Do We Need Laws to Force Us to Wear Masks?

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Ever since the number of COVID-19 cases began to grow in the United States the debate over whether to mandate wearing masks in public has raged on. Frequently devolving into a debate over political ideology rather than a discourse based on hard science. Naturally, those who believe mask-wearing to be an effective precaution against spreading the virus favor compulsory laws enforcing this practice in public. However, could it be possible that people still opt to take precautionary measures even in the absence of fine or other penalties? Better yet, couldn’t owners of private institutions such as stores, restaurants, and entertainment venues implement their preventive measures as conditions of patronizing their establishment? After all, the incentives are present to want to avoid any unnecessary risks and to keep their customers healthy to ensure a steady stream of business in these uncertain times.

In the state of Arizona, the issue of mask-wearing mandates has been left up to the local governments.  Most municipalities have opted to require masks while occupying indoor venues at the risk of facing a hefty fine. Back in June the city of Phoenix purposed a $250.00 for individuals repeatedly refusing to wear a mask. The suburb of Chandler, Arizona imposes a fine of $100.00 or 30 days in jail for mask-related infractions. Residents and visitors in the towns and cities located in Pinal County are not subject to mask requirements but are strongly encouraged to wear masks. One would assume that in these communities that are immune from such restrictions that the image of bare-faced shoppers must be a ubiquitous scene in the local grocery store. Such an assumption would be incorrect.

Even in the absence of formal constraints, most stores require that all customers wear masks. Generally, posting a sign on the front door forewarning prospective patrons of this precondition. Not only are the stores and eateries of the communities of towns such as Maricopa, Casa Grande, and so on filled with mask-wearing customers, but many establishments are taking measures not required by any municipality in the state. Employees are constantly cleaning. The local grocery store has never looked more pristine. Frankly, many of these changes in the cleaning and sanitizing schedules of the local business are long overdue. These shrewd business owners are proactively responding to the potential concerns of their clients. Anticipating that customers may avoid doing business if masks are at their brick-and-mortar location they have elected to require masks. In addition to urging patrons to wear masks, they also are making concentrated efforts to increase sanitation efforts. Even placing markers indicating the presence of six-foot gaps to maintain social distancing. The smell of bleach and other disinfectant products fill the entryway of the grocery stores. The local Walmart is even wiping down and sanitizing the carts! A sight that few would have ever predicted a year ago. All these preventive steps are taken without any laws, penalties, or ordinances. Completely implemented through apolitical channels.  

This micro-level self-governance on the part of local business propitiators and franchisees demonstrates the power of profit and loss mechanisms. Due to the business owners having a stake in the company they own and operate it is in their best interest to put the customers first. If the customers are comfortable, happy, and healthy it will be mutually beneficial for both parties. The customer will continue to obtain the goods and services they need and want. Simultaneously, the stores and restaurants will continue to receive business which will keep them afloat. Establishments that are insensitive to the needs of their customers will invariably see a dip in sales. This would hold even if we were not amid a pandemic. The entrepreneur must adapt to the present climate. That may mean investing in more cleaning supplies and sanctioning mask-wearing requirements for their establishment. Business proprietors who do not respond to customer concerns about the virus will be effectively punished by market forces. Through a sullied reputation, lackluster sales, and even insolvency. While constrained by federal, state, and local laws business owners by their possession of the enterprise still retain an immense amount of authority to create the rules governing their store. Having the ability to formulate the policies that govern the direction of the business enables them to better serve their customers. Displaying how to profit loss mechanisms can direct precautionary measures even in the absence of laws.

Business proprietors responding to these market pressures is an example of polycentric decision-making.  A system where multiple “decision-making units” with some degree of independent action subscribing to the same set of rules. Filtering the development of safety measures through the government attempts to use a one-size-fits-all approach to the pandemic. Whereas, individual shop owners can tailor their precautions to the specific concerns of their regular customers. Versus obtusely applying rules that may not even be effective or pertinent to how COVID-19 is impacting the region. Direct customer input about the absurdity of funneling customer traffic through two entries instead of three, can be an example of ground-level adjustments that can be made through business owner governed safety procedures when compared to those that are government-sanctioned. Avoiding the red tape and lethargic process of passing legislation or town ordinances provides fluidity that is necessary in dynamic times. A fluidity that is lost in the typical overarching and top-down approaches that are generally favored in regulations.  

Those cynical of the arguments that favor market pressure over formal regulation underestimates the power of the invisible hand. In jurisdictions where there are no regulations in forcing mask-wearing store owners not only require masks but are going the extra mile to ensure sanitary conditions for their customers. Most skeptical of the market being able to push such strives towards private solutions to the COVID-19 outbreak tend to cite avarice on the part of business owners. Without formal regulations, most will skimp on investing in extra precautionary measures due to the additional cost of enacting such changes. The willingness to make such changes is what separates a prudent businessperson from a fool.  The long-run profits from investing more in meeting alleviating the concerns of your customers will quickly outpace the minor cost.  Making a refusal to independently adjust to these changes shortsighted.

Pueblo Lands

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Just a fun fact regarding the Pueblo tribe that originally resided in the U.S. Southwest. This tidbit of information is specific to the Pueblos domiciled in New Mexico. The “… lands were acquired under fee under Spanish rule…”. Once the territory of New Mexico was annexed by the United States under the Treaty of Guadalupe Hidalgo (1848) in the aftermath of the Mexican War (p.272). This transferred right to the lands to the tribe versus the United States government holding the legal title.

Unfortunately, the technical aspects of the land own by New Mexican Pueblos are now minimal. As the tribe is presently in a trust relationship with the U.S. Government. See United States V. Sandoval (1913) (p.273). The tribe cannot “alienate their lands without the consent of the United States per United States V. Candelaria (1926) (p.273). Water rights for Pueblo lands are as applied by Winters Rights and are not different ( New Mexico V. Aamodt) from those of any other tribe (p.273).

Side Note: 

I may not be a trained lawyer. However, I am a Classic Liberal. That means I hold individual rights and property ownership in high regard. After all, I am following in the tradition of John Locke, and so on. If we strip away all the social justice rhetoric surrounding the government’s treatment of the tribes, there are a lot of violations of natural property rights. This opinion may not be based on past case precedence, but rather on unified philosophical principles. By the Treaty of Guadalupe, the tribe has legally transferred the right to their lands. While subsequent legislation may subordinate the strength of this previous agreement, did the tribe ever consent to the trust relationship with the United State’s government? From a purely a priori combined with some of the rhetoric surrounding past and present tribal/U.S. relations it would be fair to surmise no.

The legitimacy of the present guardianship dynamic between the New Mexican Pueblo tribe and the United States is suspect at best. Effectively, this arrangement transfers Pueblo lands to the federal government for relocation to the tribe. Many who are not as privy to the philosophical implication of property rights may find this alteration to landownership to be inconsequential or even a mere technicality. Taking such a superficial stance on this issue undermines property rights. Rightfully attained property should not be transferred to another party including the government without consent. This issue somewhat mirrors the overextension of civil asset forfeiture in cases of narcotic sales or instances of eminent domain. There may be laws on the books that provided legal justification for such actions. However, it is morally or philosophically justifiable? Could these laws be legitimate due to the fact they are unjust? Depending on your disposition towards property rights the answer can be a resounding no. Through this tacit acceptance of law equating moral correctness, we accept many unjust laws as being legitimate. This in turn transforms the Bureau of Indian Affairs into an institution that is more of an imposition than a facilitator of tribal rights. Inverting property rights, thereby shifting it from a negative right to a positive right. The BIA had the potential to operate in a manner that served to legitimately uphold tribal property rights. Like more bureaucratic departments within the government, it managed to make a bad situation worse. Instead of taking on the role of a property rights arbitrator between Indians and non-Indians, it became a property rights dispensary. Creating a perverse dynamic in which there is an inference that the Pueblos no longer own the land. When it was historically transferred to them by treaty. If this is true then the government has no business managing the land at all. Unless their property rights are being infringed upon. For example, non-Indians encroaching upon their water rights. There is a profound categorical confusion in attempting to protect property rights by first violating them. Making it appear as if it more of the pretext for circumventing Native property rights than defending them.

How to Quantify Indian Water Entitlements: A Lesson From the Ak-Chin Tribe

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One controversy that continues to afflict Indian water rights is that the Winters Doctrine does not provide clear quantifiable limits of water usage entitled to Native tribes.  Typically, legally define water usage limitations by survey and legal recognition is an extremely costly route to take for the tribes (p.286).  The most economical route tends to be through negotiations, administrative action, or legislation (p.286). One such example of this was the Ak-Chin tribe located approximately an hour south of Phoenix, Arizona. Ultimately, resulting in the development of the Public Law 95-328 (1978).

This law was spurred by the drastic decrease in the water table for the Ak-Chin reservation. This being something a substantial blow to the community as at the time they were primarily an agricultural-based economy. It was found that this decline in the water table was the result of the federal government failing to “prevent the mining of groundwater”. Due to this abdication of duty on the part of the U.S. Government, it was held liable to build a spring well and delivery apparatus from federal lands to meet the required amount of water entitled to the tribe through Winters Rights. The law set in motion that an interim supply of water is provided by 1984. That a permanent supply is allocated by no later than 2003 (p.6). The provision of water would be supplied through the Central Arizona Project Aqueduct (p.6). This has resulted in the Ak-Chin tribe expanding their” irrigated agriculture by 10,000 acres” resulting in an improvement in economic conditions on the reservation by 1991 (p.13). Because of the 1978 act and 1984 amendment. By 1993, the tribe had next to no unemployment and no social services expenditures (p.3).

The 1984 amendment provided more than just the interim supply of water needed for cultivation purposes. $15 million was provided for purposes of obtaining usable water. $ 28.7 million was also transferred to the tribe for economic development. The date for the permanent supply of water shifted to 1988 (p. 7).  The amendment expanded water consumption entitlement to “75,000 and 85,000 acre-feet, depending on precipitation levels each year (p.8). This amendment was deemed controversial at the time because it reallocated unused water from the Gila River Project to tribe versus “other state appropriators ” (p.8).

Then came the 1992 amendment to the water activities for the Ak-Chin Tribe. This amendment allowed off-reservation leasing of the Ak-Chin water supply. Considering the ever-evolving nature of American Indian Law there was then the 2000 amendment. Designed to provide great clarity on leasing requirements for Ak-Chin water. Manifesting itself in S. 1913- Ak-Chin Water Use Amendment Act of 1999.

SEC. 2. TECHNICAL AMENDMENTS TO AK-CHIN WATER USE ACT OF 1984.

    (a) Short Title.–This section may be cited as the “Ak-Chin Water

Use Amendments Act of 1999”.

    (b) Authorization of Use of Water.–Section 2(j) of the Act of

October 19, 1984 (Public Law 98-530; 98 Stat. 2698) is amended to read

as follows:

    “(j)(1) The Ak-Chin Indian Community (hereafter in this subsection

referred to as the `Community’) shall have the right to devote the

permanent water supply provided for by this Act to any use, including

agricultural, municipal, industrial, commercial, mining, recreational,

or other beneficial use, in the areas initially designated as the

Pinal, Phoenix, and Tucson Active Management Areas pursuant to the

Arizona Groundwater Management Act of 1980, laws 1980, fourth special

session, chapter 1. The Community is authorized to lease or enter into

options to lease, to renew options to lease, to extend the initial

terms of leases for the same or a lesser term as the initial term of

the lease, to renew leases for the same or a lesser term as the initial

term of the lease, to exchange or temporarily dispose of water to which

it is entitled for the beneficial use in the areas initially designated

as the Pinal, Phoenix, and Tucson Active Management Areas pursuant to

the Arizona Groundwater Management Act of 1980, laws 1980, fourth

special session, chapter 1.

    “(2) Notwithstanding paragraph (1), the initial term of any lease

entered into under this subsection shall not exceed 100 years and the

Community may not permanently alienate any water right. In the event

the Community leases, enters into an option to lease, renews an option

to lease, extends a lease, renews a lease, or exchanges or temporarily

disposes of water, such action shall only be valid pursuant to a

contract that has been accepted and ratified by a resolution of the Ak-

Chin Indian Community Council and approved and executed by the

Secretary.”.

    (c) Approval of Lease and Amendment of Lease.–The option and lease

agreement among the Ak-Chin Indian Community, the United States, and

Del Webb Corporation, dated as of December 14, 1996, and the Amendment

Number One thereto among the Ak-Chin Indian Community, the United

States, and Del Webb Corporation, dated as of January 7, 1999, are

hereby ratified and approved. The Secretary of the Interior is hereby

authorized and directed to execute Amendment Number One, and the

restated agreement as provided for in Amendment Number One, not later

than 60 days after the date of the enactment of this Act.

                                

Indian Water Rights

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Depending on climate water can be as valuable as gold. Under certain conditions, it can be even more so valuable. Water is essential to life and crucial for regular consumption, bathing, irrigation of crops; it is truly the lifeblood of civilization.  If it was for the fertile banks of the Nile river or the rich and saturated soils of the fertile crescent (Tigris and Euphrates) rise of Egyptian and Mesopotamian empires would have never been possible. Water rights for Native Americans have in recent decades become a crucial touchpoint in the federal guardianship dynamics between the tribes and the U.S. government. While rights to water source appropriation generally fall under either riparian or appropriative conditions, how this is applied to Indian Tribes is slightly more complicated. A running motif that is common throughout American Indian Law. Despite the immense amount of complexity facing Indian water rights, considering it is a life-sustaining resource such matters must be sorted out.

Standard Water Rights For Non-Indians:

As mentioned above, water rights traditionally have fallen into one of two legally recognized categories. This includes riparian and appropriative rights to non-navigable bodies of water for consumption purposes. Riparian water rights tend to be applied in the “water abundant” regions of the United States. Particularly the Eastern seaboard of the United States.  Under riparian water rights, owning land or property that borders on a lake or a stream enables the right of the owner to “reasonable use” (p.277). The right to use is directly connected to land ownership. During times of drought the quotas for consumption among the entitled appropriators are reduced proportionately (p.227). Under the conditions of appropriative water rights, the entitlement to water utilization is not tied to ownership of surrounding lands. It is connected to whoever first can put the water to beneficial use. First come, first serve to harvest dynamic. This variety of water rights determination evolved in the western United States back when most of the land was federally owned. Mines were generally constructed far away from usable water sources meaning that transportation of potable water was costly (p.278). Resulting in the development of a first use policy to ascertain the primacy of water rights.  Meaning that “… water rights are not appurtenant to the land…” (P.278). Making precise dates of water appropriation extremely important. Older appropriators possess a greater deal of certainty in the right to utilize water from a specific source (p.278).

Law governing water rights tend to be formulated by the federal government and shaped by “local custom” (P. 279). Congress adapts legislation so that it conforms to the customs and historical practices of the region. This tends to be reflected in laws such as the Desert land  Entries Act (1877) and  43 U.S.C.A Sec. 321-25 (p.279). Appropriative have been applied to the non-navigable bodies of water in CA, OR, WA, NV, AZ, NM, ND, SD. While the framework for these laws has been formed in federal law it is generally governed by state law.  An example being California Oregon Power Co. V. Beaver Portland Cement (1935) (p. 279). How the states handle water rights varies dramatically state by state. Colorado is a 100 % appropriative system. California and Oregon are mixed systems.  The priority of use and “periods of non-use resulting in forfeiture…” of rights varies by states (p. 179).

Development of the  Winters Doctrine

The basis for tribal water rights evolved out of two cases which have resulted in the contextual rules that are now known as the Winters Doctrine. The first case that provided the foundation of this legal doctrine was Winters V. United States (1908). The Fort Belknap Reservation in Montana was created based upon an agreement. In the middle of the geographical territory of the reservation ran the Milk River.  When the land was set aside for the reservation nothing was detailed regarding water rights.  Then non-Indian settlers began building dams with was disrupting water usage on the reservation.  The Supreme Court ended up ruling that the water rights for the reservation were held by the 1888 agreement allotting to the tribe. Treating the right to water usage part and parcel with having the reservation established near a natural body of water (p. 280).

The second case further developing the scope and parameters of the Winters Doctrine came decades later in 1963. This came in the ruling of Arizona V. California (1963). The issue became the U.S. government attempted to establish water rights for tribes residing near the lower Colorado river by executive order. The court held that at the time of the establishment of these settlements water rights were established. Complaints among non-Indian settlers came about the quantity of water allotted to the natives. Citing a sparse Indian population in the “foreseeable future” (p.281). This was rejected on grounds by the SCOTUS that the reservation was “entitled to enough water to practicably irrigate every acre of the reservation” (p.281).

Conclusions of the Winters Doctrine (Winters Rights) (p.282)

“ 1.  Winters’ rights are creatures of federal law, which defines the extent.

2. Establishment of reservation by treaty, statute, or executive order implies reservation of water rights within the boundaries of tribal land.

3. The water rights are reserved as the date of creation of the applicable portion of the reservation. Competing users with prior appropriation dates under state law take precedence over the Indian rights, but those with later dates are subordinate.

4.  The quantity of water reserved for Indian use is that amount sufficient to irrigate all the practicably irrigatable acreage of the reservation.

5. Winters’ rights are not lost by non-use”.

Public Law 280- Only Making Matters Worse

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Navigating through the complex web that is American Indian Law one is bound to come across Public Law 280.  Passed in 1953 by congress, it seeks to grant state authority for matters involving Indian litigants. Effectively reducing federal involvement in such matters. However, will this was a radical shift it was not a complete relinquishment of federal intervention in tribal affairs. As it did not end empower the states with complete jurisdiction. It did not end the land trust relationship between the federal government and the tribes (p.176). The tribes also continued to retain sovereign immunity (p.176).  See California V. Quechan Tribe  (p.176). This shift in jurisdictional authority was not openly welcomed by the states. Congress granted law enforcement to the states without any appropriations to fund such efforts (p.177). The tribes were irked by the fact that state jurisdiction was extended over tribal affairs without their consent (p.177). Unquestionably making federal authorities the bootleggers of this legislative arrangement.

It is important to note that the extent to which a state possesses authority over tribal affairs has varied. The varying levels of state responsibilities have been spelled out in subsequent revisions to the law. Six states were even allotted authority over specific crimes committed by Indians on tribal land.

18 U.S.C.A  Section: 1162a: (P. 178-179).

Alaska- Criminal and civil Jurisdiction over all natives except for those belonging to the Metlakatla tribe

California- The state has been provided criminal and civil jurisdiction over all Indians.

Minnesota- Jurisdiction has been extended to the state except for members residing on the Red Lake Reservation

Nebraska-  The state has been provided criminal and civil jurisdiction over all Indians.

Oregon- Jurisdiction has been extended to the state except for members residing on the Warm Springs Reservation.

Wisconsin-  The state has been provided criminal and civil jurisdiction over all Indians.

In effect enabling the states to have the same authority to enforce the law insider the reservation as they do off of Indian land (p.179).  To prevent any legislative inconstancies Chapter VI, Sec D, Supra; of Public Law 280 includes the verbiage “.. by or against Indians..” (p.179). Handing over full law enforcement authority to the six listed states, minus any noted exceptions. Despite the overreach of state authority over tribal matters, this amendment does not clearly distinguish the role of tribal law enforcement. It is assumed that the tribes can only formulate laws that “…complement state..” (p.180). However, in regulatory areas that are not specified in Public Law 280 such as hunting/fishing rights, tribal regulations, and taxation “… the state lacks general powers…” (p.180). It is slightly reassuring to see that in the context of tribal jurisdiction that “taxation without representation” is being adhered to.

As previously mentioned, Public Law 280 also extends fully civil jurisdiction to the six states listed above.  In other words, the states have been empowered to rule on disputes involving Indians that transpire on Indian soil. This power vested in  28 U.S.C.A. Section 1360a. This amendment side-stepping the ruling in  Williams v. Lee (1959) which resulted in a ruling that the states do not hold adjudicatory power over civil matter arising in Indian country (p.181). However, under section 1360b prohibits the states from making judgments regarding Indian trust lands (p.181). Providing a relatively minor check on state power over tribal affairs.

Odds are congress could not foresee many of the challenges presented by Public Law 280 and its subsequent amendments. Providing the astute observe with a shining example of legislative hubris. One of these noteworthy and burdensome controversies is whether city or county ordinances as civil laws of the state. Questioning whether such municipal laws apply to Indian lands that fall within the town’s geographic boundaries (p.182). The ruling in Rincon Band of Mission Indians V. County of San Diego that “general applicability” extends to state laws and not local ordinances (p. 182). Only adding fuel to the fire, the Ninth Circuit Court expressed that congress “… imposing detailed local regulations upon Indians..” hinders their ability to self-govern (p.182). The Supreme Court has not directly ruled that applying local laws to the tribes is outside of the scope of Public Law 280. However, the SCOTUS has “expressed doubt” that the law enables local towns and counties to do so (p.183).

The second major conundrum conjured up by this superior piece of legislation  (sarcasm) is if the states have the right to enforce the law why wouldn’t they have the power to legislate laws applicable to the tribes? Per the language of  Public Law 280, the states have the power to decide cases, but not explicitly granted the power of legislation (p. 183). There is a portion of the law in which it could be interpreted as granting legislative power to the states.  Stating that “ … the state shall have the same force and effect within… Indian Country as it does elsewhere within the state” (p.183). The SCOTUS ended the intense debate in the ruling of Bryan v. Itasca County (1976). In this scenario, Minnesota County attempted to assess taxes on personal property that was owned by Indians on Indian soil (p. 183). It was argued that since the property being taxed was not trust lands, it was with n the power of the state to collect such taxes. However, the SCOTUS ruled the intention of the civil provisions under Public Law 280 was to enable the states to resolve disputes. However, extending this power to taxation veers outside of the intended scope of the law (p.184-185).

Public Law 280 managed to further complicate the matter of jurisdiction in Indian affairs. The law is inherently unjust, due to the lack of consent on the part of tribal and state governments.  For the applicable tribes in the six referenced states, they have lost more autonomy over governance within Indian territories. The states ended up inheriting higher law enforcement expenditures and more headaches. The matter of jurisdiction was already complex before 280 passing. It only serves to compound an already convoluted situation.  By adding additional intricacies, merely to relieve the federal government from duties that have been traditional held under its jurisdiction. Typically, federalism does appear to an attractive solution to most legal conflicts. Not so much under these circumstances.  The feds are only passing the buck on a mess they created.

If Were to Murder A Non-Indian on Tribal Land….

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Let’s say hypothetically, I am a drug dealer selling fentanyl pills. One of my customers owes me an exorbitant amount of money. I conclude that I need to make an example of this individual. I cannot perpetuate the image of being a pushover and get very far selling opioids on the black market. Beyond that, there isn’t any legal recourse for recouping my money. I don’t believe there is a claims court in the United States that would back me on this one. I need to kill my customer over this nonpayment issue. I plan to meet this gentleman, let’s call him Bob, by a desolate farm located on the Ak-Chin Reservation, just outside of Maricopa, Arizona. Bob is under the impression that we are meeting to discuss a “peaceful” resolution to our dispute over the pills. When we meet, Bob extends his right hand for a handshake. I clasp onto Bob’s right hand while concealing a switchblade in my left hand. As Bob pulls me towards him for a “pound-hug” I stab him five-times in the abdomen before he can even say “What’s up”. I then quickly vacate the scene of the crime. Leaving Bob to die. Then days later I am apprehended by the authorities.

Does the question become which law enforcement agency took me into custody? After all, the astute observer would notice this crime transpired on tribal land. As a legal matter when it comes to crimes committed in “Indian Country” the situation becomes quite convoluted. The core complexity of American Indian Law (law about the relationship between the federal government and the sovereign tribes) is the dispute over jurisdiction. However, depending on the location, the nature of the crime, and the tribal status of the persons involved will sway the needle on which law enforcement agency needs to intervene.

Determining jurisdiction for crimes committed in “Indian Country” used to be a simple matter. During the colonial period, the tribe had authority over any crimes committed within a tribal territory (p. 103). After the end of the Revolutionary War, the federal government assumed jurisdiction over crimes by non-Indians perpetrated against Indians on tribal lands. As a means of creating a “buffer” between the competing interests of the two populations (P.104). The federal authority of crimes committed in “Indian Country” was formally extended to the U.S. government through the Federal Enclaves Act. Over the years have undergone various statutory revisions (P.104). Per William C. Canby Jr. the ruling on Ex parte Crow (1881) set the precedent pattern for federal authority being extended in cases of Non-Indian on Indian crime being addressed by the U.S. government. Indian on Indian crime being handled by tribal governments (P.104). The Supreme court initiated this pattern of judicial decision making through ruling that the Enclaves Act excludes federal intervention in Indian on Indian crime.  In the Crow case, the involved parties were both of tribal affiliation and the shooting transpired on the Great Sioux Reservation. Placing jurisdiction squarely on tribal authorities.

In reaction to this ruling, congress then went on to pass the Major Crimes Act. Which extended federal authority to seven crimes even if they were committed on Indian soil (p. 105). Chief Justice Marshall’s ruling on  Worcester v Georgia set the tone for tribal jurisdiction for the next fifty years (p.108). In this case, George residents were living within the bounds of tribal land without proper permission.  Marshall struck down any action on the part of the state government noting it was outside of their legal authority. Stating on Cherokee land “… the laws of Georgia can have no force…” (p.109). This decision was held until fifty years later when the criminal jurisdiction question become muddied. While the matter of jurisdiction more clearly defined for Non-Indian on Indian crime and vice versa on tribal land, what about Non-Indian on Non-Indian crime on tribal land? Would the tribal authorities have the jurisdiction to punish the offenders?

This leads us to the 1881 case of United States V. McBratney. A case where a Non-Indian man killed another individual who did not have any tribal affiliations on the Ute Reservation in Colorado.  Surely the tribe would have authority over this crime? If not the tribe, a division of federal law enforcement due to the federal government’s guardianship of the tribal nations? The Supreme Court saw the situation in a different light. Departing from the previously established judicial conventional wisdom.  The high court ruled that federal authority could only exercise legal jurisdiction “over places where they have exclusive jurisdiction” (p.110). This unorthodox ruling was based upon the premise that Colorado was to be admitted to the Union on “… equal footing with the original states…”. Meaning that on Non-Indian on Non-Indian crime, Colorado’s laws extended throughout the boundaries of the state. This also includes the Ute Reservation (p.110). Needless to say, detractors criticized this decision because it conflicts with the precedence established in Worcester V. Georgia (p.110).

After I killed Bob, I was arrested and tried in court by the state of Arizona. Since neither Bob nor I were a member of any recognized tribes. If I was under the impression that committing the crime on the reservation would save me from state persecution, that was a foolish assumption.  However, considering the rural terrain of the reservation ,it was the prime location to dispose of a body.  

P X L > C and Liability

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Law and economics would superficially appear to be two disciplines with little interdisciplinary overlap. However, the marriage of the two fields of study has proven to be invaluable in the process of gaining a better understanding of social and political institutions. While the Virginia and Chicago Schools of political-economic have cozy relationships with legal studies, neither were the first to incorporate law and economics. It was the New Institutionalists who first melded the two fields together. The New Institutionalists built upon the work of  Thorstein Veblen and Ken Galbraith with the powerful tool of Marshallian econometrics. Through adapting neoclassical methodology the New Institutionalists were able to provide simultaneously quantitative and qualitative analysis. Progressing both law and Institutional into the realm of the soft sciences.

Welding the overlay of neoclassical economics can legal studies apply equations and utility functions to make accurate decisions on legal issues? Quite possibly. Applying this method in both fields of study can lead to faulty conclusions. Economic modeling assumes ceteris paribus, “all things being equal”.  In other words, presuming all variables remain constant. Such conditions can only be truly held under experimental conditions. However, the resulted yielded may provide us with some important insights even if they do not perfectly mirror actual market conditions.

One nagging issue afflicting court decisions is determining liability in Tort law. Where does the responsibility of the litigant begin and the liability of the defendant end? Ascertaining negligence in many of these scenarios may not be clear cut without precise standards. Thankfully Judge Learned Hand devised an interesting solution that intertwines the methods of law’s sister discipline of economics. Back in 1947 (P.193), Judge Hand formulated an algebraic equation to assess blame in tort law. It is a relatively simple set of computations:

 P= “The probability of Injury”

 L=  “Extent of injury or loss”

C= “The Cost of implementing measures to prevent the accident”

The Equation fully expressed reads as  P X L > C (P.193). Per Hand’s equation, a business or individual is negligent and liable for damages “ if the probable injury to the victim exceeds the costs of avoiding the accident” (P.193).  This equation does condense the decision down to neatly packaged economic contingency. For that alone, this is quite the feat.  Even though I am a layman when it comes to law and economics, there are cases where I could see Hand’s formula failing to accurately assess liability. In terms of ligation for medical costs associated with foodborne-illness, this matter becomes much murkier. In some instances, such as the lawsuits laid against Jack in the Box in 1993, the question of probability is much more clear. Some of the individuals infected with E.coli were served undercooked hamburgers. Serving undercooked meat increases your risk of transmitting food borne-illnesses. Properly training your staff to thoroughly cook the burgers is relatively cost-efficient.

However, let’s consider an example of a food poisoning case whereby metric of Hand’s formula we may run into some difficulties.  For instance the 2009 case against Caudill Alfalfa Sprouts. Many people who consumed the produce cultivated by this company were sickened with Salmonella. How would this company have been able to prevent this outbreak of salmonella? Were officials at the CDC even able to pinpoint the source of the bacteria? Was it due to contaminated water from the irrigation system? Was it due to wildlife defecating on or near Caudill’s crops? When it comes to the ligation involving contaminated crops Hand’s formula is maybe too simplistic. If it is well-established knowledge that irrigation systems have a propensity for harboring salmonella, the accessibility of low-cost water testing procedures and filtration devices may place liability upon the company. How do you gauge salmonella bacterium getting into the water supply that irrigates the crops what if this occurrence is somewhat of an anomaly? Some would retort back stating that this would be weighted in the equation by the probability value.  Unfortunately, there are qualitative attributes specific to the context of the case that cannot simply be quantified.

Despite its faults, in most applications, Hand’s formula provides a reasonable approach to determining negligence.  In certain circumstances, I would be wary of applying the equation. However, in most instances such as a car accident or a slip-and-fall scenario, the formula should work swimmingly. Having devised this computational approach was quite innovative on Judge Hand’s part.

Trump Appointing A Supreme Court Nominee Late in The Election Cycle: Is This Legal?

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The Trump administration has drawn some controversy by appointing a Supreme Court Justice less than 90 days away from the presidential election. The president has declared Saturday he will publicly announce his replacement for longstanding Justice Ruth Bader Ginsberg. Many pundits find this move distaste full for two main reasons.  First off, this decision is being made only eight days after the passing of Justice Ginsberg. The other concern is Trump selecting a justice within months of an election. Public sentiment seems to be leaning towards allowing the winner of the 2020 election to fill this vacancy. The issue with public sentiment is that it seldomly considers the law of the land. Often is fueled by visceral passions more so than reason.

However, I would be derelict in my duties as an armchair commentator if didn’t voice some criticism of the Trump administration. Let’s face it, even if Trump does not get reelected, filling the vacancy with another conservative justice will contribute positively to his presidential legacy. Help retain a strong right-wing influence even if Joe Biden is elected. Making the action of quickly selecting another justice before the election boldly strategic.  Before you dog-pile on trump, just remember this variety of behavior is common among presidents at the end of their term. Prior to Obama leaving office he passed a record-setting number of regulations. Why would any elected official do this? Because they are making a last-ditch effort to implement any agenda focal points that hadn’t been previously enacted. Once you hit the level of President of the United States you are no longer vying for money or power. You are vying for your legacy. Imagine what the paragraphs under your photo in a history textbook will convey. The portrait of a strong leader or that of a half-witted and cowardly buffoon.  

The real question should be is it legal for Trump to appoint a new justice this late in the election cycle? Formally, there isn’t anything legally holding him back. The decision of whether to make this selection is more a matter of adherence to social conventions than being a legal matter. Historically, there was only one other instance of a Supreme Court Justice passing away within 90 days of a presidential election.  This was the passing of Justice Taney 27 days before the election of 1864. Lincoln opted to delay the appointment until reelection. What most people express precedence dictating that the present should wait until the election is over before appointing a new justice is invoking the Thurmond Rule. This informal and dates back to Senator Thurmond blocking LBJ’s appointment of Abe Fortas to chief justice. When Antonin Scalia passed away in February of 2016 republicans cited the Thurmond Rule in their objection to Obama selecting a new Justice in an election year. Clearing there is nothing legally binding that prohibits Trump from making the appointment.

Considering that Trump’s decision is legal, any concerns are more aimed at him not respecting social conventions. If you are attempting to cultivate a positive public image, being so bold and brash might not be the best strategy. Then again we are discussing a president who ascended to his lofty perch by breaking ties with social conventions. Coincidentally, it has been somewhat effective. Then again, this may have been unique to the peculiarities of the 2016 American culture. Seldom does drifting away from a Nash-Equilibrium strategy ensure success.

Public Schools, Condoms, and Parental Rights

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Sex Education curriculum has remained a topic of fierce debate in American public schools over the past several decades. Especially controversial, initiatives where schools distribute condoms to students without the consent of the parents. The schools believe they are providing a public service through dispensing prophylactics to students who may not access to such precautions otherwise. Parents with more of a conservative disposition feel that through providing contraceptives to their children the schools are attempting to undermine the values of the student’s household. Any impartial observer free of any ideological inclinations would see sound logic in either premise. School administrators have good intentions. The concerned parents have sound moral concerns. Despite whether their concerns are originating from religious convictions or pragmatic qualms about encouraging sexual activities among teenagers.

How does American law view the issue of distributing condoms in public schools? It would be reasonable to assume that schools funded with tax dollars should not be overtly promoting partisan values. Through providing condoms to students school officials could be implicitly be condoning pre-marital sex. Which may conflict with the religious beliefs some the parents wish to instill in their children. This dynamic of sex education in public schools presents an important question, where do the rights of the parents come in? These parents who take offense to such programs are effectively having their tax dollars utilized to fund initiatives that they find to be immoral. Their children can participate without any notification to the parents or the written expression of consent. That’s truly where the issue becomes problematic. Unfortunately, the law does not see eye to eye with the concerns of socially conservative parents.

One case that examined whether distributing condoms to students without prior parental consent was unconstitutional was Curtis V. School Committee of Falmouth (1995). In this scenario, a school nurse dispensed condoms to every student in school grades seven through twelve. Then a group of concerned parents challenged this action on the part of the school stating that they have the right to be notified. Also, asserting that parental consent should also be obtained before the school providing condoms to students (P. 431). The court countered this claim by suggesting that state action only violates “parental liberty” only when it is “coercive or compulsory”. That distributing condoms in such a fashion was neither due to students not being required to accept them. Therefore, it does not circumvent the authority of the parent. The ligating party found this premise to be false, arguing that this action was coercive and compulsory. Due to this fact, these contraceptives were being provided in public schools that have compulsory attendance requirements (P.431).

The Massachusetts Justices found little validity in these repudiations and ruled against the parents. The Justices acknowledging that providing condoms to students was a non-medical service. However, they found that there was no Constitutional precedence for requiring parental consent or an option to opt-out. Also, did not find this compulsory in any context. Proceeded to then state that parents do not have the right to “tailor public school education” (P.432).

Whether you are personally in favor of sex education or not it is difficult to not be troubled by this verdict on the part of the Massachusetts Justices. This court decision gives deference to the authority of the public school system over that of the digression of parents. It is difficult to justify such an overreach. This is a prime example of the structural apparatus of the law bulldozering over the rights of the parent. Especially when it would have required little in the way of time and resources for the school to issue permission slips. It perplexing how your child needs a permission slip to go to a museum, but not to receive a condom. Shouldn’t the school have the permission of the parents in either situation? Schools intend to educate children. Sex education is in of itself is one thing. However, distributing condoms takes on another tone. Through directly providing condoms to students without parental consent the school has gone too far. The parent does have the right to object or want to shelter their child from such realities. This may not be the most prudent or realistic approach, however, that is irrelevant. Unless a parent is abusing or neglecting their child, they have a right to raise their child as they see fit. Public schools being appendages of the government do not have the right to interfere with the child-rearing process. This topic provides greater insight into why parents are turning to the unschooling movement in droves (even before the pandemic).

Extracurricular Activities: Legal Right or A Privilege

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Is the ability for students to participate in extracurricular activities a
right or a privilege? Many young people mistakenly believe that it is a right.However, in the eyes of the law, it is a conditional privilege. Much to the chagrin of hyperbolic teenagers. School districts reserve the right to make satisfactory academic performance a contingency for participation in interscholastic sports. However, there was one aspiring student-athlete inTexas bold enough to challenge this assertion. Resulting in the ruling of Spring Branch I.S.D V. Stamos. Needless to say, the court’s verdict did not
favor the underachieving student-athlete.

Continue reading “Extracurricular Activities: Legal Right or A Privilege”

Drug Testing In Public Schools

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The right to privacy is fiercely defended liberty in the United States. Codified in the Fourth Amendment of the U.S. Constitution is considered a treasured bulwark from unnecessary surveillance. However, much like any of the other liberties guaranteed to American citizens, it is not without constraints. In certain contexts, our right to privacy is relinquished due to superseding parameters. For example, while in public our right to privacy is loosened.  Also, in the advent of a criminal investigation. If there is probable cause or a search warrant, the interest of the public good takes primacy over the rights of the individual. It may be fair to debate the ethics of subverting individual liberty for the common good, but the law is the law.

It has been well established that while on the premise of public school students do not always have a reasonable expectation of privacy. The degree to which underage students do have a right to privacy is a difficult matter to clarify. The subject of mandatory drug tests on school grounds is no less murky. Much like another Fourth Amendment controversy the conclusion is heavily contingent on context. It is the contextual details that form the line of demarcation between legal and illegal conduct. As a general rule of thumb, subjecting students to random urinalysis testing is legally questionable without extenuating circumstances (P. 256). The defining case for a student drug test was Vernonia School District V. Acton. The Vernonia School District adopted the requirement of a drug test as a prerequisite for participating in interscholastic sports programs. It was ruled that the interest of ensuring the safety of the students took primacy over any privacy concerns. Especially considering the means of administrating the drug test were viewed as being “minimally” invasive.  Pertaining specifically to a drug-testing requirement to play sports the late Justice Scalia observed that students have the same expectation of privacy as the general population. This is even more so true for student-athletes (P. 257).

Perhaps it fair to concede that dispensing with a small amount of privacy is the nonmonetary price to play varsity football. It may even be reasonable to assume that the individual student values the opportunity to play football more than the privacy they surrender. In terms of this contingency being subjected to drug testing is completely voluntary. Mirroring the hiring procedures of many private corporations. If you don’t want to undergo the test don’t accept the job. Likewise, you can elect to simply not play basketball. This issue becomes profoundly more problematic when it is involuntary and without suspicion.

Unfortunately, the Anderson Community School Corporation in Indiana decided to push the envelope on the issue. The school district decided to form a policy where drug tests were mandated for any student suspended for getting into a physical altercation school grounds. Refusal results in either an expended suspension or expulsion (P.257). The school district cited the loose correlation between the pharmacological effects of drugs and violent behavior for justifying this policy (P. 257). Needless to say, a student, James Willis, did challenge this policy. The supreme court declined to review the case citing the decision in Vernonia. However, a silver lining to the question of in-school drug testing procedures came when the Tenth Circuit Court of Appeals rejected the requirement of drug testing for non-athletic extracurricular activities (P. 258). In the 2002 ruling Board of Education V.Earls, the supreme court held that it was reasonable to subject all students participating in extracurricular programs to drug testing.

I have some strong reservations for endorsing drug testing in public schools. The duty of preventing and intervening in instances of drug use is the responsibility of the parents. However, I can concede drug testing to participate in extracurricular activities providing this requirement is articulate to the students.  Since participation in such programs is completely voluntary and analogous to drug testing requirements for a job. The problem becomes when school districts engage in a form of “mission creep” with a loose application of the Vernonia case. Mandating drug tests as a condition for returning to school after being suspended for fighting is truly invasive.  Not to mention coercive. The offense at hand is engaging in violent behavior. That alone isn’t enough evidence to assume a probable cause for drug use. Not from a legal standpoint necessarily.  but from the standpoint of deductive reasoning. While the Anderson Community School district did not punish students for a positive test, they did require the student to seek help. This blatantly veers into the responsibilities of the child’s parent or guardian.  

Affirmative Action, Public Schools, and Tenure

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Decades ago, Affirmative Action programs were implemented to combat discrimination in the workplace.  Generally, imposing specific hiring quotas upon employers to provide career opportunities to historically disadvantaged groups. Like many initiatives designed to curtail injustices, there are blind spots in these anti-discrimination laws. For instance, how are quota systems impacted by layoffs? Does the employer have the legal obligation to maintain racial or gender quotas even when amidst downsizing?  How do tenure and seniority play a role in this decision-making process? As any astute reader can infer attempting to balance out all these complex factors quickly degenerates into a muddled mess. Generating a large array of various legal conflicts, ranging from contractual obligations to employees to comply with workplace discrimination laws. The fallout of the downstream consequences that were never initially ironed out.

The intricacies of such conflicts are particularly salient in the sector of public education. Throughout the 1970s and 1980s, several cases tested whether mandated quotas superseded tenure. As could be reasonably anticipated these cases have resulted in some mixed rulings. For example, in the city of Boston, Massachusetts when budget cuts forced the school district to layoff faculty members the issue was complicated legally mandated racial hiring quotas. The school district opted to ignore the tenure of seasoned Caucasian faculty members in favor of maintaining their racial quotas. This decision by the administrators of Boston schools resulted in several lawsuits (P.311-312). Unfortunately for the teachers pursuing damages the District Court and Circuit Court of appeals ruled in favor of maintaining the quotas (P. 312).  This ruling cited Milliken V. Bradley providing the rationale for desegregation plans taking primacy over seniority.

A similar case took place in Buffalo, New York. Resulting in the verdict of Arthur V. Nyquist which again ruled in favor of maintaining racial employment quotas mandated by Affirmative Action laws.  The court stated that such quotas are valid and supersede tenure unless it is a “ …demonstrable necessity that their rights have been impaired..” (P.312). Examining this pattern in court decision it is easy to superficially interpret these rulings as displaying an institutional bias favoring Affirmative Action.  The issue isn’t quite so linear once when you look at other cases examining the interaction of anti-discrimination laws and tenure in the public school system.

One prevalent example of the courts ruling in favor of faculty tenure over racial quotes was in the early 1980s. The Sixth Circuit Court of Appeals ruled that “contractual and statutory tenure rights” took primacy over quotas (P.312).  Resulting in the case precedence established under Oliver V. Kalamazoo. The question becomes why did the court of appeals rule in favor of faculty tenure in this case?  The court stated that over the past decade the school district had made a “good faith effort” to remedy any effects of past discrimination. Stating that tenure rights should only be subordinated when “reasonable” to do so (P.312). Judging by the context of the ruling in the Oliver case it would be easy to assume that the courts will giver deference to tenure rights if the school district has shown considerable progress in desegregation. While this may sound like a reasonable concession, it is profoundly problematic.  How do you measure “progress” or a “good faith effort”? One can only assume these qualitative metrics are fulfilled if mandated quotas are consistently maintained. What if a school district is only maintaining the quota by a margin of one employee?  What if this employee needs to move out-of-state to take care of a sick relative?  The school district would no longer be compliant. This becomes particularly onerous if the school district is in a region of the United States that lacks ethnic diversity.  If the nearest qualified African-American teacher is hypothetically hundreds of miles away the school district may be out of luck. So then, if another court case comes up and the school district has had issues meeting racial hiring quotas the contractual agreements of the teachers may be put on the backburner. This is concerning because if this country does not uphold property rights and contract enforcement it has fundamentally failed its citizens.

Then finally we come to Wygant V. Jackson which was decided in May of 1986.  In this case, the school board included the plan to maintain racial quotas when layoffs occur in the collective bargaining contract for its faculty (P.312). However, the Supreme Court found this contract contingency to be unconstitutional. Citing the United Steel Workers V. Weber in their decision. Declaring that unless there was solid evidence of past discrimination contractually binding tenure rights take precedence over racial quotas (P. 313).

One of my favorite sayings is “ The path to hell is paved with good intentions”. Some of the downstream ramifications Affirmative Action laws embodied the wisdom in this old idiomatic statement. The unadulterated goal of Affirmative Action laws is laudable but is too broadly applied. While this conflict between tenure rights and racial quotas may have not been foreseeable, it exposes the Achilles’ Heel of top-down government solutions.  It is impossible to plan for every conflict that can arise from a loophole or other notable blemish in the legislation. Being more Hayekian in my worldview I am more inclined to view these flaws as a result of asymmetries in information. Reminding us that most government initiatives fall flat in attempting to achieve their lofty goals.  

The Legislation and Special Education Services

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The the legislative roots of Individualized Education Plans (IEPs) date back to the education reforms of the 1970s. However, IEPs were not mandated until the 1990 IDEA Act. Acting an amendment to the EAHCA Act of the 1980s.

Interestingly enough,  much of the legal justification for catering to special needs students was derived from the landmark case Brown V. Board of Education (1954) (P.347). This interpretation is somewhat of a novel application of the case. Citing how the case made a strong argument for equal access to education was not only important for civic and professional development but a right to all children (P.347). Per the literature, there are two categories of discrimination that children face in terms of receiving appropriate accommodations in education; exclusion and misclassification. An example of exclusion would be “grossly inappropriate placement” such as placing a non-English speaking student in an English speaking classroom without an English-Second Language paraprofessional (P.348) Misclassification is defined as incorrectly assessing, monitoring, or placement of a student with learning difficulties (P. 348).

While Brown may have been the philosophical roots for the special education movement in the United States, two cases operated as the primary impetus for this change in educational accommodations. There was the PARC v. Commonwealth of Pennsylvania (1972)  ruling. Which found that denying children the right to education was unconstitutional under equal protection and due process clause (Page 348). The second defining a Constitutional precedent against discriminating disabled children from access to education was 

 Mills V. Board of Education (1972). The court ruled in favor of not shutting out children with intellectual disabilities out of the chance of being educated. Also that economic constrains shouldn’t stymy this process, in other words, the cost of additional accommodations shouldn’t be borne by the parents(p.348).  Both laws provided the framework for federal legislation addressing the educational rights of children with learning difficulties or disabilities.

The first federal law implemented to address the educational needs of disabled children was Public Law No. 94-142.  Passed by Congress back in 1975 was designed to make public education inclusive to disabled children.  It was approximated at the time that as many as 1 million American children had been excluded from public education (P. 349). The law was intended to provide free and adequate accommodations to disabled children ranging from the ages of 3-21 years old. However, considering education is generally a responsibility of municipal and state governments the law cannot supersede the age ranges specified under state law (P. 349). One exception did arise in 1986 with the advent of Public Law No. 99-457, which operates as an amendment to the 1975 law. This amendment mandated extending the terms of Public Law No. 94-142 to infants and toddlers with developmental disabilities (P. 349).

From a legal standpoint what can be defined as an “appropriate” education for a child with learning difficulties? It is not sufficient to merely provide equal access to education under federal law. Failing to provide special provisions to a child with special needs would make the learning process impossible. In legal terminology it has been referred to has functional exclusion (P. 350). The 1975 case Fialkowski V. Shapp brought forth case precedent for defending plaintiffs against function exclusion through a school lacking appropriate provisions to accommodate the student.  What accommodations and course of action are required for each child is determined under their IEP. This legally binding document that provides a tailored and consistent educational approach to help students learn despite their intellectual or physical deficits. These plans are calibrated and readjusted based upon “periodic” assessments of the student’s progress (P. 350.). Instead of a static approach that does not take into account potential changes in the educational needs of the student.

While Public Law No. 94-142 may have provided educational opportunities for those with learning difficulties or limited learning capacity; what about children that are deemed with no capacity for learning?

It is profoundly difficult to determine whether a child can learn or not, even with empirical measurements and assessments. A nonverbal child obviously cannot articulate their comprehension of classroom material, making thus determination much more complicated. A 1989 case,  Timothy W. v. Rochester, New Hampshire School District (1989), grapples with this conundrum in the sphere of public education. Does the extension of access to equal and appropriate educational services include children that are arguably uneducable?  The ruling was the byproduct of a nearly decade long legal battle between Timothy’s parents and the School district of Rochester, New Hampshire. Timothy suffered from cerebral palsy, cortical blindness, spastic quadriplegia, a multitude of intellectual and developmental disabilities.  In 1980, the school board commenced a meeting to determine whether Timothy qualified as “educationally handicapped” under the EAHCA and the corresponding state statutes”.  The school board deemed that he did not qualify due to the severity of his disabilities. Then in 1984, the family’s attorney filed a suit against the school board for violations under the EAHCA and the Fourteenth Amendment’s equal protection and due process clauses. It was ruled on May 24th, 1989, by the  U.S. First Circuit Court of Appeals that special accommodations are to be made for students with disabilities regardless of the extent of their disabilities. This ruling stems from an interpretation of the EAHCA that all children with disabilities irrespective of their learning capacity has a right to special provisions in public schools.

Editorial Note:

The purpose of this essay is a brief survey of the history of Special Education law in the United States. I am not presenting any arguments for or against legislation directed towards providing accommodations for students with special needs.  I found the legal history of this development in public education to be fascinating. I apologize to my regular readers if this post was a bit boring. I happened to obtain a used education law textbook a few months back and have been enjoying this intellectual journey immensely. However, one point of speculation on the Timothy W. v. Rochester case.  As a former New England resident, I can tell you New Hampshire has politically been something of an outlier in deep blue electorate of New England. Traditionally, New Hampshire has been a red state.  In recent decades it has morphed into more of a swing state. The electoral history of the state is pertinent to this ruling because one can only surmise how it was perceived by residents and elected officials. There most likely was a pundit somewhere in the state that griped about the ruling being overreach on the part of the federal government. There is an argument for this point, as education has traditionally been a responsibility of state governments. Does the moral imperative of providing equal access to education for all trump the necessity of constraining federal intervention in state matters? That is a difficult question to answer with a simple yes or no response. However, dispensing with any strong ideological proclivities, I would have to say that the answer lies within striking a nearly unobtainable balance. The opportunity costs of either position needs to be carefully weighed before we hastily make any conclusive claims.  

Gonzales V. Raich- Medical Marijuana and Federalism

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Introduction:

 

When medical marijuana was first legalized back in 1996 it presented a bit of a conflict for law enforcement. Even though Marijuana could be prescribed for medical purposes in California, it was still a banned substance under federal law.  Twenty-four years later Cannabis remains prohibited under federal law remaining a Schedule I drug.  Under this classification, a drug is deemed as having no medicinal value and a high potential for abuse. Even though medical Marijuana is presently legal in 33 states. The conflict between state law and federal law in the sphere of regulating Cannabis has created a plethora of issues. Among these issues have been inconsistent rulings on the behalf of the Supreme Court. At times striking verdicts that circumvented state authority and gave deference to the jurisdiction of the federal government. At best, these rules are Constitutionally questionable.

 

One particularly noteworthy example of this confusion of jurisdiction transpired on August 15th, 2002. Angel Raich and Diane Monson, two card-carrying medical Marijuana patients, were subjected to a raid by the DEA and the local sheriff’s office. Despite the fact their Marijuana consumption and cultivation were legal under state law “..federal agents seized and destroyed all six of … Cannabis plants..” on the property. Unfortunately for the respondents, the Supreme Court did not rule in favor of their case, Gonzales V. Raich (2005). The court found that congressional authority under the Controlled Substances Act (21 U.S.C. 801) superseded the Compassionate Care Act passed at the state level. Why would the court side with federal authorities on this matter? This incorrect judgment by the Supreme Court is possibly rooted in a misapplication of the Commerce Clause. This clause on the Constitution grants Congress the authority to regulate intrastate trade. It is perplexing that the Supreme Court would find the parameters of this congressional function to be so malleable that it could be extended to a medical plant cultivated solely for personal use. Effectively allowing federal agencies under the egis of congressional law to interfere with the affairs of California.

 

Legal scholar Randy E. Barnett found that the Supreme Court had misapplied the Commerce Clause in this case. Due to the court’s loose definition of economic activity. It can even be argued that they also misinterpreted the past cases cited in their decision. United States V. Lopez (1995)limits the substantial effects doctrine to intrastate activities that are economic in nature” (P.5). Meaning that Congress would have had the authority to intervene in the matter of medical Marijuana cultivation if it stood to impact the national economy. Here’s where the Supreme Court engages in the aerobatic feat of fitting non-economic activities into the model of economic conduct. Analogous to fit the square block into the proverbial round hole. Through applying the Larger Regulatory Scheme Doctrine the court was able to loosely define  Raich and Monson’s conduct as “economic”. Utilizing what Barnett refers to as a “fungible goods rationale”, essentially inferring that the production of marijuana influences the national supply of the commodity (p.7). Aside from merely grasping at straws with this determination it completely ignores the purpose of the complaints growing marijuana in the first place, relief from chronic medical conditions. In light of the opioid epidemic would it be fair to confiscate legally prescribed Vicodin tablets due to this medication having the potential of being illegally sold on the black market? No. However, Vicodin also isn’t illegal at the federal level. Leaving open possible speculation that this application of law overtly discriminates against medical Marijuana.

 

The ruling in Gonzales V. Raich demonstrates an inconsistent stance on striking down the use of the Commerce Clause by federal authorities to unjustly meddle in state matters. In the two cases cited by the court United States V. Lopez (1995) and United States v. Morrison (2000) it was held that the Commerce Clause was not applicable due to the non-economic nature of both cases. If an individual were to examine the context of Gonzales V. Raich it would be easy to see that it too is not enforceable under the Commerce Clause. Rather it was an example of gross abuse of power that is not even Constitutional allocated to federal agencies.

 

 

United States V. Lopez (1995)

 

Back in the early 1990s 12th grader, Alfonzo Lopez was charged with bringing a concealed handgun to school. He was initially charged under Texas law and a day later the charges were dropped.  Subsequently was charged by federal authorities for violating the Gun-Free School Zones Act of 1990.  Lopez was found guilty on federal charges and was sentenced to six months in prison. Federal authorities citing the Commerce Clause as their justification for intervention. The appeal on this case did end up reaching the Supreme Court where it was ruled unconstitutional for Lopez to be charged under the Gun-Free School Zones Act.

 

Per Oyez it was ruled:

Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with “commerce” or any sort of economic activity.

 

It is profoundly confusing that this case was cited in Gonzales V. Raich, yet the general principle did not seem to transfer to from United States V. Lopez. Much how it is a gargantuan leap to assume that gun possession in a school zone would automatically lead to distribution in intrastate economic activity. It is equally faulty to assume that the production of Marijuana for medical purposes is overly economic. If there is not any concrete evidence that either Monson or Raich had an intent to resell their prescribed Cannabis, then the “economic” argument seems to falter. Similarly, in the Lopez case, the economic argument is at best grasping for straws. Unless there was solid evidence that Lopez was planning to rob a bank after school, it is hard to say that the federal authorities were upholding the stability of intrastate commerce.

United States V. Morrison (2000)

 

In 1994, two male students attending Virginia Polytechnic Institute ( now known as Virginia Tech) raped a female student. Then in 1995 the female student file a complaint under Virginia Tech’s sexual assault policy. One of the male students was immediately suspended for two semesters and the other was able to go on with impunity. When the student who was punished sought an appeal and his punishment was found to be “excessive” and was “set aside”. The female student did end up unenrolling from Virginia Tech. Then subsequently sued both the school and the two males students under the Violence Against Women Act of 1994. A federal law designed to curtail violence targeted at women. It was ruled that utilizing the Commerce Claus to enforce the VAWA was unconstitutional. While abhorrent, violence against women does not disrupt interstate commerce. In terms of delivering justice in this case of disturbing sexual violence that falls upon the commonwealth of Virginia.

 

It is important to note that Justice Rehnquist who delivered the majority opinion did not tacitly condone the actions of these two men. Rather, he was attempting to uphold the proper application of federalism.

[i]f the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of…Morrison. But under our federal system, that remedy must be provided by the Commonwealth of Virginia, and not by the United States.”

 

The Morrison and Lopez cases only make the ruling in Gonzales V. Raich more dubious. If we can allow the states to regulate non-economic violent crime why cannot we do the same for non-violent drug laws? The lengths the court went to frame Monson and Raich’s cultivation of Marijuana as economic and therefore require federal intervention defies reason.  Also, gives credence to professor Barnett’s stance that this case was a devasting blow to federalism in our legal system. Potentially washing away the gains made in the Lopez and Morrison cases. Who gets hurt by such fallacious judgments by the Supreme Court? Medical Marijuana patients who are grappling with a multitude of various debilitating conditions. However, fortunately, the tide does seem to be turning as far as Marijuana is concerned. After all, years later public opinion has come around for not only medical use of Cannabis but also recreational use. Medical use is presently legal in 33 states and recreational use is legal in 11 states plus Washington D.C. That in of itself could be viewed as a larger long-term win for federalism. The lingering potential for the federal government to usurp functions that should be within the state’s power still exists. Only time can tell if on a later date the federal authorities opt to intervene in the seasoned recreational market of a state like Colorado or Washington.

 

Also, please see click here to see the story of Angel Raich.

 

 

 

 

 

 

 

 

Can a Communist Be A Public School Teacher?

 

 

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Introduction:

 

The right to free association is generally one that is generally perceived as being connected to the First Amendment. It could be argued that is more of a corollary of the principles of free expression that is implicitly protected under the Constitution. It developed conceptually as a protected form of expression back in the 1950s and 1960s. One of the cases of the era, NAACP v. Alabama (1958) where the state of Alabama attempted to weaponize state law to discriminate against the organization. Considering that free speech has its limitations, it would be only logical to assume that there are forms of association that are unlawful. For instance, the area of gang affiliation becomes quite murky and the legality is based upon an individual’s interpretation of the right to free association. Some have argued that free association is only extended to peaceful assembly. In Arizona state statute ARS 13-2301 implies that membership in of itself contributes to criminal activity, making it a crime.

 

Does the right of free association extend to employees in the public sector such as school teachers? It does. Meaning your child’s school teacher (providing they attend a U.S. public School) could be a Communist or even a Nazi. The prospect of this being a reality is quite slim considering the majority of Americans avoid embracing extreme ideologies. However, theoretically, there is nothing wrong with a public employee subscribing to the views of the subversive group.  Oaths of loyalty were administered to public employees during the Cold war-era as a means of curtailing the spread of Soviet ideology. Over the years the courts have ruled that these oaths infringed upon the right of free association of government employees. In theory, making it possible for your child’s first-grade teacher to be a dye-in-the-wool Maoist.

 

Keyishian v. Board of Regents (1967)

 

One of the earlier cases addressing the right of free association for educators was fought at the collegiate level.  The facts of the case detail how the University of Buffalo became a public institution when it merged with the State University of New York system back in the early 1960s. Professor Henry Keyishian was then subjected to having to take an oath that has never been nor was he a member of the Communist Party. Presumably complying with state law at the time. Professor Keyishian proceeds to sue the board of regents because having employment contingent on such an oath was unconstitutional.

 

In the end, the courts had concurred that forcing public servants to take such an oath was a violation of their rights. Per Oyez:

Because the country had an interest in protecting the First Amendment rights of teachers for the educational system to be as free and open as possible, such overly broad and vague requirements both violated the teachers’ rights and were detrimental to the profession. The Court held that the government could only regulate First Amendment rights with “narrow specificity.” The Court also held that specific provisions of the Civil Service Law and Educational Service Law were too overly broad because they prohibit membership in the Communist Party without determining whether or not there was any specific intent to overthrow the United States government.

 

Establishing that even if a public servant’s personal beliefs may be extreme or deviant, this should not be a qualifying criterion for employment. While this case may have provided clear case precedence for the rights of college professors in public institutions this is not a clear defense for K-12 educators (P.216). Public school teachers do get their day in court in the early 1980s.

 

Schmid v. Lovette (1984)

 

By the early 1980s, most California school districts had acknowledged that loyalty oaths were unconstitutional and stopped administering them to newly hired teachers (P. 216). One outlier in the state of California happened to be the Richmond Unified School District. Plaintiff Marvin Schmid filed a suit against the school district claiming that her First Amendment rights had been violated. The court did find subjecting prospective teachers to such an oath was unconstitutional. Establishing precedence for the right of free association for public school teachers.

 

While teachers may have the right to privately practice Satanism or salute a statue of Hitler in the privacy of their own home, much like other rights, there are limitations. Depending upon the constraints of the terms of their employment matters become a bit more sticky. I certainly could not imagine a school system allowing a teacher to indoctrinate students with the ideals of fascism.  For the right-wingers, claiming the school already inculcate students with the virtues of Marxism need to get a grip. Yes, the schools do need to become depoliticized, however, Marxism entails full state socialism. The mindless fixation with equality of outcome and insincere diversity is certainly left-of-center.  To call it Marxism is hyperbolic.

 

While this case was more of a free speech matter it could easily be extrapolated to participation in subversive political groups.  Last year controversy stirred in Texas when a teacher was fired for posting an anti-immigration tweet. Then the commissioner of the Texas Education Agency suggested that the teacher should be reinstated. All you need to do is replace the tweet with was seen at an anti-immigration rally and then it becomes a free association issue. Due to both rights being interrelated. This controversy illustrates how the defense of the First Amendment is a precarious balancing act. In a climate of hyper-political correctness, our right to free expression is presently being challenged.  It is a fight I hope that the sincere defenders of the First Amendment will win.

 

 

 

 

 

 

 

 

 

Ballot Access Laws in Arizona Are Too Strict

 

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Authors Note: This a Draft for An Op-Ed piece. Please feel free to provide candid feedback.

 

 

Many Americans are displeased with the present state of American politics. Much of this dissatisfaction is spurred by being limited to the narrow choice between two parties. Per a 2017  Gallup poll, 61 % of participants surveyed expressed that a third-party is a much-needed alternative to the present Republican/Democrat paradigm. While the idea of promising contender to the DNC/GOP establishment may receive quite a bit of fanfare from average voters that does not mean that such political force will be a reality. Unfortunately, countless third-party and independent candidates have been kept off the ballot by stringent ballot access requirements. Historically, as ballot access laws have become more rigorous the number of minor party candidates has decreased.  Effectively confining the number of choices available to the American voter.

The bulk of the prohibitive ballot access requirements that third-party candidates are subjected to are passed at the state level. Over the past couple of years, Arizona has consistently ranked among the states with the most onerous requirements. Especially after passing Bill HB 2608 back in 2015 which expanded signature requirements for a candidate to appear on the ballot, under ARS 16-322. This revision has been particularly burdensome to the Libertarian Party, which is arguably the strongest third-party contender in the state. Even when the Libertarian Party attempted to challenge the law in 2019 the Supreme  Court sided with the state. Concluding:

 

“… state’s signature   requirements   are   reasonable   restrictions   that   impose, at most, a modest burden on the Libertarian Party’s First and Fourteenth Amendment rights, while directly advancing Arizona’s  important  regulatory  interest…”

 

The Supreme Court also rejected the Libertarian Party’s 2020 appeal to contest the law. Leaving Arizona’s hopes of breaking up the present duopoly on politics in shambles. The prime culprit appears to be the 2015 revision to ballot access requirements which solidifies the current two-party dynamic. These restrictions should be eliminated because they fail to protect the voter, designed to target prevalent minor parties and impose direct violations on the First Amendment rights of voters and candidates.

 

Ballot Access Laws Fails to Protect the Voter:

 

The main arguments for stricter ballot access requirements tend to be shielding voters from confusion, ballot overcrowding, frivolous candidacies, and political stability. Historically, ballot overcrowding has never been cited as a direct reason for increasing signature requirements. Before the 1930s minor parties had very “lenient” access to the ballot in the majority of states. Even with lower barriers to entry the calamities of voter confusion and rampant frivolous candidacies seemed to be virtually nonexistent. Typically are issues that will be invariably sorted out by voter preferences. In the unlikely event of confusion, voters will levitate towards parties and policies they are familiar with. Candidates lacking strong convictions and direction will generally have potential votes re-direct towards another candidate. It is quite clear that these concerns are not pitfalls that the government must insulate the average citizen from. Especially, when most ballot access restrictions imposed by the state government tend to also exclude legitimate candidates.  These problematic quirks of liberal ballot access can easily be resolved by the voters themselves.

The second category of the aspiring purposes of ballot access laws is to protect voters from political instability. Preventing “unconstrained factionalism” from eroding the political stability of the country. Undermining the steady nature of a two-party system which interrupts the proliferation of splinter factions. The more probable side of the political stability argument suggests that it would help prevent indecisive elections. Through directing votes to one of two prominent parties it will help reduce the odds of a stalemate. Whereas dividing votes between three or more parties would increase the probability of this issue be prevalent. This argument is flimsy at best because indecisive elections were not a common problem before the restrictive ballot access laws of the 1930s. Beyond the evidence of history, Public choice theory also demonstrates how accessible ballot access will not compromise political stability. The country being splintered into a multitude of quarreling factions is unlikely, per the Median voter theorem to win an election you need to aim for the center. There are only so many unique ideologies that can be formulated that are not so extreme that it philosophically alienates moderate voters. Putting an informal constraint on the speculated “electoral chaos” that would ensue from looser ballot access restrictions.

 

Ballot Access Laws Are Designed for the Benefit of the Major Parties

 

There is also some evidence to suggest that ballot access laws are catered to benefit the existing mainstay parties.  The United States has had ballot access laws since 1888. The proliferation of strict ballot access requirements did occur until the 1930s and was generally perceived as a means of prohibiting members of the Communist Party from running for elected office.  These tactics over the years have been applied to other minor parties once state governments realized that manipulating signature requirements proved to be an effective means of keeping third-party candidates off of the ballot. For example, back in 1995, the state of Alabama tripled the signature requirements to appear on the ballot. This was a direct result of the Patriot Party diverting votes that would have otherwise gone to a Democratic candidate. Third-parties have achieved some modest victories in court against unjust ballot access laws. Such as in Burdick v. Takushi (1992) where Hawaii’s ban on write-in candidates on elections ballots was ruled as unconstitutional. However, generally, the courts rule against the complaints of third-party candidates. Simultaneously the courts tend to minimize the Constitutional concerns of third-party candidates. Demonstrating that the institutional barriers to the ballot box are sealed with the blessing of the Supreme Court. As evident in the  2019 ruling of  Arizona Libertarian Party v. Hobbes.

One glaring fact that often gets ignored is that the majority of ballot access laws have been formulated by legislators who are affiliated with one of the major parties.  This presents an unfortunate conflict of interest, as this brings into question the motives of passing such laws.  Therefore, making it difficult to determine whether these laws are being passed for the benefit of the voter or the callous self-interest of those involved in politics. Creating an internal lever for our elected lawmakers to preserve their influence in state politics. Solidifying this potential rationale for passing  HB 2608 (2015) has been the commentary of a publicly known affiliate of the Republican party. Insinuating that the Libertarian Party has been siphoning votes away from the GOP.  This individual stated quote: “I can’t believe we wouldn’t see the benefit of this”.

 

This statement implies that increasing the signature requirements was not done to foster political stability or reduce ballot overcrowding. Rather, it was passed to aid Republicans in retaining political influence in Arizona.

 

 

Strict Ballot Access Requirements Encroach Upon the First Amendment:

 

               

Strict ballot access requirements present some unique challenges to the First Amendment that often are unscored in many of the Supreme Court decisions. Per the revised signature requirements in Arizona, the Libertarian Party would require to obtain petition signatures from nonparty members. Viewed by the party’s attorney in their 2019 case as a violation of free association protected under the First Amendment. While the free association argument is a valid concern, it is an only peripheral concern. Above all, voting is a form of free expression.  The courts typically ignore the expressive function of voting, however, it is a form of speech that should be protected.  A vote can serve as a form of protest, a vote can reflect a certain philosophical point-of-view.  The market-place of ideas may lack tangible currency; however, the value of ideas can always be quantified by the will of the voters.  A mere vote can convey so much more than a constituent preferred candidate. It is generally a representation of a set of ideas, which can be symbolic or literal. Keeping third-party candidates off the ballot effectively limits the variety of forms of self-expression allotted to the voter. Operating as a circuitous form of censorship.

Imposing burdensome ballot access requirements not only limits the free speech of voters, but also the First Amendment rights of candidates. Campaign platforms present specific positions on issues that undoubtedly serves as an expressive function. Lending itself to be interpreted as a protected form of speech.  Third-parties have been invaluable for presenting novel perspectives on policy issues.  For instance, the  Liberty Party that formed in the 1840s brought the abolition movement to the table when most major parties refused to entertain ending slavery. Even in the modern era, the candidacy of Ross Perot for the Reform Party back in the 1990s presented alternative views that were invaluable to public discourse. Such as Perot being one of the few aspiring presidential candidates critical of the NAFTA agreement.  Perot reminding us of the virtue of balanced budgets. Through keeping minor party candidates off the ballot, we are in-turn we are limiting the variety of opinions in public discourse. This is nothing more than a legally sanctioned form of de-platforming.

 

Conclusion:

 

                A significant number of voters may be frustrated with the current two-party duopoly on American politics. Little can be done if prohibitive ballot access laws work to keep third-party candidates off the ballot.  These laws do not protect voters, nor do they secure our political institutions. Seemingly existing to keep the status quo intact with few substantive arguments soundly justifying such measures. Until the Supreme Court starts taking the constitutional concerns of minor parties seriously, the two-party system will remain.  It would foolish to expect the Republican and Democratic state legislators to repeal laws that serve their interests.

Can Teachers Strip-Search Students on School Grounds?

 

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Arguably one of the most important rights that the U.S. Constitution endows every American with are those protected under the Fourth Amendment. Broadly applying to the preservation of an individual’s right to privacy. Explicitly stated under the Fourth Amendment:

 

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

However, it can be assumed that like most Constitutional rights that the Fourth Amendment is not without limitation. In a similar vein to how free speech is not an unlimited right under the First Amendment. Overt slander, threats, and language intended to incite a fight are examples of speech that is outside of constitutional protection. As can be expected, our right to privacy is not unfettered.

 

Does the question become whether school students are protected under the Fourth Amendment while school is in session? The answer to this question is far from linear due to the fact there are a few factors that make this question more complicated. For one, most of the students are under the age of majority. Effectively school staff operates under the doctrine of Parentis Loco in which teachers and administrators are to act in the best interest of the students. Due to the students being separated from their parents. It becomes problematic when we attempt to delineate a fine line between maintaining the privacy of the student and looking out for their best interests. Another consideration is that public schools are technically an extension of the government. Making it more imperative that school officials do not deprive students of their Constitutional rights.

 

What guidelines do school officials have for determining the line between Constitutional and unconstitutional searching for a student? Whether it be on their person, backpack, or the locker that they use during school hours? The litmus test generally exercised by the courts in New Jersey V. TLO  a ruling dating back to the 1980s. The facts of the case detail how a female student was caught smoking cigarettes in the bathroom by a faculty member. The student was subsequently sent to the principal’s office where her purse was further inspected. Upon searching the student’s purse there was a small amount of Marijuana found and evidence of drug sales. The defense attempted to argue that TLO had her Fourth Amendment rights violated through the search. The court ruled that the search was reasonable in light of the contextual circumstances. New Jersey V. TLO setup a two-part test for determining whether a search on school grounds is “reasonable”.  Part one is “whether the … the action was justified at its inception..”  The second portion of the test is that “… one must consider whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place..” (P.249).

 

Unfortunately, even with an established test case, the definition of acceptable conduct in searching students on school grounds is murky. There are various cases where applying the test in similar circumstances has led to some notable variance in the results (P.249). Making rulings using this test heavily contingent on context. For example, a Pennsylvania court ruled against a locker search conducted by school officials after having seen the student taking a pack of cigarettes out of the locker. The school found Marijuana “joints” in the pocket of a jacket inside of the locker. The court citing that there is a reasonable expectation of privacy in the pocket of the student’s jacket (P.249).

 

The exorbitant amount of nuance applied in the New Jersey V. TLO test makes the prospect of school-sanctioned strip-searches horrifying. Depending on the context it is permissible. It would be shrewd of teachers and school administrators to exercise a profound amount of caution before restoring to such drastic means. As one can imagine, if there is a lack of clarity in applying this test to less invasive searches, the same problems surface in the event of strip-searches. For example, in the 1991 case Williams V. Ellington the court ruled that the search was reasonable in light of the circumstances (P. 251). Even when faced with the threat of drug use is it ever proper to have a teacher strip-search an underage student? Any attempt to answer that question will rapidly degenerate into an uncomfortable debate. It would be reasonable to be leery due to the amount of flexibility in the interpretation of the test. Potentially leading us down the path to some grotesque abuses.

 

A more recent case demonstrates that the courts will not always favor the schools. The 2009 case Safford Unified School District V. Redding details an incident that occurred in an Arizona middle school.  A fellow student reported to the teacher that a female student had an over-the-counter pain reliever. Being in direct violation of the school’s drug policy. In an attempt to confiscate any of the purported ibuprofen the student was in possession of the thirteen-year-old student who was strip-searched. Fortunately, the court did rule in favor of the student, agree that her Fourth Amendment rights had been violated. There are a few circumstantial considerations to note to truly understand exactly how negligent this course of action was. First, in the Common Law tradition children are not view has had the same criminal capacity as adults until they are fourteen (P.252). In this incident, the child was under the age of fourteen. Also, there isn’t a sane judge out there that would find it to be a reasonable exercise of power to strip-search a young teenager over an uncontrolled pain reliever. Perhaps making such a statement is demonstrating too much faith in humanity. Such extreme measures demonstrate negligently poor judgment. The kind of judgment that should disqualify someone from working with children.