anxiety-and-poor-school-attendance/.

[115] Id.

[116] Anxiety Disorders, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/anxiety/symptoms-causes/syc-20350961 (anxiety disorders can lead to depression, substance misuse, problems functioning at school, suicide, and more).

[117] Depression, Nat’l Inst. of Mental Health, https://www.nimh.nih.gov/health/topics/depression.

[118] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10..

[119] Depression, supra note 117.

[120] LGBTQI, National Alliance on Mental Illness, https://www.nami.org/Your-Journey/Identity-and-Cultural-Dimensions/LGBTQI.

[121] Id.

[122] Depression, supra note 117.

[123] John B. Griffin, Substance Abuse, Clinical Methods: The History, Physical, and Laboratory Examinations 3rd ed. (1990), https://www.ncbi.nlm.nih.gov/books/NBK319/.

[124] Preventing Substance Abuse Among LGBTQ Teens, HRC Found. (2012), https://assets2.hrc.org/files/assets/resources/YouthSubstanceAbuse-IssueBrief.pdf?_ga=2.221416344.166593971.1658929438-1757735563.1657130116&_gac=1.149053698.1658951491.EAIaIQobChMIhPD27uuZ-QIVgofICh1MBQVXEAAYAiAAEgKkjPD_BwE.

[125] Preventing Substance Abuse Among LGBTQ Teens, supra note 124.

[126] LGBTQ Youth and Addiction, Addiction Ctr. https://www.addictioncenter.com/addiction/lgbtq/lgbtq-youth-addiction/.

[127] Preventing Substance Abuse Among LGBTQ Teens, supra note 124.

[128] Id.

[129] Id.

[130] Id.

[131] Kristina Ackermann, Why American LGBTQ Teens Are More Likely to Abuse Drugs, Am. Addiction Centers (Oct. 26, 2021), https://americanaddictioncenters.org/lgbtqiapk-addiction/drug-abuse-in-the-lgbtq-teen-community.

[132] Suicide and Homelessness: Data Trends in Suicide and Mental Health Among Homeless Populations, Nat’l Health Care for the Homeless Council (May 2018), https://nhchc.org/wp-content/uploads/2019/08/suicide-fact-sheet.pdf.

[133] Tat Bellamy-Walker, Homelessness Linked to Poor Mental Health Among LGBTQ Youth, Report Finds, NBC News (Feb. 3, 2022), https://www.nbcnews.com/nbc-out/out-health-and-wellness/homelessness-linked-poor-mental-health-lgbtq-youth-report-finds-rcna14660.

[134] Breaking Barriers to Quality Mental Health Care for LGBTQ Youth, Trevor Project (Aug. 18, 2020), https://www.thetrevorproject.org/research-briefs/breaking-barriers-to-quality-mental-health-care-for-lgbtq-youth/.

[135] LGBTQI, Nat’l Alliance on Mental Illness, https://www.nami.org/Your-Journey/Identity-and-Cultural-Dimensions/LGBTQI.

[136] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10..

[137] Id.

[138] Parents’ Rejection of a Child’s Sexual Orientation Fuels Mental Health Problems, Am. Psychol. Ass’n (Mar. 2009), https://www.apa.org/monitor/2009/03/orientation.

[139] LGBTQI, Nat’l Alliance on Mental Illness, https://www.nami.org/Your-Journey/Identity-and-Cultural-Dimensions/LGBTQI.

[140] Caitlin Ryan, Family Behaviors that Increase Your LGBTQ Child’s Health & Well-Being, Family Acceptance Project (2019), https://familyproject.sfsu.edu/sites/default/files/FAP_English%20General%20Acceptance%20Poster_with%20crop%20marks_24x36.pdf.

[141] Jim Rosica, Lawmaker Behind Florida’s ‘Don’t Say Gay’ Bill Pulls Amendment Requiring Schools to Out Students, USA Today (Feb. 22, 2022), https://www.usatoday.com/story/news/politics/2022/02/22/dont-say-gay-bill-florida-schools-out-students/6894516001/; Coming Out: A Resource for LGBTQ Students, GLSEN (2021), https://www.glsen.org/activity/coming-out-resource-lgbtq-students.

[142] HRC Staff, Human Rights Campaign on DeSantis’s “Don’t Say Gay or Trans” Law Going into Effect, Targeting LGBTQ+ Youth and Turning Back the Clock on Equality, HRC (June 30, 2022), https://www.hrc.org/press-releases/human-rights-campaign-on-desantiss-dont-say-gay-or-trans-law-going-into-effect-targeting-lgbtq-youth-and-turning-back-the-clock-on-equality.

[143] Sarah L. Katz-Wise, et al., LGBT Youth and Family Acceptance, NIH (Dec. 1, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5127283/.

[144] Ryan, supra note 140.

[145] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10..

[146] Lesbian, Gay, Bisexual, and Transgender Health, supra note 111.

[147] Id.

[148] 2022 National Survey on LGBTQ Youth Mental Health, supra note 10..

[149] Id.

[150] Id.

[151] Deeb-Sossa, supra note 105.

[152] Lavietes, supra note 32.

[153] Id.

[154] Luneau, , supra note 30.

[155] Id.

[156] Prescott, supra note 4.

[157] Id.

[158] Id.

[159] Id.

[160] Id.

[161] California Fair Education Act, Our Pride (July 1, 2017), https://www.ourpride.org/fair-education-act.html.

[162] Fair, Accurate, Inclusive, and Respectful Education Act (FAIR), Sacramento City Unified School Dist., https://www.scusd.edu/fair-education-act#:~:text=The%20FAIR%20Education%20Act%20(also,history%20and%20social%20studies%20curriculum.

[163] Fair Education Act, S. 48, Reg. Sess. (Cal. 2011).

[164] About the Fair Education Act, Teaching LGBTQ History, https://www.lgbtqhistory.org/about-fair-education-act/.

[165] A.B. 261, 81st Leg. (Nev. 2021).

[166]Id.

[167] School Climate for LGBTQ Students in Nevada, GLSEN (2021), https://www.glsen.org/sites/default/files/2021-01/Nevada-Snapshot-2019.pdf.

[168] Poorvu Center for Teaching and Learning, Inclusive Classroom Climate, Yale, https://poorvucenter.yale.edu/ClassClimates.

[169] A Checklist for a Welcoming and Inclusive School Environment, HRC Found., https://welcomingschools.org/resources/checklist-for-a-welcoming-and-inclusive-school-environment.

[170] Professional Development, GLSEN, https://www.glsen.org/professional-development; HRC Staff, Resources for Creating LGBTQ-Inclusive Schools, HRC (Sept. 3, 2019), https://www.hrc.org/news/resources-for-creating-lgbtq-inclusive-schools; Prescott, supra note 4.

[171] Tracy Flores & Sandra Osoria, Why Diverse Books Matter: Mirrors and Windows, Colorin Colorado (2021), https://www.colorincolorado.org/article/why-diverse-books-matter-mirrors-and-windows.

[172] Singer, supra note 46 (there is a belief that teaching about the LGBTQ community means talking about sex or letting children “choose” their gender).

[173] Caitlin Giddings, 15 LGBTQ Books for Kids and Teens Recommended by Queer Librarians, Educators, and Independent Booksellers, N.Y. Times (Apr. 20, 2022), https://www.nytimes.com/wirecutter/reviews/15-lgbtq-books-for-kids-and-teens/.

[174] Alexandra Penfold & Suzanne K. Kauffman, All Are Welcome (2018) (a bestselling picture book, celebrating diversity and inclusivity).

[175] Sophie Beer, Love Makes a Family (2018) (a fun, inclusive board book celebrates the one thing that makes every family a family- love).

[176] Great LGBTQ+ Inclusive Picture & Middle Grade Books, HRC Found., https://welcomingschools.org/resources/childrens-books-lgbtq-inclusive.

[177] Alex Gino, Rick (2020) (a powerful coming of age story about a boy questioning his sexuality, conquering middle school, outgrowing an old friend and gaining new friends).

[178] Kacen Callender, Hurricane Child (2018) (a story about a queer girl finding her place, first love, and her mother’s love).

[179] Great LGBTQ+ Inclusive Picture & Middle Grade Books, HRC Found., https://welcomingschools.org/resources/childrens-books-lgbtq-inclusive.

[180] Gemma Alexander, Why School Libraries Need LGBTQ Books, Parent Map (Mar. 28, 2022), https://www.parentmap.com/article/why-school-libraries-need-lgbtq-books.

[181] Id.; Why LGBTQ+ Children’s Books are so Important, The LGBT Sent. (Feb. 12, 2019), http://www.thelgbtsentinel.com/lgbtq-childrens-books-important/.

[182] Norma Decker Collins, Teaching Critical Reading Through Literature, ERIC Digest (1993), http://ericae.net/edo/ed363869.htm.

[183] George M. Johnson, All Boy’s Aren’tBlue (2020) (this young-adult memoir weaves together the trials and triumphs faced by Black queer boys).

[184] Samra Habib, We Have Always Been Here: A Queer Muslim Memoir (2019) (an exploration of faith, art, love, and queer sexuality, this memoir is about forgiveness and family, both chosen and not).

[185] Margaret Kingsbury, 21 LGBTQ Memoirs You Need To Listen To, Buzzfeed News (June 11, 2021), https://www.buzzfeednews.com/article/margaretkingsbury/lgbtq-memoirs-audiobooks-pride-month.

[186] Alice Walker, The Color Purple (1982).

[187] Oscar Wilde, The Picture of Dorian Gray (1890).

[188] Mollie Blackburn & Mary Catherine Miller, Equity by Design: Teaching LGBTQ Themed Literature in English Language Arts Classrooms, Midwest & Plains Equity Assistance Center (2017), https://www.academia.edu/35309905/Teaching_LGBTQ_Themed_Literature_in_English_Language_Arts_Classrooms.

[189] Gay Rights, History (June 15, 2022), https://www.history.com/topics/gay-rights/history-of-gay-rights#:~:text=The%20gay%20rights%20movement%20saw,about%20homosexuality%2C%20called%20The%20Rejected.; Milestones in the American Gay Rights Movement, PBS, https://www.pbs.org/wgbh/americanexperience/features/stonewall-milestones-american-gay-rights-movement/.

[190] Id.

[191] Stonewall Riots: The Beginning of the LGBT Movement, The Leadership Conference of Civil and Human Rights (June 22, 2009), https://civilrights.org/2009/06/22/stonewall-riots-the-beginning-of-the-lgbt-movement/.

[192] The Official Harvey Milk Biography, Milk Found., https://milkfoundation.org/about/harvey-milk-biography/; Bill Van Niekerken, SF’s White Night Riots’ 40th Anniversary: Long-Buried Photos Show a City Torn Apart, S.F. Chron. (May 20, 2019), https://www.sfchronicle.com/chronicle_vault/article/SF-s-White-Night-riots-40th-anniversary-13865164.php; Cleve Jones, When We Rise (2016).

[193] The AIDS Epidemic in the United States, 1981-Early 1990s, David J. Sencer CDC Museum, https://www.cdc.gov/museum/online/story-of-cdc/aids/index.html; Miller, AIDS, https://www.pbs.org/outofthepast/past/p6/1981_1.html; The History of the Quilt, Nat’l Aids Mem’l, https://www.aidsmemorial.org/quilt-history.

[194] John F. Kowal, The Improbable Victory of Marriage Equality, Brennan Ctr. for Justice (Sept. 29, 2015), https://www.brennancenter.org/our-work/analysis-opinion/improbable-victory-marriage-equality.

[195] Gay Rights, supra note 189; Milestones in the American Gay Rights Movement, PBS, https://www.pbs.org/wgbh/americanexperience/features/stonewall-milestones-american-gay-rights-movement/.

[196] A Call to Action: LGBTQ Youth Need Inclusive Sex Education, HRC Found., https://www.hrc.org/resources/a-call-to-action-lgbtq-youth-need-inclusive-sex-education; Get the Facts: Improve School Climate to Increase LGBT Students’ Well-Being and Reduce HIV/AIDS Risk, GLSEN and AIDS United (2015), https://www.glsen.org/sexed.

[197] A Call to Action: LGBTQ Youth Need Inclusive Sex Education, HRC Found., https://www.hrc.org/resources/a-call-to-action-lgbtq-youth-need-inclusive-sex-education

[198] Id.

[199] Id.

[200] The Education Team, Why Sex Education Is Important [Podcast], Planned Parenthood (Aug. 25, 2020), https://www.plannedparenthood.org/planned-parenthood-st-louis-region-southwest-missouri/blog/why-sex-education-is-important-podcast; Zipi Diamond, Why We Need Inclusive Sex Education, GLAAD (Mar. 28, 2018), https://www.glaad.org/amp/why-we-need-inclusive-sex-ed?gclid=EAIaIQobChMI-rno-Nmy-QIVi43ICh12BwUBEAAYAyAAEgKdevD_BwE.

[201] U.S. Const. art. I § 8 (education not listed in Congress’s enumerated powers); U.S. Const. amend. X (since education is not a power given to the federal government by the Constitution it is a power reserved for the states).

[202] The Federal Role in Education, U.S. Dep’t of Educ., https://www2.ed.gov/about/overview/fed/role.html.

[203] Why Does Every State in The U.S. Have A Different Educational Curriculum, Teachnology, https://www.teach-nology.com/teachers/government_agencies/.

[204] Organization of U.S. Education: The Local Role, International Affairs Office, U.S. Dep’t of Educ. (Feb. 2008), http://www.ed.gov/international/usnei/edlite-index.html.

[205] Laws & Guidance, U.S. Dep’t of Educ., https://www2.ed.gov/policy/landing.jhtml?src=ft; U.S. Const. amend. X.

[206] Brendan Pelsue, When it Comes to Education, the Federal Government is in Charge of … Um, What, Harvard Ed. Magazine (2017), https://www.gse.harvard.edu/news/ed/17/08/when-it-comes-education-federal-government-charge-um-what (“federal government uses a complex system of funding mechanisms, policy directives, and the soft but considerable power of the presidential bully pulpit to shape what, how, and where students learn”).

[207] The Federal Role in Education, U.S. Dep’t of Educ., https://www2.ed.gov/about/overview/fed/role.html (about 92 percent of funder for K-12 education comes from non-federal sources).

[208] Melanie Hanson, U.S. Public Education Spending Statistics, Educ. Data Initiative (June 15, 2022), https://educationdata.org/public-education-spending-statistics#:~:text=Federal%2C%20state%2C%20and%20local%20governments,for%20public%20K%2D12%20education.

[209] Pelsue, supra note 206(states receive funding for education programing on a conditional basis, provided they met the requirements outlined in certain sections, or titles, of the act).

[210] U.S. Const. art. I, § 8, cl. 2.

[211] Steven Schwinn, Symposium: It’s Time to Abandon Anti-Commandeering (But Don’t Count on This Supreme Court to Do It), SCOTUS Blog (Aug. 17, 2017), https://www.scotusblog.com/2017/08/symposium-time-abandon-anti-commandeering-dont-count-supreme-court/#:~:text=The%20anti%2Dcommandeering%20doctrine%20says,in%201992%2C%20and%20Printz%20v (the anti-commandeering doctrine says that the federal government cannot require states or state officials to adopt or enforce federal law. The Supreme Court created the doctrine out of the 10th Amendment and related federalism principles in two cases, New York v. United States in 1992, and Printz v. United States in 1997).

[212] Meredith Deliso, 6 in 10 Americans Oppose Laws Prohibiting LGBTQ Lessons in Elementary School: POLL, ABC News (Mar. 13, 2022), https://abcnews.go.com/Politics/10-americans-oppose-laws-prohibiting-lgbtq-lessons-elementary/story?id=83393478.

[213] Katie Glueck & Patricia Mazzei, Red States Push L.G.B.T.Q. Restrictions as Education Battles Intensify, N.Y. Times (Apr. 14, 2022), https://www.nytimes.com/2022/04/12/us/politics/transgender-laws-us.html.

[214] Presidential Results, supra note 5 (states with inclusive LGBT curriculum laws voted Democrat in the 2020 presidential election).

[215] Gabriela Paz-Soldan, Curricula in Crisis: The Slippery Slope of School Censorship, Brown Political Rev. (Apr. 22, 2021), https://brownpoliticalreview.org/2022/04/curricula-in-crisis-the-slippery-slope-of-school-censorship/; Critical Race Theory, Legal Defense Fund, https://www.naacpldf.org/critical-race-theory-faq/?gclid=EAIaIQobChMIgPHiz7Cw-QIVGgaICR2IVwapEAAYASAAEgLyHvD_BwE (“Critical Race Theory is an academic and legal framework that denotes that systemic racism is part of American society — from education and housing to employment and healthcare.”).

[216] Henry Berg-Brousseau, ICYMI: As Lawmakers Escalate Attacks on Transgender Youth Across the Country, Some GOP Leaders Stand Up for Transgender Youth, HRC (Mar. 24, 2022), https://www.hrc.org/press-releases/icymi-as-lawmakers-escalate-attacks-on-transgender-youth-across-the-country-some-gop-leaders-stand-up-for-transgender-youth; Anti-LGBTQ+ Bills in 2022, HRC, https://www.hrc.org/campaigns/the-state-legislative-attack-on-lgbtq-people#state-legislative-tracker-map.

[217] Id.  

[218]  Deliso, supra note 212(“poll found that Republicans are more likely to support legislation that would prohibit classroom lessons about sexual orientation or gender identity in elementary school, with 61% of GOP identifiers supporting it compared to only 20% of Democrats and 35% of independents”); Presidential Results, supra note 5 (states that have anti-LGBT curriculum laws voted Republican in the 2020 presidential elections and states with inclusive LGBT curriculum laws voted Democrat); Study International Staff, The Benefits of an Inclusive Curriculum, Study Int’l (Aug. 22, 2019), https://www.studyinternational.com/news/benefits-inclusive-curriculum/.

[219] President Biden (@POTUS) Twitter (Feb. 8, 2022, 6:07 PM), https://twitter.com/POTUS/status/1491186973511458818.

[220] Id.

[221] Exec. Order No. 14075 (2022).

[222] FACT SHEET: President Biden to Sign Historic Executive Order Advancing LGBTQI+ Equality During Pride Month, The White House (June 15, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/15/fact-sheet-president-biden-to-sign-historic-executive-order-advancing-lgbtqi-equality-during-pride-month/.

[223] Id.

[224] Jones, supra note 42.

[225] Constitutional Requirements Governing American Education, State Univ., https://education.stateuniversity.com/pages/1882/Constitutional-Requirements-Governing-American-Education.html.

[226] No Child Left Behind Act of 2001, Legal Info. Inst. (July 2020), https://www.law.cornell.edu/wex/no_child_left_behind_act_of_2001.

[227] Alyson Klein, No Child Left Behind: An Overview, Educ. Week (Apr. 10, 2015), https://www.edweek.org/policy-politics/no-child-left-behind-an-overview/2015/04.

[228] Andrew M.I. Lee, What is No Child Left Behind (NCLB), Understood, https://www.understood.org/en/articles/no-child-left-behind-nclb-what-you-need-to-know (last visited May 19, 2023).

[229] Title I “provides financial assistance to local educational agencies (LEAs) and schools with high numbers or high percentages of children from low-income families to help ensure that all children meet challenging state academic standards.” Improving Basic Programs Operated by Local Educational Agencies (Title I, Part A), U.S. Dep’t of Educ. (Oct. 24, 2018), https://www2.ed.gov/programs/titleiparta/index.html.

[230] Klein, supra note 227.

[231] Lee, supra note 228; Klein, supra note 227.

[232] No Child Left Behind: Expanding the Promise, U.S. Dep’t of Educ. (Mar. 2005), https://www2.ed.gov/about/overview/budget/budget06/nclb/expanding-promise.pdf.

[233] Race to the Top, The White House, https://obamawhitehouse.archives.gov/issues/education/k-12/race-to-the-top.

[234] Id.

[235] Race To the Top (RTT): Reforming Education in Key American States, Ctr. for Public Impact (Apr. 15, 2016), https://www.centreforpublicimpact.org/case-study/race-to-the-top-education-competitive-grant-in-the-us.

[236] Id.

[237] Grace Chen, What is Race to the Top and How will it Benefit Public Schools, Pub. School Rev. (May 19, 2022), https://www.publicschoolreview.com/blog/what-is-race-to-the-top-and-how-will-it-benefit-public-schools.

[238] William G. Howell, Results of President Obama’s Race to the Top, Educ. Next (July 14, 2015), https://www.educationnext.org/results-president-obama-race-to-the-top-reform/; Race to the Top Policy Map 2015, Educ. Next (July 10, 2015), https://www.educationnext.org/race-top-policy-map-2015/ (States that have won PTT grants are Colorado, Arizona, Louisiana, Florida, Georgia, Tennessee, North Carolina, Illinois, DC, Maryland, Delaware, New Jersey, Pennsylvania, Ohio, Kentucky, New York, Rhode Island, Massachusetts).

[239] Chen, supra note 237.

[240] Klein, supra note 227 (states received Title I federal funding if they complied with the requirements of the No Child Left Behind Act, like annual standardized testing and reporting); Chen, supra note 237 (In order to receive a federal grant each competing state had to present its case to the Department of Education and there was a continuous monitoring process of each state’s progress, through annual performance reports, accountability protocols, and site visits by the Department of Education).

[241] Prescott, supra note 4.

[242] Professional Development, GLSEN, https://www.glsen.org/professional-development; HRC Staff, Resources for Creating LGBTQ-Inclusive Schools, HRC (Sept. 3, 2019), https://www.hrc.org/news/resources-for-creating-lgbtq-inclusive-schools.

[243] Educators Shape First LGBTQ Inclusive Textbooks in the Country, Nat’l Educ. Ass’n (Feb. 12, 2018), https://neaedjustice.org/2018/02/12/educators-shape-first-lgbtq-inclusive-textbooks-country/.

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#OUREXPERIENCESMATTER: HOW RACE, GENDER AND SOCIO-ECONOMIC IDENTITY HAVE HISTORICALLY INFLUENCED THE CRIMINALIZATION OF THE BLACK FEMALE SEX WORKER — A LOOK AT EARLY-TWENTIETH CENTURY NEW YORK AND PRESENT-DAY SAN JUAN, PUERTO RICO

By Kyra Sampson, ’23 (PDF Version)

I. Introduction

The Black female body has remained a subject of American political discourse for centuries. Beginning during the proliferation of slavery in the Western Hemisphere in the seventeenth century to present day, the conversation about the ways in which a Black woman presents herself and how her body is utilized — regardless of whether it is for public or private consumption — is one that is incessant. Just look at Lizzo. Although the pop artist has received much critical acclaim since the 2017 release of her third studio album, Cuz I Love You, arguably, media coverage has focused less on her music over the years and more on her physical stature and appearance. A self-described “big girl,” much of the conversation around Lizzo’s body has been centered around ideas that she is often too “scantily-clad” for someone her size or that she is unconsciously promoting a variety of serious health conditions like heart disease, diabetes, and cancer as an ‘obese’ musical artist with an expansive social and cultural platform.[1] Having been privy to the many debates surrounding her body, Lizzo has admittedly expressed having long felt excluded and, arguably, policed by the public because of “her Blackness, her size, and her sexuality.”[2]

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Voting Registration and Federal Housing Assistance: A Practical Solution to Increase Democratic Participation

By Arlo Blaisus (PDF Version)

I. Introduction

The United States is one of the only developed democracies in the world that places the responsibility of maintaining voter registration on its citizens.[1] This policy contributes to the U.S. having lower levels of democratic participation than many other democracies,[2] reducing the effectiveness and legitimacy of U.S. governmental institutions.[3] U.S. voter registration rates are also depressed due to its history of voter registration laws, which developed as an intentional means of disenfranchising minority and low-income citizens.[4] To address these problems, Congress passed the National Voting Rights Act of 1993 (NVRA) with the intention of “maximizing opportunities for voter registration.”[5]

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Students, Schools, and Special Relationships

By Sarah Zimmerman, ’22 (PDF Version)

I. Introduction

Generally, the Constitution does not require affirmative action on the part of the government, but rather describes restrictions on government power.[1] In this vein, the Due Process Clause is traditionally read to “protect the people from the State,” rather than to confer a right to government aid.[2] In certain contexts, however, the Constitution charges governments with affirmative duties to protect individuals from private harm.[3] One such situation is where the state and the individual are in a “special relationship,” such that the state has constrained the individual’s liberty. Courts have refused to extend this exception to students, in spite of the national ubiquity of compulsory attendance statutes and the nature of schools providing for students’ basic needs. This Article will argue that the failure of courts to apply the “special relationship” exception to students is a constitutional oversight that (i) denies the practical realities of modern schooling in America and (ii) fails to protect children from harm.

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Misjudging in Judging: The Role of Cognitive Biases in Shaping Judicial Decisions

By Yunica Jiang, ‘20 (PDF Version)

I.      Introduction

Commenting on Judge Persky’s six-month sentence for Brock Turner, Chanel Miller—known previously to the world as the victim “Emily Doe”—poses a question: “Instead of a nineteen-year-old Stanford athlete, let’s imagine a Hispanic nineteen-year-old working in the kitchen of the fraternity commits the same crime. Does this story end differently?”[1] All actors involved in an eventual sentencing decision are susceptible to cognitive biases, from the police who make the initial arrest[2] to the prosecutor that brings the charges,[3] to the jurors.[4] Judges are susceptible to the same cognitive errors as all other actors.[5] This Article explores cognitive biases in the context of judicial decisions, with a focus on racial disparities.

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