Voting Rights in Indian Gender Verification Country Policies in Elite Sports Jean Reith Schroedel and Robert Diana Isyanova Saporito 50 5 Business as Usual? Recent Developments in Language Suppression, Corporate Liability for Revitalization, and Native International Crimes Hawaiian Identity Franziska Oehm Shari Nakata J.D., Ph.D. 63 14

The Dean’s Welcome Matthew Parlow A Discussion with Paulette 1 Brown Robert Skrinyaz 28 Voices for Justice Marisa Cianciarulo 2 Statewide Restorative Justice Legislation and Declining Trends in the The Note from the 2017- U.S. Criminal Justice The 2016 Symposium 2018 Chair System: What Impact, if Review Rick Reneer Jr. Heidi Mattson and Mackenna any? Waterhouse 4 Suneeta Israni 67 31

The 2017-2018 Board and The Note from the Editor Jessica Ewert 71

Call for Papers 72

Fall 2017 Volume 2

THE DEAN’S WELCOME Matthew J. Parlow

Welcome to the second publication by our Diversity & Social Justice Forum. At the Fowler School of Law, we are deeply committed to fostering a welcoming and supportive environment that enables each student to succeed. This means, among other things, developing an academic program that is not only rigorous but also relevant, creating opportunities for students to gain skills by engaging with the many communities that we serve, and encouraging thoughtful innovation in tackling new and complex problems of society. Perhaps most of all, it means bringing together a diverse and dedicated group of faculty and students that will make the achievement of these goals both possible and worthwhile. It is, therefore, unsurprising that when a group of students proposed starting this journal two years ago, the idea was embraced by the faculty and the Fowler Law community more generally. Since its launch, our Diversity & Social Justice Forum has accomplished a great deal: three symposia and, now, its second publication. As our society struggles to discuss complicated issues of law and policy, we are proud of the Diversity & Social Justice Forum for living out its mission to “promote a climate of engagement and dialogue with a wide spectrum of views and values.” Indeed, during these times, this type of medium for discussions of diversity, inclusion, and social justice makes a significant contribution to civic discourse.

Best,

Matthew J. Parlow Dean and Donald P. Kennedy Chair in Law

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THE DIVERSITY & SOCIAL JUSTICE FORUM: VOICES FOR JUSTICE Marisa S. Cianciarulo-Associate Dean for Academic Affairs, Professor of Law

“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”

~Frederick Douglass “Southern Barbarism,” 24th Anniversary of Emancipation, Washington, DC, 1886 in 4 THE LIFE AND WRITINGS OF FREDERICK DOUGLASS 434 (Philip Foner, ed., 1955).

This year, the mission of an alternate reality to suit any carefully written products of the Diversity and Social Justice worldview, no matter how research and critical thought. Forum – providing a forum that extreme and hate-filled. And In these pages, the can give expression and most importantly, key voices voiceless are heard. The representation to a wide have often been silenced, articles in this year’s Forum spectrum of progressive and removed altogether from the present the views of groups in diverse voices at Chapman – is dialogue. our society whose voices have more important than ever. The Publications such as our been silenced through chasm between “liberal” and Diversity and Social Justice marginalization and “conservative,” “red state” and Forum are invaluable in oppression: indigenous “blue state,” threatens to engulf creating a space where dialogue peoples, bullied youths, shared values that sustain our can begin. The goal of this minority youths, the victims of society. It pits “us” versus Forum is to improve the world corporation-sponsored or “them,” it obscures our in which we live, and to do so corporation-abetted human commonalities, it breeds in a way that fosters rights violations. suspicion and hate, it kills understanding: to find The theme of the 2016 compassion and empathy. And common ground despite Forum is “Silenced Justice.” in so doing, it threatens the differences, to bring attention But justice cannot be silenced, achievement of justice and to overlooked societal ills, and because it is not a voice. It ultimately, as Frederick to discuss and debate proposed does not speak for us. It does Douglass warned, the security solutions to the problems in our not exist on its own. Justice is of our society. world. achieved through the voices Dialogue can help span this In these pages, facts and actions of individuals who ever-growing divide. But the matter. Facts are facts because fight in ways big and small for tools for true dialogue face they have been researched their own and others’ right to their own threats. We live in a exhaustively. They are not a live a safe, fulfilling life. world where elected leaders – collection of partial and Justice cannot be silenced, grown adults with monumental distorted truths cobbled but dialogue can. This Forum responsibilities – trade insults together to support an recognizes that many voices and barbs on social media, a untenable position. essential to dialogue have been behavior of which parents of In these pages, respectful, silenced through fear, teenage children would not be professional commentary oppression, and inequality. It proud. Facts, the basis for any matters. These articles are not recognizes that with those true dialogue, have become 140-character invectives. They voices absent, the dialogue is optional. False narratives, and are insightful, provocative, incomplete, and thus the bridge just plain falsehoods, provide towards justice obstructed. It

2 Fall 2017 Volume 2 provides a platform for voices calling for justice. And for that, our community of scholars, educators, lawyers, and soon-to-be lawyers is grateful. Thank you, to all of the authors, speakers, students, professors, and members of the Chapman University community who support the Diversity and Social Justice Forum, for being a voice for justice.

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A NOTE FROM THE 2017-2018 DIVERSITY & SOCIAL JUSTICE FORUM CHAIR Rick Reneer Jr. In my first year of law school, I had the opportunity to submit my name for consideration to what was then The Diversity Initiative Symposium and Publication, at the time only in its inaugural year. It was my understanding that the group was here to provide a forum, a space, for diverse voices and ensure that progressive ideals had a place here at Chapman and were connected to the community we would one day serve as attorneys. Working this organization through the final approval process with the faculty, and the amazing students involved, instilled in me an intense work ethic and an understanding of perhaps the most important aspect of what we do. We work not for us today, not for a title or a line on a resume, we work for those that come after in the hopes that they will be that one step further ahead at the starting point of life than we were. Platitudes aside, it is hard work. It is hard, often thankless, energizing, invigorating, and essential work. The organization has since grown, incrementally, and now is known as the Diversity and Social Justice Forum, having been fully approved by the faculty. Our purpose has not changed though. We will always be a space where diverse voices can come together and discuss the challenges facing their communities both here on campus and beyond. We will always seek to connect the legal community with like-minded grassroots organizations that work to promote the equal and just standing of every single member of our county, our state, our nation, and the world. We will always foster the growth of groups and organizations who, like ours, magnify the voices of the under heard and underserved. The Diversity and Social Justice Forum, with increasing necessity, will continue on that mission. It has been my singular honor to be a part of this organization as an Articles Editor, then Vice-Chair of Symposium, and now Chair. It has impacted everything from my attendance, to my grades, to even my success at competitions, and it has most certainly been worth every single moment. The writings here, inside this publication, and the voices heard at our annual symposium, are irrefutable evidence of that. I hope that all who lead and work within this organization will always see that value, that worth, and dedicate themselves accordingly. The Diversity and Social Justice Forum would like to wholeheartedly thank President Daniele Struppa and the Office of the President of Chapman University, Dean Matthew Parlow and the Dale E. Fowler School of Law, and Faculty Advisor and Professor of Law, Dr. Denis Binder, SJD. Without their past and continued support, none of this would be possible.

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VOTING RIGHTS IN INDIAN COUNTY Jean Reith Schroedel and Robert Saporito

From the very earliest period of Euro-American settlement, there have been disputes over the civic status of indigenous peoples within the country. Although the 1924 passage of the Indian Citizenship Act resolved the citizenship question, it did not ensure the right to vote. In the years immediately following the passage of the ICA, states with large Native populations passed a range of laws designed to disenfranchise American Indians and Alaska Natives and many were still in place when the Voting Rights Act was passed in 1965. Despite widespread and egregious voting rights abuses against Native Americans, there was little initial interest in challenging voting rights abuses against Native Americans. In a similar vein, more recent commentaries about the Shelby County v. Holder (2013) decision have largely ignored its impact on Native American voting rights. In this paper, we consider the unique aspects of Native American voting rights litigation in the post- Shelby era.

Introduction (2013), the Court ruled that the record no one can fairly say Section 4(b), which provided that it shows anything On June 25th, 2013---the the mechanism for approaching the 'pervasive,' 137th anniversary of Custer’s implementing Section 5, was 'flagrant,' 'widespread,' and defeat at the Battle of Little Big unconstitutional because it 'rampant' discrimination that Horn---the Supreme Court in a violated “the equal sovereignty faced Congress in 1965.”3 This 5-4 decision in Shelby v. of the states” by treating them decision reversed lower court Holder (2013) rendered Section differently based on “40 year rulings that stated 5, one of the most important old facts.” 1 This ruling meant discrimination still was provisions of the 1965 Voting that the previously “covered” widespread,4 but the Justices Rights Act, unenforceable. jurisdictions were no longer argued that large incr`eases in Unlike other parts of the Act, required to pre-clear changes to African American elected Section 5 was designed to their election laws and officials showed pre-clearance proactively stop political procedures with the was no longer needed. While jurisdictions with histories of Department of Justice or the accurate, this ignored that most voting rights abuses from Circuit Court for the District of scholars attribute the increase implementing new laws and Columbia.2 to the protection provided by provisions that could In his decision, Chief Section 5.5 Pundits undermine equal access to Justice Roberts wrote, immediately began to consider voting. In Shelby v. Holder “Regardless of how to look at the ruling’s implications.

1 Shelby County v. Holder, 570 U.S. ____ Section 4(b) was struck down in the 2013 Voting Rights Act. The House Report (2013). Supreme Court case Shelby County v. focused on “second-generational tactics” 2 A county or state would be covered Holder forbidding this test for restrictions that dilute minority voting clout in ways under section 4(b) if: under section 5. The Court did not rule that are “more subtle than the visible a) As of November 1, 1964, 1968, however on the constitutionality of methods used in 1965,” but stated their or 1972, the jurisdiction used a section 5 itself meaning that if Congress “effects and results are the same, namely a "test or device" to restrict the were to establish a new test, the affected diminishing of the minority community’s opportunity to register and vote; states and counties could still be limited ability to fully participate in the electoral and under section 5. process and to elect their preferred b) Less than half of the 3 Shelby County, supra. candidates of choice.” jurisdiction's eligible citizens 4 In reaching this decision, the Shelby 5 For an early example of this research, were registered to vote on majority went against rulings by a district see Davidson, Chandler and Bernard November 1, 1964, 1968, or court and the U.S. Court of Appeals for Grofman. 1994. Quiet Revolution in the 1972; or less than half of the District of Columbia Circuit; the latter South: The Impact of the Voting Rights eligible citizens voted in the which had favorably cited House Report Act 1965-1990. Princeton, NJ: Princeton presidential election of No. 109-478 that had been submitted as University Press. For more recent November 1964, 1968, or 1972 part of the 2006 re-authorization of the research, see Bentele, Keith Gunnar and

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Liberals raised concerns about In the post-Shelby era, most The Historical Context, 2). The what they saw as a growing voting rights cases are argued Voting Rights Act comes to voter dilution problem among as violations of Section 2, Indian Country, and 3). Recent African American and Latino which prohibits laws and other Section 2 Litigation. communities. Whereas practices that “deny or abridge conservatives saw the decision the right of any citizen of the The Historical Context as a victory for federalism and United States to vote on states’ rights, returning what account of race or color.”8 Throughout the nineteenth they saw as a constitutionally Given that American Indians century, there were extensive protected power back to the generally were not covered by discussions among the nation’s states where it belonged. Section 5 prior to the 1975 elites over the civic status of But neither the Justices, nor renewal of the Voting Rights indigenous peoples within the the pundits, considered the Act, their experiences with United States. During the ruling’s impact on Native litigation using Section 2 and 1820s and 1830s, the Supreme Americans.6 At the time of the the Fourteenth and Fifteenth Court issued three very Shelby decision, there were two Amendments during those important, albeit confusing states (Alaska and Arizona), as early years are of particular rulings, the “Marshall Trilogy,” well as two counties in South interest, as well as recent cases that left ambiguous the Dakota, which were covered arguing Section 2 violations in question of whether Native due to their past histories of Indian Country. But we peoples had any recognizable discriminatory electoral believe these current voting American civic status.9 A practices against Native rights disputes are best quarter of a century later, the Americans. Alaska and understood within an historical question was still unresolved. Arizona had become “covered context that situates them as an In 1856, Attorney General in late 1975. The South Dakota outgrowth of long-established Caleb Cushing rejected any counties, with borders were practices designed to deny civic possible route to citizenship entirely within the boundaries equality to Native Americans. through naturalization, stating of Indian reservations had been For this reason, we have that only applied to “white “covered” since early 1976.7 divided our research into the men.”10 One year later, Chief following three sections: 1). Justice Taney in his infamous

Erin E. O’Brien. 2013. “Jim Crow 2.0? 7 The geographic reach of Section 5 was American Indians were “merely occupants Why States Consider and Adopt expanded as a result of the 1975 renewal of the land” upon which they and their Restrictive Voting Access Policies.” of the non-permanent provisions of the ancestors had dwelled for millennium, Perspectives on Politics 11(4): 1088- Voting Rights Act. Alaska, Arizona and thereby abrogating any legal claim that 1116. Shannon County (recently renamed they might have to owning the land. Then 6 A content analysis of the more than 300 Oglala Lakota County) and Todd County in Cherokee Nation v. Georgia (1831), articles published in the immediate in South Dakota were subjected to pre- Marshall stated that Native Nations were aftermath of the Shelby ruling and using clearance almost immediately after the “dependent nations” whose relations with Major World Publications as the source, 1975 renewal (41. Fed. Reg. 783, 784 the United States government resembled failed to uncover a single one that Jan.5, 1976). These two counties, as well that of a “ward to his guardian.” mentioned the impact on American as Bennett, Charles Mix, Corson, Lyman, However, one year later in Worcester v. Indians. A subsequent Google search Mellette and Washabaugh Counties, also Georgia (1832), Marshall seemed to found two articles: one that briefly were subjected to pre-clearance due to reverse his earlier positions, stating that mentioned “Indians” in a general 1975 minority language provisions in the United States considers “Indian discussion of the ruling and another in 1976 (41 Fed. Reg. 29,998, 30,002, July nations as distinct political communities Huffington Post that focused on Native 20, 1976). having territorial boundaries within which Americans. For more, see Schroedel, 8 Voting Rights Act of 1965, 79 Stat. 437, their authority is exclusive.” Jean and Ryan Hart. 2015. “Vote 42 U.S. Code § 1973. 10 For more on the differences that Taney Dilution and Suppression in Indian 9 In the first ruling, Johnson v. McIntosh saw between American Indians and Country.” Studies in American Political (1823), Chief Justice Marshall, drew upon people of African Descent, see Horsman, Development 29: 1-28. the “discovery principle” to argue that Reginald. 1981. Race and Manifest

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Dred Scott v. Sandford (1857) in exchange for taking on necessarily include the right to ruling, which stated people of individual allotments of land.14 vote.17 African descent could never A federal court, however, in become citizens, suggested that 1901 held that the citizenship “Some of these laws American Indians, who took on status of those who had gained closely resembled those the customs of white people it through these congressional employed in the Jim Crow could become citizens.11 This acts was not the same as the South, while others were confusion continued during the citizenship of other Americans. uniquely related to the post-bellum era with the 1866 The court ruled they were still existence of Native Civil Rights Act explicitly “wards” of the federal Nations and reservations.” excluding “Indians not taxed” government.15 from citizenship, a phrase that By the early 1920s, nearly When the Indian was not included in the two-thirds of American Indians Citizenship Act was signed into Fourteenth Amendment, but had gained citizenship through law, there were clauses in at only after the bill’s sponsors congressional action or their least seven state constitutions assured other members of military service in World War I that statutorily disenfranchised Congress that the amendment and the remainder gained it in Native Americans.18 Following would not apply to “Indian 1924, when Congress passed the passage of the Indian savages.”12 The possibility of the Indian Citizenship Act.16 In Citizenship Act, a number of citizenship was further keeping with the earlier judicial states reacted by passing undermined by the Supreme decision that the citizenship additional laws to ensure the Court’s Elk v. Wilkins (1884) status of American Indians did disenfranchisement of Native decision that American Indians not eliminate their status as Americans. Some of these were not citizens; instead their “wards” of the federal laws closely resembled those status was akin to that of government, political leaders in employed in the Jim Crow foreign ambassador’s U.S. born states with large Native South, while others were children.13 Shortly thereafter, populations refused to extend uniquely related to the Congress provided a path for the right to vote to these “new” existence of Native Nations and U.S. citizenship through the citizens. Indian Affairs reservations. Six western states Dawes Act (also known as the Commissioner Charles Burke instituted literacy tests that General Allotment Act) and was quite aware of this and sent required American Indians to subsequent acts in 1901 and a letter to local Indian prove to registrars that they 1906, which allowed American superintendents pointing out were able to read and write Indians to gain citizenship after that citizenship did not they gave up reservation lands

Destiny: The Origins of American Racial 155,000 American Indians were granted 15 Farrell v. United States 110 Fed. 942 Anglo-Saxonism. Cambridge, MA: U.S. citizenship through the Dawes Act. (1901). Harvard University Press: 253. Wolfey, Jeanette. 1991. “Jim Crow, 16 See Bruyneel, Kevin. 2004. 11 Dred Scott v. Sandford 60 U.S. 393 Indian Style: The Disenfranchisement of “Challenging American Boundaries: (1857). American Indians.” American Indian Law Indigenous Peoples and the ‘Gift’ of U.S. 12 Schroedel and Hart, supra note 7, at 7. Review 16: 167-202. The price in terms Citizenship.” Studies in American 13 Elk v. Wilkins 112 U.S. 994 (1884). of the land lost was very steep. For Political Development 18: 30-43 for a 14 The reservations of Native Nations that example, the Arapaho and Cherokee lost discussion of how Native Americans accepted provisions of these Acts were over 80% of their reservation lands as a viewed the “gift” of citizenship. divided up into individual allotments (160 result of their being made “surplus.” 17 Schroedel and Hart, supra note 7, at 8. acres for heads of household, 80 acres for Wilkins, David E. and Heidi 18 Cohen, Felix. 1942. Handbook of single adults, and 40 acres for minors) Kiiwetinepinesiik Stark. 2011. American Federal Indian Law. Washington, DC: with the remaining lands sold off to non- Indian Politics and the American Political Government Printing Office: 157-158. rd Indians. Between 1890 and 1901, nearly System, 3 edition. Lanham, MD: Rowman & Littlefield, 127-128.

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English.19 New Mexico, Utah, along with the Fourteenth and and Arizona had provisions Many of these Fifteenth Amendments.25 stating that Native peoples discriminatory provisions were There were only a handful living on reservations were not still in place when the Voting of these Section 2 voting rights actually residents of the states Rights Act was passed, but in cases, involving American and therefore could not vote.20 the 1965 Congressional Indian populations, prior to the The legal justification for these Record’s nearly 1,000 pages of Act’s 1975 renewal, but the laws came from an early debates and reports over the egregious nature of these cases Minnesota Supreme Court Act, there are only two very figured prominently in ruling that the Red Law brief mentions of American discussions over extending the Chippewa, living on a Indians.24 Even though most reach of the Act’s non- reservation could be excluded parts of the country with large permanent provisions.26 The from the voting rolls because Native populations initially U.S. Civil Rights Commission they had not “yielded were not covered by Section 5, 1975 report, The Voting Rights obedience and submission” to the Voting Rights Act became Act: Ten Years After, focused the state, as shown by the an important tool in Native attention on practices in payment of property taxes on Americans’ struggle for the Arizona that were designed to reservation lands.21 franchise. During the decade systematically deny Navajo Minnesota, South Dakota, and prior to Congress’ decision to representation within county North Dakota, required Indians extend the geographic reach of governments.27 The report paid to prove they were no longer Section 5, Native American particular attention to Apache “Indian” by self-terminating claims about voting rights County, which is located in the their tribal affiliations in order abuses had to be litigated using northeastern corner of the state, to vote.22 Registrars in Arizona Section 2 that prohibits any and includes a land mass of argued that the guardianship “qualification or prerequisite to more than 11,200 miles. The clauses that kept the mentally voting or standard, practice, or upper half of the county is part incompetent from voting in procedure [that] shall be of the Navajo Reservation, and their state constitutions applied imposed or applied by any American Indians (mostly to Native Americans even State or political subdivision in Navajo, but also Hopi and though those provisions had a manner which results in a Apache) comprised roughly been struck down by a North denial or abridgement of the three-quarters of the county’s Dakota court.23 right of any citizen of the residents, but they had never United States to vote on gained representation on the The Voting Rights Act account of race or color…”, three-person Board of Comes to Indian Country Supervisors. In 1973, Tom

19 McCool, Daniel, Susan M. Olson, and 24 Schroedel and Hart, supra note 7, at10. left piecing together circumstantial Jennifer L. Robinson. 2007. Native Vote: 25 42 U.S.C. § 1973 : US Code - Section evidence to show a “totality of American Indians , the Voting Rights Act, 1973: Denial or abridgement of right to circumstance” that strongly points to and the Right to Vote. Cambridge: vote on account of race or color through discriminatory intent. See, for example, Cambridge University Press: 11-12. voting qualifications or prerequisites; Village of Arlington Heights v. 20 Id. establishment of violation. Metropolitan Housing Development 21 Opsahl v. Johnson, 1917. 163 N.W. 988 26 Courts generally have required a higher Corporation, 49 U.S. 252 (1977). (Minn.). This provision in the New standard of proof in Section 2 cases than 27 United States Commission on Civil Mexico constitution was ruled in Section 5 litigation---sometimes Rights. 1975. The Voting Rights Act: Ten unconstitutional in Trujillo v. Garley, requiring the proof of intentional Years After. Washington, DC: 1948. Civ. No. 1353 (D.N.M.). discrimination rather than discriminatory Government Printing Office. 22 McCool et. al. supra note 20. outcomes. While direct evidence of intent 23 Swift v. Leach, 45 N.D. 437 (1920). to discriminate is desirable, that is difficult to obtain. Plaintiffs typically are

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Shirley, a member of the county still engaged in a range of all of those governmental functions Navajo Nation, got three times vote denial and dilution strategies were handled by adjacent counties as many votes as a white that prevented Native Americans in with nearly all white populations. the county from equal The extension of Section 5 coverage candidate running for the representation.29 The Board of to the “unorganized” counties made District 3 seat that included the Supervisors, which established the it possible for Native Americans to reservation. The Board of geographic boundaries of the three have access to the ballot box and Supervisors refused to seat supervisory districts, used that elect representatives of their choice Shirley, arguing that his failure power to create districts with to political office.34 But that did not to pay property taxes, because enormous population disparities. mean that places with long histories he lived on a reservation, The overwhelmingly Navajo of vote denial were going to quietly District 3 had a population of acquiesce to Native voting. There rendered him ineligible for 26,700, but Districts 1 and 2, which were number of other vote denial elected office. The fact that were nearly all white, had cases in South Dakota during the Shirley paid a full range of populations of 1,700 and 3,900 1980s, such as American Horse v. other taxes and was a military respectively.30 This up to 10:1 Kindert (1984) and Fiddler v. Sieker veteran was irrelevant in the population disparity in the electoral (1986) that involved county eyes of the Board. Shirley districts was challenged in a case registrars refusing to accept voter filed in 1973, and eventually registration cards from reservations, fought the case all the way up 35 to the Arizona Supreme Court, resulted in the county being found arguing they had to be fraudulent. to have violated the Fourteenth and which ordered the Apache Fifteenth Amendments and Section Recent Section 2 Litigation County Board of Supervisors to 2.31 These actions paved the way seat Shirley.28 for increased registration and voting Most contemporary Section 2 among Navajo and led to the Board cases have involved vote dilution “This up to 10:1 of Supervisors gaining a Navajo (e.g., voters are fully able to cast population disparity in the majority, as well as the first Navajo votes, but do not have an equal being elected to the state opportunity to elect representatives electoral districts was legislature.32 of their choice), such as occurs challenged in a case filed There were a range of the early when there is mal-apportionment of in 1973, and eventually voting rights cases involving denial districts. The question of voting resulted in the county of the franchise, such as the South abridgement, however, has become being found to have Dakota law challenged in Little an increasingly important element violated the Fourteenth Thunder v. South Dakota (1975) in recent Section 2 litigation, and and U.S. v. South Dakota (1980).33 one that particularly affects Native and Fifteenth The law stated that residents of Americans. Forty years ago, nearly Amendments and Section “unorganized counties,” such all voting took place at local 2.” counties that included the Pine precincts on Election Day, but in Ridge and Rosebud Sioux 2016 nearly 40%, over 47 million, Even though Shirley succeeded reservations, could not vote nor run of all the votes cast were done via in gaining a place on the Board, the for county political office. Instead early in-person or absentee voting.36

28 Shirley v. Superior Court. 1973. 513. P. 30 Goodluck v. Apache County1975. 417 legislature, despite comprising large 2d 939 (Ariz.): 109 Ariz 510. F. Supp. 13 (D. Ariz.); 1976. Aff’d 429 population majorities in reservation 29 The county used literacy tests to prevent U.S. 976. districts. They also had been excluded Navajo, many of whom had limited 31 Id. from electing their own to county council English proficiency, from being added to 32 United States Commission on Civil seats. See Schroedel, Jean and Artour the voting rolls. For more on the barriers Rights, supra note 28. Aslanian. 2015. “Native American Vote faced by Shirley and others in the 1970s, 33 Little Thunder v. South Dakota. 1975. Suppression: The Case of South Dakota.” see Yurth, Cindy. 2009. “A Leader with 518 F. 2d 1253 (8th Cir.); U.S. v. South Race, Gender & Class 22(1-2): 308-323. Backbone: 35 Years Later, Apache Dakota. 636 F 2d. 241 (8th Cir.). 35 American Horse v. Kindert. 1984. Civ. County’s First Dine Supervisor Speaks 34 Prior to the extension of Section 5 to No. 84-5159 (D.S.D.); Fiddler v. Sieker. Out.” Navajo Times September 3. two South Dakota counties, no American 1986. Civ. No. 86-3050 (D.S.D.). Http://navajotimes.com/poliitcs/2009/090 Indians had ever been elected to the state 36 The United States Election Project. 9/supe.php. Accessed 2/15/2017. electproject.org.

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As early voting becomes more residents with the opportunity to “While he did not take active prevalent, Native American vote at the county auditor’s office steps to stop voters, many populations, especially those starting 46 days prior to Election elderly people, with concentrated on reservations, have Day, but Shannon County residents memories of violent clashes had to fight to establish access to were only provided with an in- with law enforcement were forms of early voting. The recent county site for six days. Because cases, involving Native Americans Shannon County was classified as too intimidated to enter and are Section 2 voting abridgement “unorganized,” residents wanting left without voting.” cases, where the electoral practices vote early, apply for an absentee include material limitations that ballot or take advantage of late Despite the agreement, affect the minority community more registration, had to travel to the there were still attempts to limit heavily than the white community.37 courthouse in the neighboring Fall the voting of reservation If that type of a limitation is found, River County. The Fall River residents. The Oglala Sioux the court then examines the “totality courthouse is located in Hot Tribe asked for the early voting of circumstances” in the local Springs, “which is between 53 community to ascertain whether the minutes and 2 hours and 45 minutes center to be staffed by at least practices under dispute work in from voters in Shannon County one tribal member. The request combination with historical depending on the residence of the was granted, but to ensure that circumstances and the political, voter.”41 there weren’t any “problems” social and economic conditions Facing a likely injunction, the the county sheriff was assigned (e.g., the Senate Factors) to produce Secretary of State agreed to provide to watch over the location 38 a result that is discriminatory. early voting services for the 2012 during its operating hours. The four cases outlined in the next election. “This decision was made section are example of Section 2 in part due to the Secretary of Anecdotal reports tell of the voting abridgement violations. State’s commitment to provide an sheriff, a large white man, with additional $12,000 through Help a handle bar mustache, Brooks v. Gant (2012) America Vote Act (HAVA) sunglasses, revolver, and funds.”42 Because the county had cowboy hat standing right by Shannon County in South voluntarily met the plaintiffs’ the door. While he did not take Dakota is contained entirely within demands, their request for a active steps to stop voters, the Pine Ridge Indian preliminary injunction was Reservation.39 In 2012 members of dismissed. The motion for a many elderly people, with the Oglala Sioux Tribe, living on permanent injunction continued, memories of violent clashes the western half of the Pine Ridge and the parties began discovery. with law enforcement were too Reservation, sued the South Dakota During the discovery period intimidated to enter and left Secretary of State asking for the Shannon County entered into an without voting.44 establishment of a “full period of agreement with the Secretary of statutorily authorized early voting” State, ensuring that these satellite Poor Bear v. County of in Shannon County.40 When Brooks voting offices will remain open and v. Gant (2012) was filed, residents funded through January 1st, 2019. Jackson (2015) of the county had substantially less This agreement led to the case being access to early voting than was dismissed without prejudice.43 Residents in the eastern half available to other South Dakota of the Pine Ridge Reservation, residents. State law provided which is part of Jackson

37 See for example, Veasey v. Abbott, 830 40 United States District Court District of 44 It should be noted that Shannon County F. 3d 216, 2016 WL 3923868, at *17 (5th South Dakota Western Division. Order and the Pine Ridge Reservation are often Cir. 2016). Denying Defendants Motion to Dismiss seen as the epicenter of the tumultuous 38 League of Women Voters of North and Granting Defendants Motion to history between the United States Carolina v. North Carolina, 769 F.3d 224, Extend. Case No. CIV. 12-5003-KES. Government and the Plains Indians. The 245 (4th Circ. 2016). October 4th 2012. Reservation is home to the site of the 39 In 2015, the name of Shannon County 41 Ibid. Wounded Knee Massacre as well as the was changed to Oglala Lakota County, 42 Ibid. 1973 standoff between U.S. Marshalls and which better reflects the make-up and 43 Brooks v. Gant, No. 5: 2012 cv05003- American Indian Movement protesters. history of the county. Doc. 66 (D.S.D.).

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County, also faced substantial was a violation of Section 2 person absentee voting travel distance barriers. The and the 14th Amendment. They than residents of the southern half of the county is also filed for a preliminary three counties who do not part of the Pine Ridge injunction to establish a live on the reservations. Reservation while the northern satellite voting office in time But because the evidence half is mostly white.45 The for the 2014 elections. Before also established that county seat of Kadoka is this request could be heard Montana law provides located in the northern half, before a judge, the parties several other ways of roughly 27 miles from reached a settlement voting and that Native Wanblee, the main reservation establishing a satellite office in Americans living on the population center. In 2013, Wanblee for the next three three reservations are reservation residents asked the election cycles. able to elect county to establish an early representatives of their voting satellite office in Wandering Medicine v. choice, the Court Wanblee, but county board of McCulloch (2014) concluded Plaintiffs were commissioners decided it not very likely to succeed would be too expensive without Similar issues affected the on the merits their § 2 state assistance, which they did ability of Native Americans Voting Rights Act not believe would be living on reservations in claim.48 available.46 Montana, where members of Following this vote, the Gros Ventre, Northern Judge Cebull went on to reservation residents filed suit Cheyenne, Crow and argue that in order to claim a against the county in Poor Bear Assinboine Tribes in the violation of the Equal v. County of Jackson (2015). Bighorn, Rosebud, and Blaine Protection Clause, the plaintiffs They claimed that, “South Counties, filed for a would have to prove that the Dakota's Help America Vote preliminary injunction in the counties intended to Act Task Force had approved a weeks prior to the 2012 discriminate in refusing to plan in February 2014 which election. On October 30th 2012, establish these offices. included a provision for that motion was denied by Additionally, there would be Jackson County to use HAVA District Judge Richard F. “significant hardship that funds to establish a satellite Cebull who argued that: would be imposed on the office.”47 Because the county County elections administrators refused to establish the office It is undisputed that to implement new procedures even after receiving notification Native Americans living on short notice during what is from the state that HAVA on the three Indian likely to be a close election in funding was available, Reservations face many statewide races.”49 The plaintiffs argued the refusal greater hardships to in- counties would not have

45 Until the early 1980s, the eastern South Dakota HAVA plan, but that funding for such sites, and also due to no portion of the Pine Ridge Reservation was reimbursement of expenses to Jackson county funding available.” the “unorganized” Washabaugh County. County through HAVA grant funding is United States District Court District of After being part of several early voting not shown. Vicki Wilson, Auditor, South Dakota Western Division. rights cases, Washabaugh County was reported that she had sent an email to Complaint for Injunctive and Declaratory subsumed into Jackson County that was Secretary of State Gant about Relief. Case No. 14-5059. September 18th, directly to its north. reimbursement of expenses for such sites, 2014. 46 The minutes from the June 20, 2014 but has not received a response. Stilwell 47 Id. meeting state: “Discussion was held on moved, Denke seconded, that Jackson 48 Mark Wandering Medicine v. the information received that Jackson County not establish satellite voting sites McCulloch, 906 F. Supp. 2d 1083 - Dist. County meets the criteria to establish a due to no response on state or federal Court, D. Montana 2012. satellite absentee voting site through the 49 Id.

Fall 2017 Volume 2 satellite offices opened on the Sanchez v. Cegvaske and the counties to provide reservations in time for the (2016) early voting sites on the two 2012 election, but the case reservations. In her decision, moved forward to the appeals In 2016 the impact of Judge Du strenuously rejected process. differential travel distances was the state’s argument that the In the appeal, the raised in a Nevada case, plaintiffs “must show complete Department of Justice involving Paiutes and denial of the ability to vote or submitted a statement Shoshones living on the participate.”52 The judge concurring with the plaintiffs Pyramid Lake Reservation in accepted the plaintiffs’ and argued that the vastly Washoe County and the Walker argument that the differential greater travel distances faced River Reservation in Mineral access, combined with some of by the Native American County. After their request for the “Senate factors,” population in these counties an on-reservation early voting constituted “abridgement” of when trying to cast an early in- center was turned down, tribal the defendants’ right to vote in person or absentee ballot members sought a preliminary violation of Section 2.53 compared to the white injunction. Nixon, the population amounted to a population center of the “There is a constant cry denial of equal access.50 The Pyramid Lake Reservation is for recognition that amicus brief showed that 48 miles from the Mineral presses against a similarly Native Americans on average County seat in Reno. Residents constant movement would have to travel from of the Walker River pushing them to the 189% to 322% more than their Reservation faced a similar fringes of American white counterparts to access situation in Washoe County, society.” these types of ballots. The where the county seat, Ninth Circuit declined to hear Hawthorne, is 35 miles away. There are two very the case, rendering the original The Nevada Secretary of State significant take-aways from 2012 request for a preliminary and the two county this litigation. First, unlike the injunction moot. The case was governments faced a public earlier travel distance cases, allowed to continue based on relations disaster when it was Sanchez v. Cegvaske (2016) the additional Section 2 revealed that the state had was not resolved through the questions brought forward, but established 21 early voting parties reaching a settlement. the parties settled on June 10th, sites, largely in affluent white Instead there was a judicial 2014 establishing satellite communities. On September 7, ruling---the first---that could be offices on the three reservations 2016, Judge Miranda Du issued cited as precedent in Section 2 in question.51 a preliminary injunction and abridgement cases involving directed the state of Nevada unequal access due by travel

50 United States District Court of Montana was running stories about the hundreds of 3/16/2017. Journalists from the Great Billings Division. Statement of Interest of racist emails that he had sent out from his Falls Tribune subsequently tried to gain the United States of America. Case No. courthouse chambers. The most access to these emails, after being told 1:12-CV-135-RFC. October 24th, 2012. provocative of these was an email that many of the derogatory ones dealt 51 Had the case been reheard at the suggesting that President Obama’s mother with Native Americans, but their request district court level, there would have been had sex with a dog. Adams, John S. 2014. was denied. Adams v. Committee on a new judge, because in the intervening “Cebull Probe Finds More Emails: Judicial Conduct & Disability, Case No. period, Judge Richard Cebull had taken Hundreds are Related to ‘Race, Politics, 15-CV-01046-YGR. 165 F. Supp. 3d early retirement after being found to have Gender.’” Great Falls Tribune. January 911(2016). violated numerous ethnical codes. In 16. 52 Sanchez v. Cegvaske, 2016 Westlaw early 2012, right at the time when Judge http://www.greatfallstribune.com/story/ne 5936918. Cebull was ruling in the Wandering ws/2014/01/17/federal-panel-releases- 53 Id. Medicine case, the Great Falls Tribune findings-in-cebull-misc... Accessed

Fall 2017 Volume 2 distance combined with socio- This is what the legal dispute proactively prevent political demographic factors.54 This is over abridgement concerns. jurisdictions from adopting extremely important We would argue that nothing procedures that make it harder development. Second, the less than full equality in access for them to have access to the reaction of government is the appropriate legal ballot box----and given the long officials to the ruling, however, standard. history of discrimination suggests that those opposed to The Supreme Court’s against Native peoples, this is Native American voting rights decision in Shelby County v. not likely to disappear in the will not acquiesce to enhanced Holder (2013) decision has near future. access unless forced to do so. made this struggle more After the Sanchez ruling, the challenging. No longer are Inter-Tribal Council of Nevada political jurisdictions with asked the state to create histories of voting rights abuses satellite early-voting locations required to “pre-clear” changes for the remaining seven tribes to their election laws and not covered by the ruling, but procedures. This opens up the they were refused. possibility that both old and new forms of vote denial Conclusion dilution, and abridgement will have to be fought in the courts, The struggle for equal and at great expense to voting rights for Native litigants. Moreover, these Americans is very much a cases will have to argue that the continuation of Native procedures violate the standard Americans’ ongoing struggle of proof required in Section 2 for civic equality. There is a litigation. Cases, such as constant cry for recognition Brooks v. Gant (2012), Poor that presses against a similarly Bear v. The County of Jackson constant movement pushing (2014), and Sanchez v. them to the fringes of Cegvaske (2016), show that American society. While plaintiffs can get redress Native Americans can no through Section 2 litigation, but longer be statutorily prohibited it depends upon whether from voting, achieving equal individual judges, such as access to the ballot box is a Judge Miranda Du, recognize continuing concern. As the the seriousness of vote ways available for Americans abridgement. Yet even were to vote have changed, new the Supreme Court to accept forms of discounting their vote the legal test developed in have emerged. Does the Sanchez v. Cegvaske, the Voting Rights Act require problem would still not be fully equality of access to all types addressed. As a result of the of voting or is differential Shelby ruling, American access allowed, as long as there Indians (and other minority are some means of voting? populations) still lack a way to

54 Id.

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LANGUAGE SUPPRESSION, REVITALIZATION, AND NATIVE HAWAIIAN IDENTITY Shari Nakata J.D. (UCI Law), Ph.D. (Classics, UCI) Inland Counties Legal Services.

I ka ʻōlelo nō ke ola, i ka ʻōlelo nō ka make1 Through language there is life; through language there is death

Having been the target of colonialist suppression for over a century and a half, the Hawaiian language has experienced a period of revitalization that began with the Native Hawaiian cultural and political renaissance of the 1970s. This revitalization, achieved largely through the growth and development of immersion schools, has led to a dramatic increase in the number of official speakers of Hawaiian and to more widespread acceptance of the language. Suppression of the language, however, is still ongoing in different contexts, particularly in education, government, and the courts. This holds true despite Hawaiian’s designation as one of the two official languages of Hawaiʻi. Yet there are legal steps that might be taken to solidify the status of Hawaiian as an official language—not just in theory, but also in practice.

I. The Native Hawaiian both by means of ancient was political, as it precipitated Renaissance methods; and the spiritual long overdue official practices of the ancient recognition of Native Hawaiian In the 1970s, Hawaiʻi was religion, including the rights. To this end, the Hawaiʻi witness to an extraordinary preservation and maintenance State Constitutional Native Hawaiian renaissance of sacred spaces. Moreover, the Convention in 1978 enacted that revitalized an indigenous renaissance gave rise to a amendments to the Hawaiʻi people long subjected to renewed interest in learning the State Constitution that Western colonial domination Native Hawaiians’ ancestral committed the state to the and suppression.1 This methods of navigation. In 1976, preservation and promotion of renaissance was multifaceted the newly-founded Polynesian Native Hawaiian culture. One and complex. On one level, it Voyaging Society2 launched of these amendments was a cultural renaissance, as it the Polynesian voyaging canoe established the Office of heralded a resurgence of Hōkūleʻa (“Star of Gladness”), Hawaiian Affairs, charged with interest in various aspects of which made a revolutionary the mission of improving the Native Hawaiian heritage: journey to Tahiti and back by well-being of Native traditional chants (oli), music, means of those ancient Hawaiians. The sovereignty and dance (hula kahiko); the navigation techniques, using movement for Native Hawaiian cultivation of traditional crops only celestial signs and ocean self-determination also gained such as taro (kalo) and the currents as guides.3 ground during the renaissance, practice of aquaculture through On another level, the as Native Hawaiian political the use of fishponds (loko iʻa), Native Hawaiian renaissance leaders and activists belonging

1 See William H. Wilson, The Hawaiʻi ke ola, ‘Life is found in the 3 Polynesian Navigation, POLYNESIAN Sociopolitical Context of Establishing Hawaiian language,’ INT’L J. SOC. VOYAGING SOCIETY, Hawaiian-medium Education, in LANGUAGE 123, 130–131 (1998). http://www.hokulea.com/education-at- INDIGENOUS COMMUNITY-BASED 2 POLYNESIAN VOYAGING SOCIETY, sea/polynesian-navigation/. EDUCATION 95, 98–100 (Stephen May ed., http://www.hokulea.com/. [https://perma.cc/AV5T-84MM] 1999); William H. Wilson, I ka ʻōlelo [https://perma.cc/8QFF-A98J]

14 Fall 2017 Volume 2 to different grassroots immersion schools began suppressed language goes hand organizations began organizing operating in 1984.6 These were in hand with a revitalization of and demonstrating on a regular the first official immersion a suppressed cultural and basis for the sovereignty schools in the United States political identity. Revitalizing cause.4 with an indigenous language as the Hawaiian language means the medium of instruction. In revitalizing Native Hawaiian “By 1983, there were only 1987, the state Board of identity. This Native Hawaiian two thousand native Education agreed to a pilot identity was erased in the speakers in Hawai’I.” program of Hawaiian language nineteenth century by a immersion in selected public “language shift and sovereignty Especially crucial, schools.7 Full-fledged shift in government and however, to the Native Hawaiian language programs education domains” that were Hawaiian renaissance was the and Hawaiian studies “simultaneous and symbiotic.”9 start of the revitalization of the programs—taught in Just as English supplanted the Hawaiian language (ʻōlelo Hawaiian—at the University of Hawaiian language as the Hawaiʻi). The language had Hawaiʻi, which had gotten off language of education and been banned in 1896 as a the ground in the 1970s, governance, so did the United medium of instruction in burgeoned in the 1980s.8 States supplant Hawaiian schools, and almost eighty This process of language sovereignty. Indeed, the years later, it was in serious revitalization has served as an linguistic dominance of English danger of extinction. attempt to resist the colonialist was largely dependent upon the By 1983, there were only suppression that the language language being granted the two thousand native speakers in had undergone over the past “sole legitimacy of Hawaiʻi, including fifty under century and a half. governance.”10 the age of eighteen, in addition In a number of ways, the to a number of much older “The language of a people revitalization of the Hawaiian native speakers, most of them is an inextricable part of language is no longer living in a community of full- the identity of that people. suppressed as it once was. It is blooded Native Hawaiians on Therefore, a revitalization now recognized, of course, as 5 the small island of Niʻihau. of a suppressed language one of Hawaiʻi’s two official Via a constitutional amendment goes hand in hand with a languages.11 It is now possible in 1978, the state had revitalization of a to receive a K-12 Hawaiian- designated Hawaiian as one of suppressed cultural and medium education in selected the two official languages of political identity.” public schools. The University Hawaiʻi. Due to the concerted of Hawaiʻi at Hilo offers efforts of a grassroots The language of a people is graduate degrees taught in organization of parents who an inextricable part of the Hawaiian: an M.A. in Hawaiian wanted Hawaiian to be their identity of that people. Language and Literature and children’s primary language, Therefore, a revitalization of a independent Hawaiian

4 For overviews of the sovereignty DAUGHTER: COLONIALISM AND 7 Id. movement, see, e.g., A NATION RISING: SOVEREIGNTY IN HAWAIʻI (1999). 8 Id. HAWAIIAN MOVEMENTS FOR LIFE, LAND, 5 NATIVE HAWAIIAN LAW: A TREATISE 9 Breann Nuʻuhiwa, “Language Is Never AND SOVEREIGNTY (Noelani Goodyear- 1274 (Melody Kapilialoha MacKenzie About Language”: Eliminating Language Kaʻōpua, Ikaika Hussey & Erin ed., 2015). Bias in Federal Education Law to Further Kahunawaikaʻala Wright eds., 2014); J. 6 See A Timeline of Revitalization, E OLA Indigenous Rights, 37 U. HAW. L. REV. KĒHAULANI KAUANUI, HAWAIIAN BLOOD: KA ʻŌLELO HAWAIʻI, 381, 406 (2015). COLONIALISM AND THE POLITICS OF http://www.ahapunanaleo.org/index.php?/ 10 Id. at 405. SOVEREIGNTY AND INDIGENEITY (2008); about/a_timeline_of_revitalization/. 11 Hawaiʻi is the only state in the nation HAUNANI-KAY TRASK, FROM A NATIVE [https://perma.cc/C6VL-3FQB] with two official languages.

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Hawaiian12 and a Ph.D. in immersion schools have Courts neither accept Indigenous Language and regularly faced uphill battles documents in Hawaiian nor Cultural Revitalization.13 The for recognition and state allow Hawaiian to be spoken in official state motto and anthem funding, notwithstanding the court proceedings. are in Hawaiian.14 The state commitment to the preservation The revitalization of the and municipal governments use and promotion of Native Hawaiian language and Native official Hawaiian orthography Hawaiian culture in the state Hawaiian identity thus for words and names in official constitutional amendments of continues to face various documents and street signs.15 1978. These advocates have challenges. For all the There is a weekly radio also faced the skepticism of achievements of the Native program broadcast entirely in those who believe that Hawaiian renaissance, and Hawaiian.16 There is also a Hawaiian immersion schools despite the progress that the television station that will produce individuals who language has made over the broadcasts programs in are monolingual and unable to past forty years in avoiding Hawaiian,17 and the prestigious make their way in a country extinction, the Hawaiian hula competition at the Merrie where English is the de facto language is still far from being Monarch Festival is now official language. Moreover, an official language in practice. broadcast in both English and despite its official status, The aim of this paper is to Hawaiian.18 Banks in Hawaiʻi Hawaiian is not an official interrogate the Hawaiian even accept checks drafted in language of government in language’s status as an official Hawaiian.19 Hawaiʻi. Article XV, Section 4 language of Hawaiʻi by Yet in other ways, the of the Hawaiʻi State examining how and why current situation belies the Constitution designates English suppression of the language Hawaiian language’s and Hawaiian as the state’s continues to this day, both in designated official status. The official languages, “except that ways that are different from total number of speakers Hawaiian shall be required for those implemented in the (including second-language public acts and transactions nineteenth century, but also in speakers) is estimated to be just only as provided by law.” With ways that are not very different over 18,000 out of a state very few exceptions, state at all. Part II of the paper will population of 1.4 million.20 statutes and city ordinances are trace the history of the Advocates for Hawaiian published only in English. colonialist suppression of the

12 Master of Arts (M.A.) in Hawaiian Ponoʻī, composed by King David Language Policy and the Courts, 34 HAW. Language and Literature, KA HAKA ʻULA Kalākaua. J. HIST. 1, 12 (2000). O KEʻELIKŌLANI (“COLLEGE OF HAWAIIAN 15 On the use of Hawaiian and non- 20 With 18,610 self-reported speakers, LANGUAGE”), Hawaiian place names in Hawaiʻi, see Hawaiian ranks fifth in a list of languages http://www.olelo.hawaii.edu/khuok/mhhm R.D.K. Herman, The Aloha State: Place other than English that people speak at a.php. [https://perma.cc/F9QV-GN9G] Names and the Anti-conquest of Hawaiʻi, home in Hawaiʻi. RESEARCH AND 13 Doctor of Philosophy (Ph.D.) in 89 ANNALS ASS’N AM. GEOGRAPHERS 76 ECONOMIC ANALYSIS DIVISION, Hawaiian and Indigenous Language and (1999). DEPARTMENT OF BUSINESS, ECONOMIC Cultural Revitalization, KA HAKA ʻULA O 16 The program is called Alana I Kai Ikina DEVELOPMENT AND TOURISM, STATE OF KEʻELIKŌLANI (“COLLEGE OF HAWAIIAN (“Rising in the Eastern Sea”), on KWXX- HAWAII, DETAILED LANGUAGES SPOKEN LANGUAGE”), FM, broadcast from Hilo, Hawaiʻi. AT HOME IN THE STATE OF HAWAII 8 http://www.olelo.hawaii.edu/khuok/mhhp 17 The Native Hawaiian-owned and (2016), hd.php. [https://perma.cc/F9QV-GN9G] operated station is called ʻŌiwi TV. ʻŌiwi http://files.hawaii.gov/dbedt/census/acs/R 14 The state motto is Ua mau ke ea o ka is the Hawaiian word for “native.” eport/Detailed_Language_March2016.pdf ʻāina i ka pono (attributed to King 18 Instructions for SAP-Hawaiian . [https://perma.cc/FL9F-RQCR] On the Kamehameha III and translated literally as Language, MERRIE MONARCH FESTIVAL, various categories of speakers of “The sovereignty of the land is restored, http://merriemonarch.com/instructions- Hawaiian, see Matthias Brenzinger & as it should be,” but generally sap-hawaiian-language. Patrick Heinrich, The Return of mistranslated as “The life of the land is [https://perma.cc/XH7D-2JLF[ Hawaiian: Language Networks of the perpetuated in righteousness.”). The state 19 Paul F. Nahoa Lucas, E Ola Mau Kākou Revival Movement, 14 CURRENT ISSUES anthem (with Hawaiian lyrics) is Hawaiʻi I Ka ʻŌlelo Makuahine: Hawaiian LANGUAGE PLAN. 300, 306–09 (2013).

16 Fall 2017 Volume 2 language, from the arrival of language developed a long producing instructional the missionaries in the 1820s to tradition of oral literature, materials, newspapers, and a the years following statehood including chants, prayers, Bible, all in the Hawaiian in 1959. Part III will trace the histories, myths, and traditional language. key steps taken towards the sayings.23 Traditional Native Despite the success of the revitalization of the language Hawaiian schooling took place Hawaiian-medium schools, as during and after the Hawaiian first in the home and then shown by the high levels of renaissance. Part IV will through instruction via the literacy among Native examine the ways in which equivalent of apprenticeships to Hawaiian adults in the 1850s,27 suppression of the language is elders. Apprentices were taught growing numbers of educators still ongoing in the face of this to “observe, listen, and were advocating an “English revitalization. Part V will imitate.”24 mainly” policy by the middle discuss a number of steps that The American of the century.28 In 1839, the might be taken to solidify the missionaries25 introduced missionaries had already status of Hawaiian as an Western-style formal schooling established the Royal School, official language of Hawaiʻi in 1824, but with Hawaiian as which was the first English- not just in theory, but also in the initial medium of medium school in Hawaiʻi. practice. instruction.26 The missionaries This private school was found it urgent to educate the intended to educate the Native II. The Colonialist natives as quickly as possible Hawaiian elite (royalty and Suppression of the in order to save them from chiefs) who expressed a desire Hawaiian Language what they perceived to be to learn a language that was superstitious and immoral ways quickly making its presence felt In what is generally known through conversion to in the kingdom29 —not only as the pre-contact period (i.e., Christianity. In addition, they due to the missionaries, but before the arrival of the first believed that they would risk also because of the increasing Europeans in 1778), the losing control over the natives influence of Westerners Hawaiian language was if the population at large were (largely Americans) in business entirely oral, and had no to acquire English proficiency. and politics. Advocates of the written form. It was rich, To this end, the missionaries “English mainly” policy nuanced, and sophisticated, found it simpler to learn viewed instruction in English with words having a multitude Hawaiian themselves and then as a logical response to the of meanings (kaona), both to teach the natives in their own steadily increasing English- literal and figurative, and it language. It was the speaking population, the abounded in poetic concepts.21 missionaries who created an rapidly decreasing Native Spoken words embodied a host alphabet for the language, Hawaiian population (due to of life forces (mana) with based on English. Having disease), the influx of “significant physical and brought a printing press with immigrants, and the “heathen spiritual powers unknown in them to Hawaiʻi, the practices” of the Native Western society.”22 The missionaries were soon Hawaiians that had persisted

21 Lucas, supra note 20, at 1–2. Massachusetts, sent missionaries to 28 Lucas, supra note 20, at 4–5. 22 Id. at 2. Hawaiʻi over a period of more than thirty 29 Both King Kamehameha III and King 23 THE GREEN BOOK OF LANGUAGE years. These missionaries belonged to the Kamehameha IV publicly espoused the REVITALIZATION IN PRACTICE 134 (Leanne United Church of Christ. advantages of learning English, which Hinton & Ken Hale eds., 2001). 26 Nuʻuhiwa, supra note 10, at 398. they believed would allow Native 24 NATIVE HAWAIIAN LAW, supra note 6, 27 MAENETTE K.P. BENHAM & RONALD H. Hawaiians to engage with Westerners on at 1261. HECK, CULTURE AND EDUCATIONAL equal terms. NATIVE HAWAIIAN LAW, 25 The American Board of Commissioners POLICY IN HAWAIʻI: THE SILENCING OF supra note 6, at 1264. for Foreign Missions, founded in 1810 in NATIVE VOICES 70 (1998).

17 Fall 2017 Volume 2 despite the missionaries’ best Although Hawaiian was an colonial activity.”38 By the end efforts.30 These advocates official language of of the Kamehameha dynasty in supported the establishment of government in Hawaiʻi the early 1870s, the legislature English-medium government- throughout most of the was publishing laws and run schools that would be open nineteenth century, its status documents in English first and to all. These schools, which shifted over the years. A statute having them translated into began operating in 1854, came enacted in 1846 required all Hawaiian afterwards.39 to be better funded than the laws to be published in both There were, to be sure, Hawaiian-medium schools and Hawaiian and English.33 some voices of resistance to the had more resources overall in Indeed, laws as well as all other growing dominance of English terms of literature and teacher government documents were in the kingdom. In 1864, the training.31 As a result, bilingual, in order to meet the Native Hawaiian head of the enrollments began to decline in needs of both Native Hawaiians Board of Education severely the Hawaiian-medium schools. and Westerners.34 The Hawaiʻi criticized the legislature’s Growing numbers of Native Supreme Court had even practice of prioritizing English- Hawaiians started enrolling initially legitimized Hawaiian medium schools over the their children in the English- as the dominant language, but Hawaiian-medium schools. He medium schools in order to Hawaiian came to be perceived saw the preservation of the take advantage of their superior as ill-adapted to the uses of Hawaiian language as resources. Even the lawmakers and the courts.35 In necessary for the kingdom’s Kamehameha Schools, founded 1859, the Hawaiʻi legislature identity as a Native Hawaiian later in the century (1887) for passed a law providing that the nation, but instruction in the education of Native English version of any statute English was teaching Native Hawaiian children, began by would be binding over the Hawaiians to view their own using English as the sole Hawaiian language version.36 language as inferior and not medium of instruction. The Reenacted six years later, the worth preserving.40 There were decline of Hawaiian-medium law provided that “[w]henever even some missionaries who schools increased through the there exists a radical and argued against these latter half of the nineteenth irreconcilable difference perceptions of the Hawaiian century as the numbers of between the English and language as inferior.41 immigrants to Hawaiʻi Hawaiian versions of the laws In the latter half of the increased, owing to the large- of the Kingdom, the English nineteenth century, King David scale recruitment of workers version shall be held Kalākaua fostered a resurgence for the sugar plantations. The binding.”37 Although the of Hawaiian culture42 in children of immigrants were legislature included both opposition to Western taught only in English-medium Native Hawaiian and American influences—yet this was met schools. By 1888, only 15.7 representatives, the former by counter-resistance on the percent of all students were group was largely missionary- part of government. Kalākaua enrolled in Hawaiian-medium educated, a fact that may have sponsored efforts to schools.32 “sway[ed] government permanently record ancient decisions toward dominant chants and genealogies in

30 Nuʻuhiwa, supra note 10, at 399. HISTORY TO 1935, 32 (Stanley M. Tsuzaki 40 NATIVE HAWAIIAN LAW, supra note 6, 31 Lucas, supra note 20, at 5–6. ed., 1969). at 1267. 32 NATIVE HAWAIIAN LAW, supra note 6, 35 Id. 41 Id. at 1267–68. at 1265. 36 Civil Code of 1859, sec. 1493. 42 This resurgence is sometimes referred 33 Act of April 27, 1846, ch. 1, art. 1, sec. 37 Act of Jan. 10, 1865, sec. 1. to as the first Hawaiian renaissance, as 5. 38 BENHAM & HECK, supra note 25, at 50. opposed to the renaissance of the 1970s. 34 JOHN E. REINECKE, LANGUAGE AND 39 REINECKE, supra note 32. DIALECT IN HAWAII: A SOCIOLINGUISTIC

18 Fall 2017 Volume 2 writing, supported instruction in both public and “These ‘English only’ laws performances of ancient music private schools.46 This law were part of the federal and hula, encouraged Native effectively banned all non- government’s broader Hawaiian religious practices English languages (not just effort at the time to and ancient medicinal healing, Hawaiian) as a medium of eradicate the indigenous and collected and preserved instruction. As an “English languages of Native 43 cultural artifacts. In 1883, only” advocate observed, Americans on the during Kalākaua’s reign, the “With this knowledge of mainland.” Hawaiʻi Supreme Court heard a English will go into the young case in which a non-Hawaiian American republican and These “English only” laws printer was convicted of Christian ideas; and as this were part of the federal publishing a program of hula knowledge goes in, kahunaism, government’s broader effort at written in Hawaiian for fetishism and heathenism the time to eradicate the Kalākaua’s coronation.44 The generally will largely go out.”47 indigenous languages of Native government deemed the hula to Since education in a language Americans on the mainland, be obscene. The court reversed is crucial for language survival, which included the removal of the conviction on the narrow the survival of the Hawaiian children to English-medium grounds that the printer did not language was now put to an boarding schools.53 The goal of know Hawaiian and, therefore, extreme test. In 1880, there this “English only” policy was had no criminal intent. The fact were as many as 150 Hawaiian- to assimilate, eradicate native that the government medium schools still in cultures, and promote national criminalized the publication of operation.48 Prior to the 1896 unity via the creation of a Hawaiian and the court did not law, there were seventy-seven; national character; in addition, comment on the government’s after 1896, only one of these it had the added purpose of obscenity claim indicated that schools remained.49 By 1902, it protecting indigenous people in the “free and open exercise of was gone.50 The very act of their business dealings and Hawaiian” was clearly coming speaking Hawaiian was transforming them into good to an end.45 forbidden and severely citizens.54 The illegal overthrow of the punished in schools; teachers After annexation, the Hawaiian Kingdom in 1893 by even paid home visits to Hawaiian language entered a American businessmen (a reprimand parents for speaking linguistic dark age that was to number of whom belonged to Hawaiian to their children in last for a good part of the missionary families), with the their own homes.51 The twentieth century. The aid of military forces, dealt a Organic Act of 1900, which language went underground crippling blow to the Hawaiian was enacted two years after the and largely found refuge in language. In 1896, the U.S. annexation of Hawaiʻi, some churches, particularly in government of the new ensured the dominance of sermons and various church Republic of Hawaiʻi English in the new Territory of publications.55 A small group implemented an “English only” Hawaiʻi by providing that all of ministers from these policy by enacting a law government business was to be churches taught the language at establishing English as the conducted in English only.52 the University of Hawaiʻi for a exclusive medium of

43 Id. at 1268–69. 48 ALBERT J. SCHÜTZ, THE VOICES OF 50 SCHÜTZ, supra note 49. 44 The King v. Grieve, 6 Haw. 740 (1883). EDEN: A HISTORY OF HAWAIIAN 51 Lucas, supra note 20, at 9. 45 Lucas, supra note 20, at 8. LANGUAGE STUDIES 352 (1994). 52 Organic Act of April 30, 1900, ch. 339, 46 Act of June 8, 1896, ch. 57, sec. 30. 49 David Barnard, Law, Narrative, and the §44, 31 Stat. 141 (1900). 47 Lucas, supra note 20, at 8. Continuing Colonialist Oppression of 53 Nuʻuhiwa, supra note 10, at 407–08. Native Hawaiians, 16 TEMP. POL. & C.R. 54 Id. at 408. L. REV. 1, 33 (2006). 55 Lucas, supra note 20, at 9–10.

19 Fall 2017 Volume 2 period of thirty years.56 Yet the imperative in both education government. Instead, the churches were unable to sustain and government.62 amendment allows for the language for long, as the exceptions, “as provided by Hawaiian-speaking ministers III. The Revitalization of law,” to the rule that English died one by one and there were the Hawaiian Language remains the language of no qualified individuals to take government in Hawaiʻi. their place.57 The language also The revitalization of the Second, Article X, Section disappeared from the public Hawaiian language towards the 4 affirms the state’s media. While over a hundred end of the twentieth century commitment to promoting Hawaiian-language newspapers began with acts of formal Native Hawaiian culture had been published since 1834, recognition by the supreme law through educational there was only one remaining of the state. The heightened programming in the public in circulation by 1948.58 public attention brought to schools: Moreover, there was no place Native Hawaiian culture and for Hawaiian on the radio or on identity by the renaissance of The State shall promote television.59 There were the 1970s laid the foundations the study of Hawaiian attempts in 1919 and 1935 to for three crucial amendments to culture, history and reintroduce the language into the Hawaiʻi State Constitution language. The State shall the schools by amending the in 1978. These amendments provide for a Hawaiian 1986 law. But Hawaiian was to support, both directly and education program be reintroduced as a course of indirectly, the preservation and consisting of language, instruction rather than as a promotion of the Hawaiian culture and history in the medium of instruction, and in language. First, Article XV, public schools. The use the form of woefully Section 4 recognizes Hawaiian of community expertise inadequate lessons lasting ten as an official language of the shall be encouraged as a minutes a day.60 Reversing the state: “English and Hawaiian suitable and essential practice of a century of shall be the official languages means in furtherance of bilingual publication, the of Hawaiʻi, except that the Hawaiian education legislature enacted a statute in Hawaiian shall be required for program. 1943 that required laws to be public acts and transactions published in English only.61 only as provided by law.” This This amendment When Hawaiʻi became a state amendment gives what acknowledges the importance in 1959 and tourism developed appeared to be legal status to a of including Native Hawaiian into a booming industry, the language that had been driven culture in the public school influx of English-speaking underground for almost a curriculum.63 While the visitors and the century and was rendered amendment does not explicitly commodification and nearly extinct. Granted, the mandate instruction with the debasement of Native amendment includes a Hawaiian language actually Hawaiian culture for the benefit disclaimer to the effect that used as a medium of of these visitors only further despite its official status, instruction, it does clearly reinforced the “English only” Hawaiian is not automatically provide for the study of the deemed a language of language.64

56 NATIVE HAWAIIAN LAW, supra note 6, of ʻŌlelo Hawaiʻi, 30 U. HAW. L. REV. became a requirement for graduation from at 1273. 243, 250 (2008). a public high school. Wilson (1999), 57 Id. 61 1943 Haw. Sess. Laws, ch. 218, sec. 1. supra note 2, at 100. 58 Lucas, supra note 20, at 9. 62 THE GREEN BOOK, supra note 24, at 64 In contrast with the history requirement, 59 Id. 135. a language requirement was not 60 Id. at 10; Kaʻanoʻi Walk, “Officially” 63 In 1978, a semester-long course in something that could be implemented What? The Legal Rights and Implications modern Hawaiian history (1778–present) immediately, due to a lack of qualified

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Third, Article XII, Section language gathered together in This pilot program, called 7 asserts the state’s 1983 to establish a nonprofit Papahana Kula Kaiapuni, was commitment to protecting organization, ʻAha Pūnana Leo, gradually extended over the various Native Hawaiian rights: Inc. (“Language Nest years, one grade per year, to “The State reaffirms and shall Corporation”) for the purpose grade 12.70 The goals of this protect all rights, customarily of Hawaiian-medium pilot program were “to assist and traditionally exercised for instruction.66 The organization the Hawaiian-speaking families subsistence, cultural, and created the first Pūnana Leo in the revitalization of the religious purposes and immersion preschool in the language and culture and possessed by ahupuaʻa65 following year, modeled after maintain usage of the language, tenants who are descendants of the successful Maori language to assist those families who native Hawaiians who preschools Te Kohango Reo in wish to integrate into the inhabited the Hawaiian islands Aotearoa (New Zealand).67 Hawaiian-speaking community prior to 1778, subject to the Additional preschools opened by eventually replacing their right of the State to regulate in 1985.68 home language with Hawaiian such rights.” This amendment Because of the 1896 for future generations, and to covers the rights enjoyed by the “English only” law, however, assist those families who wish ancient Native Hawaiians these initial Pūnana Leo to use Hawaiian as a second or before European contact, immersion preschools did not third language in interacting including cultural rights. operate under the auspices of with the Hawaiian-speaking Granted, the amendment the state Department of community.”71 In 1999, the includes a disclaimer regarding Education. As a result of first class of students to have the state’s prerogative to intense lobbying efforts by received a K-12 education “regulate such rights,” which ʻAha Pūnana Leo, the state taught entirely in Hawaiian appears to limit the legislature passed an received their high school reaffirmation and protection of amendment in 1986 to the 1896 diplomas.72 In 2011, reports these rights asserted at the law, allowing special projects indicated that Hawaiian beginning of the section. using the Hawaiian language immersion students were The renewed interest in with approval by the state maintaining a 100% graduation revitalizing the Hawaiian Board of Education.69 The rate from high school, with language led to the Board itself then approved a over 80% going on to higher establishment of the first pilot Hawaiian Language education.73 By 2015, twenty- Hawaiian-language immersion Immersion Program in 1987 for one immersion schools across preschools in the early 1980s. children wishing to continue Native Hawaiian parents with their immersion in the seeking to raise their children language after graduating from to speak Hawaiian as their first the Pūnana Leo preschools.

instructors. Indeed, “short lessons in 66 Timeline, supra note 7. On the 67 Lucas, supra note 20, at 11; Nuʻuhiwa, colours, body parts and greetings” were advantages of Hawaiian-medium supra note 10, at 416–17. decidedly not what proponents had in education, see William H. Wilson & 68 Timeline, supra note 7. mind. Id. at 100–101. Kauanoe Kamanā, “For the Interest of the 69 Haw. Rev. Stat. sec. 298-2(b) (1993). 65 The ahupuaʻa was the traditional Hawaiians Themselves”: Reclaiming the 70 Lucas, supra note 20, at 11. Hawaiian pie-shaped land division, Benefits of Hawaiian-Medium Education, 71 Lucas, supra note 20, at 11. extending from the mountains all the way 3 HŪLILI 153 (2006); Keiki K.C. 72 Timeline, supra note 7. down to the seashore. Under the rule of a Kawaiʻaeʻa, Alohalani Kaluhiokalani 73 Celebrating Success of Hawaiian chief and under supervision by an (Kaina) Housman & Makalapua (Kaʻawa) Immersion Schools, HAWAIʻI ISLAND overseer, the common people maintained Alencastre, Pūʻā i ka ʻŌlelo, Ola ka JOURNAL, the ahupuaʻa, which was self-sufficient ʻOhana: Three Generations of Hawaiian http://www.hawaiiislandjournal.com/2011 due to the sustainable resources that it Language Revitalization, 4 HŪLILI 183 /06/celebrating-success-of-hawaiian- provided. (2007). immersion-schools/.

21 Fall 2017 Volume 2 the state were educating about Alaskans, Aleut peoples, “The resolution thus 2,000 students each year.74 Native Hawaiians, and grants implicit approval descendants of the aboriginal for future efforts to repair “These charter schools peoples of Pacific islands that the relationship between provide students with an are U.S. possessions or the United States and the education that emphasizes territories. Pursuant to § 2904 descendants of subjects Native Hawaiian culture of the Act, “[t]he right of of the kingdom.” and values.” Native Americans to express themselves through the use of In 1993, Congress passed A network of seventeen Native American languages an Apology Resolution in public Native Hawaiian charter shall not be restricted in any official recognition of the schools has also developed, public proceeding, including illegal overthrow of the partly out of a desire for publicly supported education Hawaiian Kingdom in 1893.79 autonomy from the traditional programs.” The federal Native This joint resolution public school system and for Hawaiian Education Act acknowledges the “historical the freedom to explore (NHEA), enacted in 1994, has significance of this event which innovative pedagogical the goal of improving resulted in the suppression of methods. These charter schools educational opportunities for the inherent sovereignty of the provide students with an Native Hawaiians and restoring Native Hawaiian people.”80 education that emphasizes the linguistic integrity of the The resolution also notes the Native Hawaiian culture and Hawaiian language.78 The public apology granted in the 75 values. While the instruction Native Hawaiian Education same year by the United in some of these schools is in Council, which implements Church of Christ (the church of English, six of these schools programs under the NHEA, is the missionaries sent to are actual Hawaiian language comprised of members Hawaiʻi), which acknowledged 76 immersion schools. recommended by the Native its “historical complicity” in In the 1990s, the Hawaiian community. The the illegal overthrow.81 The revitalization of the Hawaiian Council awards grants to resolution expresses Congress’ language received legal Native Hawaiian educational “commitment to acknowledge validation through Congress. and community-based the ramifications of the The federal Native American organizations engaged in overthrow of the Kingdom of Languages Act (NALA), projects supporting Native Hawaiʻi, in order to provide a enacted in 1990, encourages Hawaiian education. Hawaiian- proper foundation for the preservation and promotion medium classroom instruction reconciliation between the of native languages by is on the list of prioritized United States and the Native encouraging children to be projects eligible for these Hawaiian people.”82 By educated in their own grants. acknowledging Native 77 language. The Act applies to Hawaiian suppression and the Native Americans, Native need for reconciliation between

74 Nuʻuhiwa, supra note 10, at 417. For a charter schools, see Nina K. Buchanan, 78 Native Hawaiian Education Act, 25 list of these immersion schools, see Robert A. Fox, Susan Leigh Osborne & C. U.S.C. §§ 7511 et seq. Kaiapuni schools—Hawaiian language Puanani Wilhelm, Kua O Ka Lā: A 79 Joint Resolution, 103d Congress, Nov. immersion, HAWAII STATE DEPARTMENT Hawaiian Culturally Focused Charter 23, 1993, Publ. L. No. 103-150, 107 Stat. OF EDUCATION, School, in PROUD TO BE DIFFERENT: 1510. http://www.hawaiipublicschools.org/Teac ETHNOCENTRIC NICHE CHARTER SCHOOLS 80 Id. hingAndLearning/StudentLearning/Hawai IN AMERICA 21, 28–33 (Robert A. Fox & 81 Id. ianEducation/Pages/Hawaiian-language- Nina K. Buchanan eds., 2014). 82 Id. immersion-schools.aspx. 76 Kaiapuni schools, supra note 75. 75 For an overview of the development 77 Native American Languages Act, 25 and philosophy of these Native Hawaiian U.S.C. §§ 2902 et seq.

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Native Hawaiians and their Education has not recognized NALA creates no enforceable colonial oppressor, the any affirmative duty to fully rights or implied private right resolution thus grants implicit fund the Hawaiian language of action: in other words, approval for future efforts to immersion schools. The NALA does not impose an repair the relationship between Board’s official position in affirmative duty on the state to the United States and the 1997 was that the program is a provide what OHA requested. descendants of subjects of the program of choice and not of The court ruled in favor of kingdom. The illegal overthrow right.87 Therefore, the the DOE. It found that § 2904 was a colonial act that led immersion schools can and do of NALA provides that the directly to the legal prohibition receive funds if they are “right of Native Americans to of the Hawaiian language in the available, but not at the express themselves through use schools as well as in expense of other public schools of Native American languages government. Therefore, the and school programs where shall not be restricted in any resolution arguably apologizes English is the medium of public proceeding, including as well for this legal instruction. publicly supported education prohibition of the language.83 A lack of adequate funding programs.” However, the court While the resolution does and support for the Hawaiian did not see this provision as include a disclaimer asserting immersion schools gave rise in creating an enforceable right: that “[n]othing in this Joint the 1990s to a legal challenge “at most it prevents the state Resolution is intended to serve to the state Department of from barring the use of as a settlement of any claims Education (DOE). At stake was Hawaiian languages in against the United States,”84 the the potential for such funding schools.”88 Yet the court failed resolution’s official gesture and support, in the form of to consider the historical towards reconciliation efforts is curriculum materials and context for the decline of nonetheless significant. teacher training, to put the Hawaiian-medium schools in immersion schools on a level the nineteenth century— IV. The Ongoing equaling or exceeding English- particularly the fact that Suppression of the language instruction in the English-medium schools were Hawaiian Language public schools. In Office of better funded and enjoyed Hawaiian Affairs v. superior resources in A. Education Department of Education, 951 comparison.89 The court also While neither the federal F. Supp. 1484 (D. Haw. 1996), failed to acknowledge the nor state government generally the Office of Hawaiian Affairs skepticism (and even hostility) cannot enact laws restricting claimed that the DOE’s failure of certain DOE administrators the use of non-English to provide sufficient support and school principals regarding languages,85 the government and resources for the the viability of the Hawaiian does not necessarily have an immersion schools violated immersion schools.90 The affirmative duty to provide both state law and the Native refiling of portions of the non-English speakers with American Languages Act OHA’s lawsuit in 1998 led to a programs and/or services in (NALA). The State argued that settlement in 2000 for their own language.86 Indeed, OHA’s claim under NALA increased funding for the the Hawaiʻi state Board of should be dismissed because immersion schools over the

83 Summer Kupau, Judicial Enforcement 85 See, e.g., Meyer v. Nebraska, 262 U.S. 88 Office of Hawaiian Affairs v. of “Official” Indigenous Languages: A 390 (1923). Department of Education, 951 F. Supp. Comparative Analysis of the Māori and 86 See, e.g., Guadalupe Organization, Inc. 1484, 1495 (D. Haw. 1996). Hawaiian Struggles for Cultural v. Tempe Elementary School District No. 89 NATIVE HAWAIIAN LAW, supra note 6, Language Rights, 26 U. HAW. L. REV. 3, 587 F.2d 1022 (9th Cir. 1978). at 1278. 495, 520 (2004). 87 Lucas, supra note 20, at 12. 90 Id. 84 Id.

23 Fall 2017 Volume 2 next five years, with the OHA allowed third and fourth an official language in the partially matching funds graders to take assessment tests state constitution.” allocated by the DOE.91 written in Hawaiian.95 The court ruled against the “The immersion schools B. Government plaintiff. It rejected the as well as the Native The right to use the argument based on the state Hawaiian charter schools Hawaiian language in the constitution, holding that have also come into courtroom was the subject of a Article XV, Section 4 conflict with the No Child legal challenge in 1994, sixteen “provides little guidance” for Left Behind Act (NCLB) of years after Hawaiian was the court to determine whether 2001.” designated an official language there indeed existed a right to in the state constitution. In give a deposition in The immersion schools as Tagupa v. Odo, 843 F. Supp. Hawaiian.96 The court also held well as the Native Hawaiian 630 (D. Haw. 1994), a bilingual that it was not Congress’ intent charter schools have also come Native Hawaiian attorney to extend the reach of NALA, a into conflict with the No Child (fluent in both Hawaiian and statute that dealt primarily with Left Behind Act (NCLB) of English) contested a court order education, to judicial 2001.92 The charter schools in requiring him to give his oral proceedings in federal courts.97 particular have the autonomy to deposition in English for an In addition, the court decided use innovative and culturally employment discrimination that allowing depositions in based pedagogical methods, but lawsuit. He claimed that he had Hawaiian would result in these methods do not meet the the right to give the deposition unnecessary delays and goals of the NCLB, which are in Hawaiian. He argued that expenses involved in finding based on standardization.93 The this right came from Article qualified interpreters. Because immersion schools have also XV, Section 4 of the state the plaintiff was bilingual and encountered problems with the constitution (recognizing spoke English, it was more NCLB’s standardized testing Hawaiian as an official expedient for him to give his requirements. Although these language) and from NALA deposition in English.98 The schools formally introduce (recognizing the right of Native court thus found practical English into the curriculum at a Americans to express concerns to be controlling. later stage than do English themselves through the use of Ultimately, the court found that language schools, the NCLB Native American languages is “a definitive judicial assessment tests in English are not restricted in public determination of this issue is still required for all students at proceedings). better left to the Hawaii state the same time.94 There has been courts.”99 However, no state ongoing experimentation with “The right to use the courts have yet interpreted the standard assessment tests Hawaiian language in the legal effect of Article XV, translated into Hawaiian, but courtroom was the subject Section 4. The discouraging with mixed results. In 2015, the of a legal challenge in message conveyed by the DOE received a one-year 1994, sixteen years after Tagupa decision is that waiver from the U.S. Hawaiian was designated “language revitalization and Department of Education that perpetuation efforts end in the

91 Id. 95 E ola ka ʻōlelo Hawaiʻi: Assessment 96 Tagupa v. Odo, 843 F. Supp. 630, 631 92 No Child Left Behind Act, 20 U.S.C. §§ tests in Hawaiian language granted (D. Haw. 1994). 6301 et seq. federal waiver, OFFICE OF HAWAIIAN 97 Id. at 632. 93 NATIVE HAWAIIAN LAW, supra note 6, AFFAIRS, 98 Id. at 631. at 1280. http://www.oha.org/news/assessment- 99 Id. 94 Id. tests-in-hawaiian-language-granted- federal-waiver/.

24 Fall 2017 Volume 2 schools and homes, with no which had the authority to Wharepapa v. Police in place in the government and investigate Māori claims under 2002.110 In this case, the court the courts.”100 the 1840 Treaty of Waitangi held that a person “ought not to The holding in Tagupa (by which Māori tribes be presumed to have committed stands in contrast with the arguably ceded sovereignty to an offence merely because he is holding in the 2003 case England). The Tribunal speaking a language other than Commonwealth of the Northern recommended that official English, particularly when the Mariana Islands v. recognition of Te Reo Māori language being spoken is an Guerrero.101 In this case, the must be more than “mere official language of New appellant sought to overturn his tokenism . . . those who want to Zealand.”111 conviction on the grounds that use our official language on the trial court did not allow him any public occasion or when V. Hawaiian as an to use the Chamorro language dealing with any public Official Language of during trial. The appellant authority ought to be able to do Hawaiʻi based his right to use Chamorro so.”105 on Article XXII, Section 3 of Although the court in What does the future the Commonwealth Mihaka v. Police (1980) held portend for the Hawaiian Constitution, which designates that English was the official language as an official Chamorro as an official language of the courts,106 Te language of the state? Having language of the Northern Reo Māori can now be used in stepped back from the brink of Mariana Islands, along with any legal proceeding, thanks to extinction, the language has Carolinian and English. The ensuing legislation. The Treaty made remarkable progress over Supreme Court of the Northern of Waitangi Amendment Act of the past forty years. Yet the Mariana Islands reversed the 1985107 allowed the Tribunal to fact remains that despite the trial court, holding that a native investigate claims dating back ever-increasing numbers of speaker of Chamorro or to the Treaty of 1840. The individuals who now speak and Carolinian has the resulting Tribunal’s Report of write Hawaiian in immersion constitutional right to speak 1986 on the Te Reo Māori schools and in their homes, that language in court.102 claim considered whether the Hawaiian is not the language of Indeed, this right applies even New Zealand Crown was government or the courts. Forty if that native speaker is fluent obligated to preserve Te Reo years ago, of course, it could in English as well—as was the Māori under the 1840 not have been so. Today, the appellant in Guerrero. Treaty.108 The Māori Language 18,000 individuals who identify The Tagupa holding also Act of 1987 established the Hawaiian as the language they stands in contrast with the legal expressed right to speak Te speak at home show that it is a situation regarding the Reo Māori in legal living language, and it is indigenous Māori language (Te proceedings, regardless of the thriving. If the same kind of Reo Māori) in Aotearoa (New speaker’s English progress continues, the number Zealand).103 The Treaty of proficiency.109 This Act of Hawaiian language speakers Waitangi Act of 1975104 generated a number of court will only grow. The question, created the Waitangi Tribunal, decisions, culminating in then, remains as to what it will

100 Kupau, supra note 84, at 500. 104 Treaty of Waitangi Act, 1975 (N.Z.). 107 Treaty of Waitangi Amendment Act, 101 Commonwealth of the Northern 105 WAITANGI TRIBUNAL, DEP’T OF 1975 (N.Z.). Mariana Islands v. Guerrero, 2003 MP 15. JUSTICE, REPORT OF THE WAITANGI 108 WAITANGI TRIBUNAL, supra note 103. 102 Id. ¶ 10. TRIBUNAL ON THE TE REO MAORI CLAIM 109 Māori Language Act, 1987 (N.Z.). 103 For a comparative analysis of the (Wai 11) § 8.2.8 (1986) (N.Z.). 110 Wharepapa v. Police, [2002] N.Z.L.R. revitalization movements for the Māori 106 Mihaka v. Police, [1980] 1 N.Z.L.R. 611. and the Hawaiian languages, see Kupau, 460. 111 Id. at 617. supra note 84.

25 Fall 2017 Volume 2 truly mean for Hawaiian to be bilingualism is rendered existing under state law, and an official language of the meaningless: it would not outlined “specific, although not state. matter whether an individual necessarily exhaustive, An important consideration knows English or not. guidelines” in interpreting the with regard to this question rights in Article XII, Section 7 involves the ways in which the “If the use of Hawaiian is of the state constitution.115 The state constitutional framed as a cultural right, right that is sought must be amendments of 1978 “can be then bilingualism is “reasonable” and “traditional” used as a tool to increase rendered meaningless: it and in place prior to 1892.116 benefits for Hawaiian would not matter whether The state (or opposing party) 112 speakers.” Although the an individual knows must then show that some court in Tagupa found “little English or not.” actual harm would result by guidance” in Article XV, implementation of this right. Section 4 of the state There has been some The language of Article constitution, there have been discussion over how to affirm XII, Section 7 of the state proposals regarding possible the cultural rights of Native constitution creates an ways of framing the Hawaiians by advocating for enforceable right in ahupuaʻa amendments so as to build a the traditional and customary tenants (tenants of the case for the use of Hawaiian in rights of Native Hawaiians traditional Hawaiian land government and in the courts. pursuant to Article XII, Section division) choosing to practice Because the court in 7 of the state constitution. In their traditions and customs Tagupa reasoned that the Public Access Shoreline under state law. The plaintiff was not actually Hawaii v. Hawaiʻi County amendment specifically refers prevented from giving his Planning Commission (PASH), to these traditions and customs deposition, albeit in a language 903 P.2d 1246 (Haw. 1995), as “all rights, customarily and that he did not want to use, a the Hawaiʻi Supreme Court traditionally exercised for distinction has arisen between held that the state was subsistence, cultural, and an individual’s right of self- obligated to protect Native religious purposes and expression and the cultural Hawaiians’ legitimate exercise possessed by ahupuaʻa 113 right of a people. While the of traditional access and tenants.” It has been argued court in Tagupa viewed the gathering rights that had been that because Article XII, plaintiff’s fluency in English as established by 1892. Hawaiʻi’s Section 7 applies to “all rights,” a practical solution to an custom and usage law it should apply to the use of the immediate problem and saw no established English common Hawaiian language, as it is a violation of his right to self- law in Hawaiʻi in 1892, with a “well-documented and expression and due process, it special exception for existing customary practice that has failed to consider the Hawaiian judicial precedent or been exercised by Native 117 significance of using the established usage.114 In effect, Hawaiians for centuries.” Hawaiian language as a means this law subordinated English The PASH holding might thus of revitalizing both the and American common law to support the reaffirmation and language itself and the culture traditional and customary protection of the traditional and of the Native Hawaiian people. Native Hawaiian practices. The customary practice of using If the use of Hawaiian is court in PASH reaffirmed all Hawaiian in government and in 118 framed as a cultural right, then traditional and customary rights the courts. Indeed, it can be

112 Lucas, supra note 20, at 18. 115 Public Access Shoreline Hawaii v. 116 Id. at 1263. 113 Kupau, supra note 84, at 501; NATIVE Hawaiʻi County Planning Commission 117 Lucas, supra note 20, at 19. HAWAIIAN LAW, supra note 6, at 1288. (PASH), 903 P.2d 1246, 1259 (Haw. 118 Id. 114 HAW. REV. STAT. § 1-1 (2013). 1995).

26 Fall 2017 Volume 2 argued that the right to use Hawaiian is already framed as a cultural right in the amendment. Analogized to the traditional and customary rights in PASH, the right to use Hawaiian could be an enforceable right as well. In 2013, the Hawaiʻi state legislature enacted the first bilingual statute in seventy years.119 Enacted to establish February as ʻŌlelo Hawaiʻi Month (“Month of the Hawaiian Language”) to “celebrate and encourage the use of Hawaiian language,” the statute was largely symbolic. But the historic gesture is significant. Even if the process is incremental, the revitalization of the Hawaiian language continues. As the first half of the Hawaiian proverb goes, “I ka ʻōlelo nō ke ola.” (“Through language there is life.”)

119 Haw. Rev. Stat. § 8-24 (2013).

27 Fall 2017 Volume 2

A DISCUSSION WITH PAULETTE BROWN; HER LIFE AND HER PERSPECTIVES Robert Skrinyaz

When Paulette Brown spoke at the Diversity & Social Justice Forum’s Fall 2016 Symposium, she was the Immediate Past President of the American Bar Association. Ms. Brown honored our organization with her Keynote Address and inspired our students during lunches and walks around the university campus. One of those students was Robert Skrinyaz, who formulated the questions for this discussion with the help of Board Member and then The Forum Editor, Sumangala Bhattacharya.

Q: What set you on the path to year. Fifty percent of law Health Education & Welfare, becoming a lawyer? What other students do.” now Health and Human vocations did you eliminate Services. I am reasonably along the way? Q: You received your certain I would not have had undergraduate degree from at this opportunity, but for the fact A: I originally went to college Howard University, a that I was a student at Howard with the intent of becoming a historically black university in University. At the time, and to social worker because I thought the political heart of the be quite honest, I was not I could save the world. After nation—how do you think your considering a “career getting to college, I ended up experience there influenced trajectory;” but clearly, the having, two young ladies who your career trajectory? How do impact is there. wanted to go to law school and you think the University’s role become attorneys as and relevance have stayed the Q: In a recent panel discussion roommates. I was persuaded by same since you graduated, or of diverse women lawyers at them, along with some how have they changed? Chapman University Dale E. professors who were lawyers, Fowler School of Law each that I could help more people A: Attending Howard taught speaker independently brought with a law degree. me many things. It taught me a up two specific challenges: (1) degree of confidence and that establishing their authority, Q: Did you receive unexpected as an African American that it whether with partners or support for your decision to go is okay to be confident and not clients, and (2) the importance into law that really surprised have a fear of expressing it. of living their “authentic and energized you? Additionally, without expressly selves” while still adapting to stating, Howard had and and negotiating the “boys’ A: I do not recall any continues to have an club” of many law firms. As unexpected support. expectation that its graduates this is still an issue today, how would and will obtain advanced did you approach these Q: Did you receive friction or degrees. Howard taught me that challenges when you started? resistance that surprised you? while my self-expectations were high, they needed to be A: I did not work for a law firm A: I received resistance that I higher. Living in DC, I had the when I first graduated from law thought to be extremely odd. extraordinary opportunity school. I did not work for a For example, at my going away during my senior year in large firm until January 2000, party, one of my co-workers college to work in the office of at which point, I had been out said to me: “don’t feel bad (ly) the Secretary (Frank Carlucci) of law school 24 years. I began when you flunk out your first of the then Department of my legal career with a steel

28 Fall 2017 Volume 2 company. There were more of a case early than spend the Q: What can the legal gender issues than anything money to litigate. community do to promote else. I was able to make inroads access for those who may not into certain areas where women Q: Diversity and inclusion were need frequent legal had not gone, but there were hallmarks of your goals as representation, as an some areas where, until the day ABA president, described in alternative? Is there a way to I left, I was unable to crack the the executive summary of the leverage the technology to code. I was never allowed to Diversity and Inclusion 360 lower costs, but not sacrifice participate in face to face union Commission. Part of that high standards of client negotiations. I find that it’s initiative outlined how firms advocacy? okay to question, and we can better support diverse should. Not in a way that may attorneys: how can new and A: There are several young be embarrassing to the other soon-to-be attorneys contribute lawyers who are already person such that it appears to to creating and supporting more thinking about this and be a challenge, but in a manner diverse and inclusive developing means by which in which both parties can learn. workplaces? they can provide affordable legal services and still be able Q: You have extensive A: New and soon-to-be- to sustain themselves experience in labor and attorneys can do what I financially. Additionally, there employment law, often recommend most people do— are a few law schools who are defending major corporations engage in a critical self- developing incubators within against claims brought under analysis. First, determine their schools to prepare the Equal Employment whether they possess any students to provide legal Opportunity Commission implicit biases. One tool that services to the underserved. It (EEOC). How do you can be used to make this is my belief that some personally balance respect for determination is to take some consumers are faced with no the high-level aims of that body of the implicit association test other options than the online in promoting non- at www.implicit.harvard.edu. services, but as with anything, discriminatory workplaces, Second, new and soon-to-be- an extreme amount of caution while vigorously advocating attorneys can also participate is required and to the extent for your client’s interests? Is with groups and in activities possible, “live” people are there room for all parties to that are outside of their natural better than machines—for now. improve? affinity groups. Third, when in a situation wherein a slight or Q: So you established a career, A: Many of the claims I handle discriminatory practice is and started garnering do not go through the EEOC. I observed, if it is safe to do so, accomplishments and am fortunate to have clients speak up. Inclusiveness may achievements: when did your who really try to do the right also extend to the consumers of ABA involvement mature into thing. Occasionally, mistakes legal services—the advent of the desire to pursue a are made, and it’s my duty to the “app” and web-based leadership position? The travel, counsel them. I have to also solutions make legal forms, speaking engagements, and say, some employees fill-in-the-blank contracts, and general life disruption are knowingly bring cases that other legal or quasi-legal significant demands— where have absolutely no merit. They services more available to do you feel that your are looking for a quick consumers reluctant or unable appearances have made the settlement with the hopes that to pay for traditional most impact and made the the client would rather get rid representation. sacrifices most worthwhile?

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A: During my term as President On your end, it is important for Q: What do you hope for your of the ABA, I had an you to let your law school legacy? If you could be opportunity to visit more than career counselor know you remembered for one thing, 40 Boys & Girls Clubs around want the envelope pushed. above all: what would that be? the country—talking to those Also, try to connect with Is that answer different for your boys and girls, knowing so alums. One thing I have learned personal and professional many of them, like me never is that there are some alums lives? had an opportunity to know any who have not gone to “top tier” A: That I was able to make a lawyers, letting them know schools, but when they are difference in a positive way they have options. Young recruiting, want students from with respect to how people lawyers and/or law students only top tier schools. I think think and talk about diversity always accompanied me on there is a way to question that. I and inclusion, particularly in these visits. I observed that in would wonder whether these the legal profession, with the most instances, these young recruiters think their degrees understanding that law affects lawyers and law students are worth less now than when everything we do. achieved as much of a benefit the recruiters the new law as did the boys and girls. Many graduates obtained their degree. Q: What part of your unique of them continue to have a I am not speaking spherically and valuable journey should be relationship with the clubs. to Chapman graduates, but in shared, but does not directly Sometimes, one does not know general. I would also point out answer any of the previous what one can be until they see the number of GC’s and leaders questions? it. I learned from my extensive in corporations who have not travels (I visited all 50 states at gone to “top tier” schools. A: What I like to do if I have least once) that almost all Keep in mind: I am not “spare” time. I love to walk, lawyers have a common goal— downplaying the value of any cook, and read (books that do to help people. Lawyers do so school that provides a quality not require a lot of thought). much pro bono work without education and provides its receiving recognition. We are students with the necessary in a profession that requires tools to succeed. My primary service to others. I don’t think I point is: many good and great ever thought about being tired. lawyers graduated from schools It was one of the best that are not in the “top tier”. experiences of my career. Q: If you could leave your Q: When you spoke at the past-self one post-it note of Symposium last autumn, you advice, encouragement, or detailed how many big law warning, (1) what would you firms miss out on talent from say, and (2) when would you middle-tier schools. What can say it? students at these institutions do to assert this talent and make A: Pay close attention to and themselves known? follow the advice I give others to be successful. I would have A: To be perfectly honest, it told myself be more strategic may be somewhat difficult to and search outside of my make yourselves known. You comfort zone. need help. Most of the push comes from within the firms.

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STATEWIDE RESTORATIVE JUSTICE LEGISLATION AND DECLINING TRENDS IN THE U.S. CRIMINAL JUSTICE SYSTEM: WHAT IMPACT, IF ANY? Suneeta H. Israni

The United States has one of the highest youth incarceration rates and arrest rates in the world.[1] [2] National averages show that the cost to keep a youth locked up, $88,000 a year, exceeds the cost the U.S. spends per public school student, $12,296.[3] [4] School districts like Los Angeles Unified School District have aimed to dismantle the school-to-prison pipeline by adopting restorative justice (“RJ”) legislation. This article seeks to understand what impact, if any, RJ legislation has on the juvenile justice system. This article explores a quantitative relationship between RJ legislation and three declining trends (juvenile petition counts, juvenile homicide offenders, and juvenile arrest rates) in 50 U.S. states generally across a five-year period (2008-2012). The results of this inquiry are mixed. While the results are not statistically significant for those given years, textual analysis of the bills, qualitative research, and trendlines forecasting the future indicate otherwise. Trendlines indicate that as more states introduce RJ legislation, the more those states will experience declines in each of those trends. The results inspire a need for more states to explore or experiment with RJ legislation so that in-depth studies by criminologists can more accurately measure the statistical significance of these relationships between RJ legislation and declining trends in the U.S. criminal justice system. Finally, other numerical data shows that an impressive percentage of states that introduced at least one RJ bill exceeded the national averages in each of those declining trends.

I. INTRODUCTION: rates and arrest rates in the Figure 1). Human Rights STATEMENT OF THE world.2 3 It “leads the Watch and the American Civil PROBLEM industrialized world in the Liberties Union estimated that number and percentage of the “U.S. also sends an While the United States children it locks up in juvenile extraordinary number of [hereinafter U.S.] experienced a detention facilities, with over children to adult jails and decline in three areas [petitions 60,000 children in such prisons—more than 95,000 in filed against youths, rates of facilities in 2011.”4 “The 2011…with few opportunities youth offenders in homicide American rate of juvenile for meaningful education or matters, and juvenile arrest incarceration is seven times rehabilitation.”6 rates]1, it still has one of the that of Great Britain, and 18 highest youth incarceration times that of France.”5 (See

1 See Appendix A for graphs of PRISON (The New Press, 2014); NPR (June 4, 2014, 3:19PM ET), declines. Michael Garcia Bochenek, Children http://www.npr.org/2014/06/04/31880 2 NEAL HAZEL, CROSS-NATIONAL Behind Bars: The Global Overuse of 1651/burning-down-the-house- COMPARISON OF YOUTH JUSTICE 60 Detention of Children, HUMAN RIGHTS makes-the-case-against-juvenile- (YJB 2008), WATCH, https://www.hrw.org/world- incarceration [https://perma.cc/796R http://dera.ioe.ac.uk/7996/1/Cross_nat report/2016/children-behind-bars -9EYT].. ional_final.pdf [https://perma.cc/GE8S-VP6C] (last 6 Michael Garcia Bochenek, Children [https://perma.cc/Z6YZ-9WHP]. visited Apr. 24, 2017). Behind Bars: The Global Overuse of 3 RICHARD A. MENDEL, NO PLACE 5 BERNSTEIN, NELL. BURNING DOWN Detention of Children, HUMAN RIGHTS FOR KIDS (2011), THE HOUSE: THE END OF JUVENILE WATCH, https://www.hrw.org/world- https://perma.cc/26XE-RHK2. PRISON (The New Press, 2014); report/2016/children-behind-bars 4 BERNSTEIN, NELL. BURNING DOWN ‘Burning Down the House’ Makes the [https://perma.cc/PF8W-BFJQ] THE HOUSE: THE END OF JUVENILE Case Against Juvenile Incarceration, (last visited Apr. 24, 2017).

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336.0

68.0 69.0 46.8 51.3 33.0 24.9 3.6 18.6 23.1 11.3 0.1 4.1

Italy USA France Japan Finland Sweden Australia Germany Scotland Netherlands New Zealand South Africa England & Wales Figure 1 The cost of imprisoning U.S. Census and Vera Institute per student in every state (see criminals is already exorbitant.7 of Justice) showed how the cost Figure 3 below) .12 These costs The U.S. spends $20 billion per inmate exceeded the cost continue to climb.13 annually on prison expansion.8 $20 billion could provide child 100,000 care to every family that cannot 88,000 afford it, a college education 90,000 for every high school graduate, 80,000 or a living wage to every unemployed youth.9 More 70,000 specifically, national averages 60,000 show the cost to keep a youth locked up exceeds the cost the 50,000 U.S. spends per public school 40,000 student. “It costs, on average, $88,000 a year to keep a youth 30,000 locked up[.]”10 Compare that 20,000 with $12,296—the amount the 12,296 U.S. spends per public school 10,000 student.11 (See Figure 2). 0 The same is true at the Cost to keep a youth locked up Cost per public school student state level. Education and prison data (collected by the Figure 2

7 See William Spelman, The Limited expenditures per pupil in public constant 2014–15 dollars, and the Importance of Prison Expansion, in elementary and secondary schools: Consumer Price Index) The Crime Drop in America 97, 97 Selected years, 1919-20 through 12 Tal Yellin, CNN Money, Educ. v. (Alfred Blumstein & Joel Wallman 2012-13, tbl.236.55 (2015), Prison eds., 2000). https://nces.ed.gov/programs/digest/d costs, http://money.cnn.com/infograp 8 Id. 15/tables/dt15_236.55.asp (based on hic/economy/education-vs-prison- 9 Id. fall enrollment, in constant 2014–15 costs/ [https://perma.cc/26HE-CQUE] 10 BERNSTEIN, supra note 5. dollars, and the Consumer Price (40 states responded). 11 See Inst. of Educ. Sciences, Nat’l Index) [https://perma.cc/48TR- 13 Amelia M. Inman & Millard W. Ctr. for Educ. Stat., Total and current 8JNZ]. (based on fall enrollment, in Ramsey, Jr., Comment, Putting Parole

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rehabilitate themselves and increases the probability that the offender will become a recidivist.”17 To quote John Braithwaite, “individuals would not be repeat offenders if we did not force them into ‘daily interaction’ with other criminals through incarceration.”18 Fortunately, this is a problem to which there is a solution and that solution is restorative justice [hereinafter RJ].19

II. WHAT IS RESTORATIVE JUSTICE?

Defining RJ. The Model Code on Education and Dignity—approved by the American Bar Association— defines RJ as “a theory of justice that emphasizes Figure 3 repairing the harm caused or According to author and kid would grow up to be a revealed by misconduct rather journalist Nell Berstein14, the criminal was being incarcerated 15 than punishment by: most troubling issue is that in a juvenile facility." a. Identifying the “[t]he greatest predictor of Incarceration “deprives the misconduct and adult incarceration and adult offender of the reassurance and attempting to repair the criminality wasn't gang confidence that he [or she] is 16 damage; involvement, wasn't family capable of reform.” This b. Including all people issues, wasn't delinquency itself decreases the individual’s impacted in the process … [t]he greatest predictor that a “self-esteem and motivation to

Back on the Table: An Efficiency 16 Christopher D. Lee, COMMENT: learn new skills in the illegitimate Approach to Georgia's Aging Prison THEY ALL LAUGHED AT labor market"). Population, 1 J. MARSHALL L.J. 239, CHRISTOPHER COLUMBUS WHEN 19 Judy C. Tsui, COMMENT: 242 (2008). HE SAID THE WORLD WAS BREAKING FREE OF THE PRISON 14 Nell Berstein, ROUND: THE NOT-SO-RADICAL PARADIGM: INTEGRATING http://www.nellbernstein.com/ AND REASONABLE NEED FOR A RESTORATIVE JUSTICE [https://perma.cc/W8CU-HLNY ](last RESTORATIVE JUSTICE MODEL TECHNIQUES INTO CHICAGO'S visited Apr. 24, 2017) (Nell Berstein STATUTE, 30 ST. LOUIS U. PUB. L. JUVENILE JUSTICE SYSTEM, 104 J. is a former Soros Justice Media REV. 533. CRIM. L. & CRIMINOLOGY 635 (high Fellow in New York, and winner of a 17 Id. at 533. costs associated with juvenile White House Champion of Change) 18 John Braithwaite, Restorative detention centers may be award. Justice: Assessing Optimistic and circumvented through RJ techniques) 15 BERNSTEIN, supra note 5. Pessimistic Accounts, 25 CRIME & 229. . JUST. 1, 65 (1999) ("Prisoners in jail

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of responding to the restoration of the offender include: victim-offender conflict; and and victim.28 While punitive mediation, community and c. Creating a process that justice focuses on punishing the family group conferencing, promotes healing, wrongs of the past, RJ focuses circle sentencing, and victim reconciliation and the on how to change future impact panels and surrogate rebuilding of behavior.29 This idea of groups.34 These practices have relationships.”20 integrating an offender back benefitted many stakeholders. Put simply, RJ focuses on: into the community through In fact, stakeholders have repairing the harm, involving appropriate discipline while “repeatedly expressed stakeholders, and transforming still providing “peace-of-mind significantly higher satisfaction the community relationship.21 and comfort to victims”30 with the capacity of [RJ] to RJ is not a new notion.22 makes RJ similar to truly repair the harm caused by It was around when humans “therapeutic justice.”31 Like crime, as compared with first began developing therapeutic justice, RJ focuses traditional criminal justice civilizations.23 For example, on "the law's healing procedures.”35 Because RJ can the Navajo people in the U.S. potential."32 Thus, “one can “go deeper and address human and Maori tribe in New view restorative justice as a aspects of reparation, healing, Zealand24 used it as one of balancing of different and relational connection, there their primary forms of justice. considerations: ‘a balance is greater potential for a more 25 Understanding RJ requires a between the therapeutic and profound and lasting positive philosophical shift away from retributive models of justice[,] impact” for stakeholders.36 punitive/retributive justice. 26 a balance between the rights of First, RJ benefits victims. Punitive justice, “the MPC, and offenders and the needs of “Victims emerge from a our traditional justice system victims[, and] a balance restorative justice setting are concerned more with a between the need to rehabilitate feeling ‘less upset about the combination of ‘righting a offenders and the duty to crime, less apprehensive, and wrong’ and punishing the protect the public.’"33 less afraid of re- wicked.”27 The goal of RJ is The benefits of RJ. not punishing the offender but Common examples of RJ

20 MODEL CODE ON EDUCATION AND the Twenty-First Century, 82 OR. L. 31 Teresa W. Carns et al., Therapeutic DIGNITY §3.1.B. (DIGNITY IN REV. 1, 20-21 (2003). Justice in Alaska's Courts, 19 SCHOOLS CAMPAIGN AND AM. BAR 25 Lee, supra note 17. ALASKA L. REV. 1, 2 (2002). ASS’N 2013). 26 Gonzales, supra note 22. 32 Id. 21 Thalia Gonzales, ARTICLE: 27 Jean Hampton, Correcting Harms 33 MARIAN LIEBMANN, RESTORATIVE Keeping Kids in Schools: Restorative Versus Righting Wrongs: The Goal of JUSTICE: HOW IT WORKS 33 (2007). Justice, Punitive Discipline, and the Retribution, 39 UCLA L. REV. 1659, 34 Lee, supra note 17. School to Prison Pipeline, 41 J.L. & 1663 (1992). 35 Mosteller, supra note 26, at 22; see EDUC. 281; see also Marilyn Peterson 28 Lee, supra note 17; but see Michael also Mark S. Umbreit, Restorative Armour et al., Bridges to Life: Wenzel et al., Retributive and Justice Through Victim-Offender Evaluation of an In-Prison Restorative Justice, 32 Law & Hum. Mediation: A Multi-site Assessment, Restorative Justice Intervention, 24 Behav. 375, 376 (2008) (explaining 1 W. Criminology Rev. 1 (1998), MED. & L. 831, 832 (2005) that punishment can play a part in RJ available at (describing the three prongs of RJ as techniques despite it not being the http://goo.gl/85ftRJ [https://perma.cc/ offender accountability victim central focus). YMM7-UTSK ](where a study empowerment, and the active role of 29 Lee, supra note 17. showed victims are far more likely to the community). 30 Katherine Beaty Chiste, The Justice benefit from mediation than a normal 22 Lee, supra note 17. of the Peace in History: Community court process). 23 Id. and Restorative Justice, 68 SASK. L. 36 HOWARD ZEHR, THE LITTLE BOOK 24 Robert P. Mosteller, New REV. 153, 153 (2005). OF RESTORATIVE JUSTICE 22-24 Dimensions in Sentencing Reform in (2002).

34 Fall 2017 Volume 2 victimization.’”37 RJ reduction is not the overarching for a federal RJ statute on environments are also “far goal of restorative justice, Westlaw yields only five more likely to produce sincere researchers have found that one results. In one statute, RJ apologies”38 and full restitution ‘happy side-effect’ of a [well- operates as a buzzword. For payments from offenders (than structured] restorative justice example, the statute defines if ordered by a court)39—a program is a decrease in “school resource officer” as an significant aspect to the recidivism.”44 The idea is that individual who trains students victim’s recovery. 40 RJ also because RJ emphasizes both in RJ.47 Nowhere in the benefits communities. Violent offender accountability and neighboring statutes, however, crimes like murder or hate empowerment, “a returning is RJ defined.48 In a federal crimes can damage offender is more likely to ‘buy- statute that uses the term more communities in a long-lasting in’ to his or her reentry plan, substantively, the substantive way.41 Peacemaking yielding better outcomes.”45 portion only applies to committees that integrate Alaska.49 While another statute restorative practices not only III. WHY EMPIRICAL authorizes the Attorney restore the status quo and RESEARCH ON General to give states grants for produce “tranquility and RESTORATIVE RJ programs, RJ is merely one harmony within a community,” JUSTICE out of a laundry list of but also can address poverty- LEGISLATION? programs for it to get any ridden conflicts such as meaningful attention.50 Other unemployment or lack of basic Lack of RJ Legislation. statutes cited to a case that had necessities. 42 Finally, RJ Despite its age, benefits, and RJ in the case name.51 That practices benefit recidivism popularity, there is currently no case, however, dealt with the rates.43 “While recidivism federal RJ statute.46 A search right to intervene rather than a

37 Lucy Clark Sanders, Restorative multivariate analysis shows that after a corresponding widespread decline Justice: The Attempt To Rehabilitate 24 months of successfully completing in reoffending.”) Criminal Offenders and Victims, 2 diversion, juveniles in the restorative CHARLESTON L. REV. 923, 929 justice program had slightly lower 45 Faye S. Taxman, The Offender and (2008). rates of recidivism."). Note, however, Reentry: Supporting Active 38 Id. that effectiveness may vary Participation in Reintegration, 68- 39 Umbreit, supra note 36, at 97; see depending on a multitude of factors, SEP FED. PROB 31,33 (2004). also CHRISTA PELIKAN & THOMAS including gender and a previous TRENCZEK, VICTIM OFFENDER criminal record. 46 Sandra Pavelka, Restorative MEDIATION AND RESTORATIVE 40 Sherman, supra note 39. Juvenile Justice Legislation and JUSTICE: THE EUROPEAN LANDSCAPE, 41 See Declan Roche, Restorative Policy: A National Assessment, 4 IN HANDBOOK OF RESTORATIVE Justice and the Regulatory State in INT'L J. RESTORATIVE JUST. 100, 100- JUSTICE 63, 78 (Dennis Sullivan & South African Townships, 42 BRIT. J. 01 (2008). Larry Tifft eds. 2006); see also CRIMINOLOGY 514, 515 (2002). Michael Wenzel et al., Retributive 42 Id. 47 and Restorative Justice, 32 LAW & 43 Lee, supra note 17. 42 U.S.C.A. § 3796dd-8 (West). 48 HUM. BEHAV. 375, 377 (2008) 44 Gwen Robinson & Joanna Id. 49 (explaining that RJ techniques tend to Shapland, Reducing Recidivism: A CONSOLIDATED decrease instances of reoffending at a Task for Restorative Justice?, 48 APPROPRIATIONS ACT, 2004, 108 higher rate than court processes); see BRIT. J. CRIMINOLOGY 337, 339-40 P.L. 199, 118 Stat. 3 *, 108 P.L. 199, also Nancy Rodriguez, Restorative (2008); see also Wenzel, supra note 2004 Enacted H.R. 2673, 108 Enacted Justice at Work: Examining the 41 (noting that despite reduced H.R. 2673 50 Impact of Restorative Justice recidivism being an important 42 U.S.C.A. § 3796ee (West). Resolutions on Juvenile Recidivism, argument for RJ, “complicating 51 53 CRIME & DELINQ. 355, 371 (2007) factors make it nearly impossible to 18 U.S.C.A. § 3771 (West); U.S. ("When comparing juveniles in a accurately predict whether Const. amend. VIII. restorative justice program with widespread implementation of RJ juveniles in a comparison group, techniques would necessarily result in

35 Fall 2017 Volume 2 discussion on whether RJ RJ legislation in many ways Justice Department sponsors programs should be reminds one of the vicious conferences, seminars, and mandated.52 cycle of poverty. To expand RJ teleconferences on the topic.61 On the state side, the legislation, more empirical Thus, RJ is not an abstract impression is misleading. If research is needed; but to concept. While RJ has its someone looks for statutes or conduct empirical research, critics, “world-wide acceptance codes that merely incorporate more RJ legislation is needed. of …[RJ programs] . . . suggest the term RJ or terms associated “Without a more systemic that these criticisms are more with restorative practices (e.g., implementation of restorative likely to influence how victim-offender mediation, justice programs, there is not restorative justice is community conferencing, enough data to support” further incorporated into conventional circles, neighborhood empirical research.56 Hence, it criminal justice responses accountability boards and is no surprise that a major rather than whether they are reparative boards), then one barrier to expanding RJ incorporated.” 62 will find that a majority of legislation is “the lack of While RJ programs do not states have incorporated RJ in empirical research to prove its require legislation, legislation their statutes or codes.53 If objective outcomes.”57 can be a preferable option. someone looks for statutes or Why Study RJ First, legislation can positively codes that encompasses all Legislation. So why should promote RJ as a priority and approaches to RJ, such as the researchers care to conduct imperative.63 Section 1170 of balanced and restorative justice further empirical research on California’s Penal Code is approach, then one will find RJ legislation? Because RJ is a living proof of this idea. In that 20 states articulate this “growing international 2010, California Senator approach in their statutes or movement within the fields of Leeland Yee introduced a bill codes. If an individual is only juvenile and criminal justice.”58 authorizing prisoners—who interested in the RJ approach, RJ is accepted and practiced committed an offense as a however, then one will find that throughout the United States. juvenile—to ask courts to re- even now, in 2017, only 11 New York, Vermont, and Ohio examine their sentences after states “emulate restorative establish it as their underlying serving 15 years for that justice principles in statute or philosophy, guiding principle, specific offense.64 The first code reference.”54 Thus, while or cornerstone for their justice sentence of the bill’s text many statutes are identified by systems.59 Minnesota maintains incorporates the term terms often associated with an office to develop RJ “restorative justice” as a means restorative practices, many do programs throughout their through which public safety is not convey authentic state.60 It is a common topic of accomplished.65 The binding ‘restorativeness.’” 55 To make discussion at professional power of this law forces matters complicated, expanding conferences and the federal California courts to re-assess

5218 U.S.C.A. § 3771 (West). 54 Id. at 7. REGENT U.L. REV. 53, 53 (1998). 55 Id. at 12. 53 Sandra Pavelka, Restorative Justice 56 Vi D. Gabbay, Justifying 59 Id. at 91. in the States: An Analysis of Restorative Justice: A Theoretical 60 Id. Statutory Legislation and Policy Justificaiton for the Use of 61 Id. at 91. (Center on Juvenile and Criminal Restorative Justice Practices, 2005 J. 62 Id. at 55. Justice 2016), DISP. RESOL. 349, 369 (2005). 63 Lee, supra note 17, at 537. http://www.cjcj.org/uploads/cjcj/docu 64 CAL. PENAL CODE § 1170 (Deering ments/jpj_restorative_justice_in_the_ 57 Peterson, supra note 22, at 849; 2017). states.pdf [https://perma.cc/9XQX- Mosteller, supra note 26, at 22. 65 Id. AXER] 58 Daniel W. Van Ness, Article: . Legislation for Restorative Justice, 10

36 Fall 2017 Volume 2 whether an inmate is fit for a thereby, serving as an impetus incentives for members of the reduced sentence. for further in-depth quantitative community to use RJ programs. Second, programs are and qualitative research. The “Authorizing legislation would restorative to the extent they data can also serve as criterion ensure that police, prosecutors, reflect RJ principles and for stakeholders to consider judges and correctional values.66 Legislation can help when evaluating the merits of workers interested in using to articulate guiding principles future RJ policy. restorative programs could do for operating and evaluating RJ Third, legislation helps to so without fear of subsequent programs.67 For example, remove legal or systemic rulings that they lacked family group conferences can barriers to RJ programs. Prior authority.”75 In Indiana, judges be conducted from a to the Minnesota Community were unsure whether they could perspective concerned with the Correctional Services Act, mandate victim-offender offender or the victim or the Minnesota did not have pre- mediation in sentencing orders community.68 Often this is a trial diversionary alternatives.73 and were thus reluctant to do result of state funding programs The act required every county so.76 To resolve this qualm, attaching restrictions when prosecutor to establish a pre- legislators introduced a bill that issuing funds for those trial diversion program for explicitly included victim- programs.69 Guiding principles offenders to address this void. offender mediation in the and monitoring mechanisms Hence, further research on RJ definition of “community increase the likelihood that legislation can also help to cure correction programs.” One of programs identified as market failures like the one that the bills discovered in this restorative will truly be that used to exist in Minnesota. research also had a similar restorative. 70 In Minnesota, the Fourth, legislation can effect. In Colorado, officers, Community Justice Services ensure a smooth or at least judges, and schools had the Act guides state officials by similar transition. Traditionally, discretion to divert cases from requiring them to “develop RJ programs have developed the criminal system and refer outcome measurements that independent of legislative offenders to RJ programs. would enable assessment of mandate while our Beverly Title (a member of the whether the goals of the act … conventional criminal justice statewide restorative justice were actually being system has been governed by council) said “[b]efore, people accomplished.”71 Guiding legislation.74 If RJ is looking to were doing RJ, but sometimes principles such as this one can replace, or at the very least felt like they were operating on create opportunities through supplement, the criminal justice the fringe of legitimacy. The which compliance can be system, then the hope is that new law establishes RJ as part enforced.72 Guiding principles utilizing a similar approach will of the Children’s Code. It can also help provide allow for a more normal legitimizes this as a diversion.” uniformity. Finally, monitoring transition. Title believes bills like CO H mechanisms allow for Fifth, legislation clarifies 1117 are the reason courts will extensive data to be collected; roles and subsequently creates

66 Van Ness, supra note 60, at 65. 69 Marty Price, Personalizing Crime, 73 MINN. STAT. § 388.24(2) (1997). 67 Id. 7 DISP. RESOL. MAG. 8, 9 (2000). 68 Martin Wright, The Development 70 Van Ness, supra note 60, at 65. 74 Van Ness, supra note 60, at 56. of Restorative Justice, Paper 75 Id. at 58. Presented to International Conference 71 MINN. STAT. § 388.24(2) (1997). 76 IND. CODE ANN. § 11-12-8- on Restorative Justice for Juveniles, 1(5) (Michie 1992). conducted at Leuven, Belgium (May 72 Van Ness, supra note 60, at 66. 12-14, 1997).

37 Fall 2017 Volume 2 likely make more referrals to unconstitutional.82 Given that fully developed[;] particularly RJ programs.77 their immaturity diminishes in the area of the prefrontal Finally, RJ legislation can their culpability and given their cortex, which is critical to reduce high costs and heightened capacity for reform, higher order cognitive backlogged court dockets.78 the Court found the death functioning and impulse “There is a general consensus penalty as a disproportionate control. When a juvenile is that RJ practices are ‘less sentence for juveniles.83 Justice confined either to the juvenile costly and require less time,’ Kennedy specifically reasoned or adult corrections system, overall.” 79 "The “juveniles are not trusted with regardless of sentence, the implementation of restorative the privileges and institution is responsible for justice has resulted in responsibilities of an adult … addressing those significant and real changes: their irresponsible conduct is neurobiological-based fewer young offenders now not as morally reprehensible as deficiencies.”87 The amicus appear in courts, fewer young that of an adult.”84 Having brief heightens John offenders are now placed in barred the use of capital Braithwaite’s words that [welfare shelters] [,]and fewer punishment for juveniles, the “individuals would not be young offenders are now Roper Court left the sentence repeat offenders if we did not sentenced to custody. This all, of life without parole as the force them into ‘daily of course, had to result in harshest sentence available for interaction’ with other considerable cost [and time] juveniles. criminals through savings."80 In Graham v. Florida, the incarceration” for juveniles.88 Why Study RJ Supreme Court banned the use Having barred the use of life Legislation Specific to of life without parole for non- without parole for non- 85 Juveniles. Why should homicide juvenile offenders. homicide juvenile offenders, researchers care about studying In arriving at this holding, the the Graham Court left life RJ legislation specific to Court relied on an amicus without parole as the harshest juveniles? Recent Supreme briefs that argued “medical sentence available for juvenile Court jurisprudence calls on us science confirms both the need homicide offenders. In Miller v. to recognize the distinction for categorical distinctions in Alabama, the Court then held between adult and juvenile the treatment of juvenile vs. that mandatory life without 86 offenders.81 In Roper v. adult offenders.” “Studies parole sentences for juvenile Simmons, the Court held capital conclusively establish that the homicide offenders violated the punishment of minors was brain of an adolescent is not

77 Joshua Wachtel, New Colorado 79 Zvi D. Gabbay, Justifying Restorative Justice, 42 BRIT. J. Law Authorizes Restorative Justice Restorative Justice: A Theoretical CRIMINOLOGY 596, 605 (2002). Conferences for Adjudicated Youth, Justificaiton for the Use of 81 Tsui, supra note 20, at 644. INT’L INST. FOR RESTORATIVE Restorative Justice Practices, 2005 J. 82 Roper v. Simmons, 543 U.S. 551, JUSTICE (May 21, 2008), DISP. RESOL. 349, 369 (2005) (study 578-79 (2005). http://www.iirp.edu/eforum- showed that the cost of a case through 83 Id. at 571. archive/4398-new-colorado-law- a RJ program was $80 versus $ 84 Id. at 561. authorizes-restorative-justice- 2649.50 through the court system); T. 85 Graham v. Florida, 560 U.S. 48, 74 conferences-for-adjudicated-youth Bennett Burkemper et al., Restorative (2010). [http://perma.cc/MJ6K-LEZ5]. Justice in Missouri's Juvenile 86 See Brief of Council of Juvenile 78 Edward J. Imwinkelried, The Right System, 63 J. Mo. B. 128, 129 (2007) Correctional Administrators et al. as to "Plead Out" Issues and Block the (noting that Genesse County in New Amici Curiae in Support of Admission of Prejudicial Evidence: York estimates that it saved more Petitioners at 4, Graham v. Florida, The Differential Treatment of Civil than $ 4 million using a restorative 130 S. Ct. 2011 (2010) (No. 08- Litigants and the Criminal Accused system). 7412). as a Denial of Equal Protection, 40 80 Allison Morris, Critiquing the 87 Id. EMORY L. J. 341, 381 (1991). Critics: A Brief Response to Critics of 88 Braithwaite, supra note 19.

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Eighth Amendment.89 It is communities, RJ professional pipeline. It is important to decisions like these that add developments, and meetings clarify that the purpose of this more fuel to the growing RJ with RJ coordinators to article is not to analyze the movement and decisions like implement RJ practices in my costs, feasibility, and these that lead senators like classroom. Not one student was availability of such legislation. California Senator Leeland Yee suspended or expelled for This research is targeted to to introduce the bill he did. willful defiance during my answer the following research Acknowledgement of tenure because of this initiative. question(s): Researcher’s Personal My observations of the Bias. Aside from the fact this initiative’s success, however, 1. What relationship, if any, topic is non-existent in the are limited to the educational did states that introduced current and available literature, realm. After transitioning to the RJ legislation have with pursuing this topic was also legal field, I sought to states that experienced a motivated by personal bias. My understand whether initiatives decline in juvenile petitions time as an educator in Los like LAUSD’s School Climate in the United States from Angeles around 2013 was an Bill of Rights are actually 2008 to 2013? exciting year. After months of successful at dismantling the 2. What relationship, if any, community organizing, the school-to-prison pipeline. I also did states that introduced Brothers, Sons, Selves wonder whether more RJ legislation have with Coalition made civil rights community organizing states that experienced a history when its efforts campaigns should center decline in juvenile successfully led the Los around pushing state-wide homicide offenders in the Angeles Unified School restorative justice legislation United States from 2008 to District [hereinafter LAUSD] forward, given that is why I 2014? to adopt the School Climate pursued law—to see the impact 3. What relationship, if any, Bill of Rights90—a bill aimed of my efforts reach beyond the did states that introduced at dismantling the school-to- four walls of my classroom and RJ legislation have with prison pipeline by outlawing reach students across the state. states that experienced a suspensions or expulsions for a The answer to this question decline in juvenile arrest willful defiance (48900(k)) depends on what impact, if any, rates in the United States offense.9192 As an alternative to state-wide RJ legislation has on from 2008 to 2012? these suspensions or the juvenile justice system. 4. How did states that expulsions, the bill mandated introduced RJ legislation all schools develop and IV. INTRODUCTION TO compare with states that did implement RJ by 2020.93 As a THE RESEARCH not introduce RJ legislation former K-12 public school when examining the teacher in Los Angeles, I This article seeks to explore national average decline for witnessed firsthand the a mere quantitative relationship each of these trends? successful implementation of between RJ legislation and 5. What do future trendlines this initiative. I participated in three declining trends that exist forecast about the impact numerous RJ learning within the “school-to-prison” RJ legislation will have on

89 Miller v. Alabama, 567 U.S. 460, lt/files/2013%20SD%20Policy%20an (Aug. 19, 2014), 463 (2012). d%20SCBR%20Resolution%20FINA http://www.thestrategycenter.org/blog 90 Monica Garcia, 2013 School L.pdf [https://perma.cc/4VXL- /2014/08/19/equal-protection-plan- Discipline Policy and School Climate E882]. timeline [https://perma.cc/V7V8- Bill of Rights, DIGNITY IN SCHOOLS 91 Manuel Criollo, Equal Protection N847]. (2013), Plan Timeline, THE 92 DIGNITY, supra NOTE 90, at 3. www.dignityinschools.org/sites/defau LAB./COMMUNITY STRATEGY CTR. 93 Id.

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the three aforementioned are intentionally excluded from Texas, and Washington. (See trends? this inquiry for the sake of figure 4) Methodology. This article consistency. The databases, the While statistical analysis surveys RJ legislation, juvenile declining trends, and the time revealed that the relationship petition counts, juvenile frames are selected based on was of moderate strength with homicide offenders, and the sake of consistency and to an overall result of being non- juvenile arrest rates in 50 U.S. collect a large volume of data significant, textual analysis of states generally across a five- efficiently in a relatively short the RJ bills explains a more year period (2008-2012). This time frame (approximately common-sense link between article relies on five national three months).94 these bills and the decline in databases to collect data. The petition counts. For example, in first two databases track V. FINDINGS AND 2011, Colorado enacted a bill restorative justices bills from DISCUSSION which among other things the criminal, civil, and encourages “each school education contexts while the RJ Legislation and district in the state and the state third, fourth and fifth databases Juveniles in Court Results. charter school institute to track juvenile petition, juvenile Between 2008 and 2013, the implement restorative justice homicide offender, and juvenile following 10 states introduced practices for use in disciplinary 95 arrest. Any states with bills, at least one, if not more, programs.” North High petitions, homicide incidences, restorative justice bills: School is an example of a and arrests that are either (1) Arizona, Colorado, Florida, school in Denver, Colorado outside of the respective year Hawaii, Indiana, Montana, that implemented RJ practices ranges; or (2) simply do not New Jersey, New Mexico, for use in disciplinary have sufficient or available data programs.96 North High School

RJ Legisla+on Introduced (2008-2013)

7 6 6

5 4 4 4 4 3 3 2 2 2 1 1 1 1 0

Texas Arizona Florida Hawaii Indiana Colorado Montana New Jersey New Mexico Washington Figure 2

94 See Appendix B for more on 95 2011 Bill Text CO H.B. 1032(2)(6). methodology. 96 Gonzales, supra note 22, at 321.

40 Fall 2017 Volume 2 had been identified as “high- RJ Legislation and Hawaii also introduced a bill need, with some of the Juvenile Homicide allowing courts to dispose of a district’s largest numbers of Offender Results. Between juvenile’s case by referring suspensions, tickets, and 2008 and 2014, the following them to a RJ program where 97 100 arrests.” Since the program’s nine states introduced at least the juvenile admits guilt. development and one, if not more, restorative Finally, Hawaii introduced a implementation, the school justice bills: Arizona, bill requiring family courts to conducted over 830 formal and California, Hawaii, Minnesota, order the adjudicated minor (or 100 informal restorative Montana, New Jersey, South his parents) to pay restitution to 101 interventions. The result? Carolina, Texas, and the victim. While bills like Referrals to law enforcement Washington. (See figure 5) these use restorative justice as a 98 decreased by 70%. One can While statistical analysis means to discipline offenders then understand the decrease in revealed that the relationship once they’ve entered the petition counts. In 2012, was of moderate strength with juvenile justice system, these Washington enacted WA H an overall result of being non- bills allow for powerful, 1775. The bill required significant, textual analysis of emotional human dialogue to prosecutors to divert the case the RJ bills explains a more occur and provide the offender rather than file a complaint if common-sense link between a second chance all while still any juvenile committed a these bills and the decline in holding the juvenile and the misdemeanor or gross juvenile homicide offender juvenile’s parents accountable. misdemeanor, and it was his or rates. Hawaii is particularly Bills like these make it easy to her first violation. Again, one illustrative. In 2013, Hawaii see why a reduction in can see how bills like this can introduced a bill allowing recidivism rates is a happy yield reductions in petition juvenile offenders and their “side effect” of RJ legislation counts. family to meet with the victim and why there would be a and victim’s supporters.99 RJ Legisla+on Introduced (2008-2014) 8 7 7

5 4 4 4 3 3 2 2 2 1 1 1 1

0 Arizona California Hawaii Minnesota Montana New Jersey South Texas Washington Figure 3 Carolina

97 Id. at 324. 2010. Executive Summary, Denver 100 2013 Bill Tracking HI H.B. 182. 98 Myriam L. Baker, DPS Restorative Pub. Sch., 1, 334 (2010). 101 2013 Bill Tracking HI H.B. 239. Justice Project: Year Four 2009- 99 2013 Bill Tracking HI S.B. 61.

41 Fall 2017 Volume 2 decline in juveniles committing introduced a bill that would failed both times. And of all homicide. “$270,000 is appropriated from states that introduced RJ RJ Legislation and the general fund to the sixth legislation, New Mexico saw Juvenile Arrest Rate judicial district court for the second to lowest decline in Results. Between 2008 and expenditure in fiscal year 2009 arrest rates. New Mexico’s 2012, the following seven to provide juvenile and adult example lends credibility to the states introduced at least one, if offender restorative justice idea that RJ legislation not more, restorative justice services in the sixth judicial appropriating funds would bills: Arizona, California, district, including mediation, allow for implementation of RJ Colorado, Minnesota, New community conferencing and initiatives that would result in a 103 Jersey, New Mexico, and justice circles.” A fiscal vital and genuine difference Texas.102 (See Figure 6) impact report stated the such as fewer young offenders being arrested and appearing in RJ Legisla+on Introduced (2008-2012) court; thereby reducing the high costs and backlogged 7 court dockets that plague our 6 6 system. Overall Interpretation 5 4 of the Results. Textual 4 3 3 analysis aside, there is even 3 more hope for RJ legislation 2 2 activists. Trendlines forecasting 1 1 the future indicate that as more 1 RJ legislation is introduced, the 0 count in delinquency petitions Arizona California Colorado Minnesota New Jersey New Texas will decline. (See Figure 7) Mexico Figure 4 Another trendline shows While statistical analysis consequences of not enacting how as more RJ legislation is revealed that the relationship the bill would mean the 6th introduced, the count of was weak with an overall result Judicial District will not be juvenile homicide offenders of being non-significant, able to provide restorative will decline. (See Figure 8) textual analysis of the RJ bills justice services.104 This bill explains a more common-sense link between these bills and the RJ Legislation v. Decline in Delinquency decline in juvenile arrest rates. Petitions Colorado’s bill not only explains why one would see a 50000 decline in petition counts but 40000 arrest rates as well. And of all 30000 states that introduced bills, 20000 Colorado saw the largest 10000 decline in arrest rates. 0 Interestingly enough, studying 0 2 4 6 8 10 12 14 the converse also allows us to see the impact of RJ legislation. Petition Decline Bills Introduced 08-13 Linear (Petition Decline ) In 2008 and 2009, New Mexico Figure 5

102 Data on file with author. 103 2008 Bill Tracking NM S.B. 254. 104 Id.

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introduced at least one RJ bill. RJ Legislation v. Decline in Arrest Rates 43% of states that introduced at least one RJ bill also exceeded 7 the U.S. average decline in 6 juvenile arrest rates. If there is 5 any lesson to take away from 4 these results, it is that 3 introducing more statewide RJ 2 legislation can only help the 1 current state. 0 0 2 4 6 8 10 VI. CONCLUSIONS AND RJ Bills Introduced from 08-12 RECOMMENDATIONS

Decline in Arrest Rate from 08-12 Summary. The results of Figure 8 Linear (Decline in Arrest Rate from 08-12) this inquiry are mixed. While The same result for decline proud of and for stakeholders the results are not statistically in arrest rates. (See Figure 9) to consider. Not only does the significant for those given RJ legislation activists can data show that states that years, textual analysis of the have more confidence in these introduce RJ legislation saw a bills, qualitative research, and trendlines, than in the statistical reduction in their delinquency trendlines forecasting the future analyses supra given how petitions, juvenile homicide indicate otherwise. Trendlines sensitive the P-Values were to offenders, and arrest rates but indicate that as more states the sample size. The largest also shows how each of these introduce RJ legislation, the sample in this research contains states exceeded the U.S. more those states will ten states. Hence, these averages with impressive experience declines in each of trendlines and logic figures. 78% of states that those trends. The results inspire demonstrate how even one introduced at least one RJ bill a need for more states to more restorative justice bill can exceeded the U.S. average of explore or experiment with RJ make a statistical relationship decline in juvenile homicide legislation so that in-depth more significant. offenders. 50% of the states studies by criminologists can There are additional that exceeded the U.S. average more accurately measure the observations from this data for rate of decline in delinquency statistical significance of these RJ legislation activists to be petitions were states that relationships between RJ legislation and declining trends RJ Legislation and Juvenile Homicide in the U.S. criminal justice Offenders system. Finally, other numerical data shows that an 60 impressive percentage of states 40 that introduced at least one RJ 20 bill exceeded the national averages in each of those 0 declining trends. 0 2 4 6 8 10 12 Limitations. These results Decline in Juvenile Homicide Offenders are a byproduct of certain Bills Introduced 08-14 limitations and biases that are Linear (Decline in Juvenile Homicide Offenders) necessary to account for. The Figure 9 first limitation is this study did

43 Fall 2017 Volume 2 not contain a simple random year range for one of these at the very least, will serve as a sample but rather convenience inquiries is seven years, which catalyst for future dialogue on sampling. This inquiry only is a relatively short time span the role of RJ legislation in explores those states that record for a growing movement. It is dismantling the school-to- and report sufficient data to the important to note, however, prison pipeline. The data from national databases. While there that states with bills, petitions, this research should also serve are practical purposes for homicide incidences, or arrests as a catalyst for future research choosing convenience that are either (1) outside of the on RJ legislation. There will be sampling, such as my limited respective year ranges; or (2) a great need to research how time frame of three months, it simply do not have sufficient or legislation introduced impacts still acts as a bias because it available data are intentionally declining trends beyond the excludes states that could alter excluded from this inquiry for time frame (2008-2014) in this the results for the better. An the sake of consistency as well. article. Researchers should also implication of convenience Perhaps the most obvious consider studying how RJ sampling is voluntary response limitation is that this inquiry is policy introduced in the local bias. Here, only data from conducted by a law student and arena impacts declining trends those law enforcement not a criminologist or especially given how many agencies, states, or jurisdictions statistician. Hence, this study education decisions are made at that volunteer to report data are does not adopt truly the local level. Following that included. Not only does scientific/sophisticated reasoning, another interesting convenience sampling and measurement and analysis area to explore (once more data voluntary response bias restrict protocols because the research is available of course) is what sample size, but the data may had to comply with deadlines impact, if any, school discipline not be reflective of states for within a short time frame bills have on dismantling the which data is either not making those methods school-to-prison pipeline. recorded or reported for that unfeasible. Finally, even a Finally, for the more equipped year range. For example, in the criminologist or statistician researcher, a natural and inquiries that exclude either who employs truly scientific or inevitable area for study is the California, Colorado, or sophisticated protocols can still impact of RJ legislation on Minnesota, the data from other miss data because these recidivism. states could not possibly reflect databases are ultimately I hope that as a result of the much success states like maintained by human beings. reading this paper more California, Colorado, or Bills that are introduced by a students, criminologists, policy Minnesota experience with the state legislature may not always analysts, or statisticians are RJ movement. Another form of be accounted for purely due to inspired to pursue more in- sampling bias present in this human error/measurement error depth quantitative research on study is nonresponse bias. on the database end. Overall, whether RJ legislation actually Because timing of data the examples of limitations and does dismantle the school-to- collection is limited to less than biases listed above are by no prison pipeline. I also hope three months, it severely limits means exhaustive but are state legislatures continue to the number of states that may mentioned because they are introduce and experiment with eventually report data three- identified as having the most RJ legislation because months, six-months, or even a profound impact on the results. forecasting trendlines show that year from now. Implications. The textual introducing RJ legislation can For the same reason above, analysis of the bills, forecasting only help to dismantle the this inquiry is severely limited trendlines, and other numerical school-to-prison pipeline crisis. by the time frame for which data observations present data is collected. The highest impressive findings that I hope,

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VII. APPENDIX A: THE methods involved for each legislation accounted for THREE DECLINING survey. restorative justice bills in the TRENDS RJ Legislation and criminal, civil, and educational Juveniles in Court. This contexts. This article examined Between 2008 and 2013, article first surveyed restorative the juvenile delinquency the estimated count for juvenile justice legislation and the petitions for two reasons: (1) delinquency petitions reduced decline in juvenile delinquency the delinquency petition is by 292,131.105 (See Figure 10) petitions in 50 states across a viewed as the formal entry point for juvenile Overall Decline in U.S. Juvenile Delinquency prosecution108; and (2) due to Petitions the relatively short time frame (approximately three months) 900000 of this project. This portion of 800000 the article explored the 700000 following research question(s): 600000 1. What relationship, if 500000 any, did states that 400000 introduced RJ 300000 legislation have with 200000 states that experienced 100000 a decline in juvenile 0 2008 2009 2010 2011 2012 2013 petitions in the United Figure 10 States from 2008 to Between 2006 and 2014, six-year period (2008-2013). 2013? the estimated number of The restorative justice murders involving a juvenile offender fell 39%.106 (See Figure 11) Between 2008 and 2012, the national total for juvenile arrests reduced by 4.2%.107 (See Figure 12)

VIII. APPENDIX B: METHODOLOGY

This section provides context for what each survey was about and data collection Figure 11

105 Off. of Juv. Just. and Delinq. 107 Puzzanchera, C. and Kang, W., https://www.bjs.gov/content/largechar Prevention, Offending by Juveniles, Easy Access to FBI Arrest Statistics t.cfm [https://perma.cc/2X4H- OFF. OF JUV. JUST. AND DELINQ. 1994-2012, OFF. OF JUV. JUST. AND AY3G]; Bureau of Just. Stat. , The PREVENTION (May 25, 2016), DELINQ. PREVENTION (2014), Justice System Flowchart, OFF. OF http://www.ojjdp.gov/ojstatbb/offend https://www.ojjdp.gov/ojstatbb/ezaucr JUST. PROGRAMS (last visited Apr. 24, ers/qa03105.asp?qaDate=2014 / [https://perma.cc/JR2Z-DLJH]. 2017) [https://perma.cc/HP5U-U3LC]. 108 Bureau of Just. Stat., Criminal https://www.bjs.gov/content/justsys.c 106 Id. Justice System Flowchart, OFF. OF fm#juvenile [https://perma.cc/V7V8- JUST. PROGRAMS (Apr. 24, 2017), N847].

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returned results, I set aside any Total Percent Decline in Total Juvenile Figure 12 bills introduced 2014 onwards Arrest and then individually recorded, for each state, the number of bills either enacted/adopted, 16 introduced/pending, or not 14 introduced at all in an excel 12 spreadsheet. The search 10 8 protocol for the second 6 database was mostly the same 4 as the first database except for 2 two filters: (1) the topic (here 0 restorative justice was not a 2008 2009 2010 2011 2012 pre-populated topic field and To collect data on RJ Justice and Delinquency thus, this database required a legislation, I utilized two Lexis Prevention’s Easy Access to natural language search); and Nexis State Net-powered State and County Juvenile 111 (2) state (here I selected “All” databases, developed by the Court Case Counts database. after a preliminary search National Conference of State The primary reasons for using revealed very few states had Legislatures, to track the status these databases allowed me to introduced RJ education bills to of RJ bills from 2008 to 2013 collect a large volume of data begin with). A search within in each state.109 The first efficiently in a short period of the State and County Juvenile database, the JUVENILE time. Court Case Counts database JUSTICE BILLS TRACKING Under the first database, a consisted of filtering by (1) DATABASE (also developed search consisted of filtering by year and (2) state. Once the by the John D. and Catherine T. (1) the topic (here restorative database returned results, I MacArthur Foundation), justice was already a pre- individually recorded, for each tracked the status of RJ bills in populated field to be selected); state (and accounting for all the civil and criminal justice (2) state; (3) status (here I counties), the decline in context. The second database, selected “All” to account for delinquency petitions by Educational Bill Tracking even those bills which had subtracting the petition counts Database, tracked the status of failed, been vetoed, or were in 2013 from the petition RJ bills in the educational pending); and (4) year (here counts in 2008 in an excel context.110 To collect data on again, I selected “All” to spreadsheet.112 juvenile delinquency petitions, account for bills from 2008- I utilized the Office of Juvenile 2013). Once the database

109 Both databases had the capacity to http://www.ncsl.org/research/educatio 112 The following states were not track bills to present (2017) but n/education-bill-tracking- included because either the case tracking was constrained to 2012 to database.aspx counts were not available for a given align with arrest rate data and due to [https://perma.cc/5XGD-MRNQ]. state or the data available was time considerations; Nat’l Conf. of 111 Hockenberry, S., Smith, J., and insufficient to remain consistent with State Legislatures, Juvenile Justice Kang, W., Easy Access to State and other states: California, Kentucky, Bills Tracking Database, NAT’L County Juvenile Court Case Counts, Louisiana, Maine, Mississippi, New CONF. OF STATE LEGISLATURES (Apr. 2013, OFF. OF JUV. JUST. AND Hampshire, North Dakota, Virginia, 24, 2017), [https://perma.cc/G3ZF- DELINQ. PREVENTION (2015), and Minnesota. States that missed a NUEB]. https://www.ojjdp.gov/ojstatbb/ezaco/ year of data were, however, included 110 Nat’l Conf. of State Legislatures, [https://perma.cc/8XRX-82FM]. because the data from the remaining Education Bill Tracking Database, years was sufficient to remain NAT’L CONF. OF STATE consistent with other states: Illinois, LEGISLATURES (Apr. 24, 2017),

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Once all data was recorded, due to the relatively short time state; (4) sex (here I selected I sorted the data into two frame (approximately three both males and females to variables. Variable X was a list months) of this project. This account for all sexes provided); of every state that introduced at portion of the article explored (5) race (here I selected White, least one RJ bill between 2008 the following research Black, American Indian/ and 2013. Variable Y was a list question(s): Alaskan native, and Asian/Nat. of the declines in petition 1. What relationship, if Hawaiian/Pacific Island to counts for each state that any, did states that account for all races provided). introduced at least one RJ bill introduced RJ Once the database returned between 2008 and 2013. To legislation have with results, I individually recorded, measure the strength and states that saw a for each state, the decline in direction between the two decline in juvenile homicides by juvenile variables, I utilized the Pearson homicide offenders in offenders by subtracting the Correlation Coefficient. After the United States from incidences in 2014 from the calculating the R value and 2008 to 2014? incidences in 2008 in an excel value of R2, I then calculated Collecting data on RJ spreadsheet.114 the P value for the relationship legislation involved the same Once all data was to assess the statistical method mentioned previously, recorded, I sorted the data into significance of the correlation. except the filtering process two variables. Variable X was a The results of the data are accounted for bills introduced list of every state that revealed and analyzed in from 2008-2014. To collect introduced at least one RJ bill section four of this article. data on juvenile homicide between 2008 and 2014. RJ Legislation and offenders, I utilized the Office Variable Y was a list of the Juvenile Homicide of Juvenile Justice and declines in homicide by Offenders. This article also Delinquency Prevention’s Easy juvenile offenders for each surveyed restorative justice Access to the FBI’s state that introduced at least legislation and the decline in Supplementary Homicide one RJ bill between 2008 and juvenile homicide offenders in Reports: 1980-2014 2014. To measure the 113 50 states across a seven-year database. Using this database relationship and statistical period (2008-2014). The author allowed me to collect a large significance of the two chose to also examine juvenile volume of data efficiently in a variables, I followed the same homicide offenders for two short period of time. A search method mentioned previously. reasons: (1) homicide is within the FBI’s The results of the data are undoubtedly one of the most Supplementary Homicide revealed and analyzed in serious criminal offenses and if Reports database consisted of section four of this article. restorative justice legislation filtering by (1) known RJ Legislation and may be impactful on one of the offenders; (2) year of incident Juvenile Arrest Rates. most severe offenses in our (here I selected 2008-2014); (2) Finally, this article surveyed world, then it is certainly an age of offender (here I selected restorative justice legislation area of great interest; and (2) ranges 0-11 and 12-17); (3) and juvenile arrest rates in 50

Michigan, Nevada, New York, and of Columbia missed a year of data, it Wyoming. 114 The following states were not was, nonetheless, included because 113 Easy Access FBI’s Supplementary included because either the case the data from the remaining years was Homicide Reports: 1980-2014, OFF. counts were not available for a given sufficient to remain consistent with OF JUV. JUST. AND DELINQ. state or the data available was other states. PREVENTION (May 25, 2016), insufficient to remain consistent with https://www.ojjdp.gov/ojstatbb/ezashr other states: Alabama, Florida, and / [https://perma.cc/EPZ6-L34P]. North Dakota. Although the District

47 Fall 2017 Volume 2 states across a four-year period population (here I selected revealed the following results (2008-2012). This study “juvenile” as that is naturally for the states above: included juvenile arrest rates the focus of this study); and (5) for two reasons: (1) it is viewed time period (here I selected R Score -0.5378 as the entry point to the 2006-2012). Once the database Strength Moderate 115 criminal justice system ; and returned results, I set aside any Direction Negative (2) due to the relatively short arrest rates from 2007 or R2 Value 0.2892 time frame (approximately previous years and then P-Value at 0.108841 three months) of this project. individually recorded, for each 0.10 This study explored the state, the reduction in arrest Significance following research questions: rates by subtracting the arrest Level 1. What relationship, if rate in 2012 from the arrest rate Overall result Not any, did states that in 2008 in an excel spreadsheet. significant introduced RJ Once all data was recorded, legislation have with I sorted the data into two N 10 states that experienced variables. Variable X was a list a decline in juvenile of every state that introduced at RJ Legislation and arrest rates in the least one RJ bill between 2008 Juvenile Homicide United States from and 2012. Variable Y was a list Offender Results. A Pearson 2008 to 2012? of the declines in juvenile Correlation Coefficient Collecting data on RJ arrests for every state that Calculation revealed the legislation involved the same introduced at least one RJ bill following results for the states method mentioned previously, between 2008 and 2012. The above: except the filtering process same method mentioned accounted for bills introduced previously was utilized to R Score -0.5515 from 2008-2012. To collect measure the relationship and Strength Moderate data on juvenile arrest rates, I statistical significance of the Direction Negative utilized the Office of Juvenile two variables. The results of R2 Value 0.3042 Justice and Delinquency the data are revealed and P-Value at 0.123739 Prevention’s Easy Access to analyzed in the subsequent 0.10 FBI Arrest Statistics: 1994- section of this article. Significance 2012 database.116 Using this Level database as well allowed me to IX. APPENDIX C: Overall result Not collect a large volume of data PEARSON significant efficiently in a short period of CORRELATION N 9 time. A search within the FBI COEFFICIENT Arrest database consisted of CALCULATIONS RJ Legislation and filtering by (1) state; (2) county Juvenile Arrest Rate (here I selected “All counties” RJ Legislation and Results. A Pearson to account for arrest rates in the Juveniles in Court Results. Correlation Coefficient entire state); (3) data display A Pearson Correlation Calculation revealed the option (here, I selected Coefficient Calculation following results for the states “percentage” for more above: convenient calculation); (4)

115 Bureau, supra note 108. DELINQ. PREVENTION (2014), 116 Puzzanchera, C. and Kang, W., https://www.ojjdp.gov/ojstatbb/ezaucr Easy Access to FBI Arrest Statistics /asp/ucr_display.asp 1994-2012, OFF. OF JUV. JUST. AND [https://perma.cc/ZN3K-C2ZT].

48 Fall 2017 Volume 2

R Score 0.3629 Strength Weak Direction Positive

R2 Value 0.1317 P-Value at 0.423675 0.10 Significance Level

Overall result Not significant N 7

49 Fall 2017 Volume 2

GENDER VERIFICATION POLICIES IN ELITE SPORTS Diana Isyanova

There have been decades of unsuccessful attempts to develop a fair and adequate gender verification test. The initial test, which used to be accomplished by visual observation, has evolved into a highly sophisticated molecular-level evaluation. Numerous elite-sport athletes exemplify the struggles the testing evolution has caused them. Furthermore, our deeper understanding of the human anatomy reveals an array of intricacies and variations that might nudge us to not only relax the current rigid definitions of “male” and “female,” but also to forgo the efforts of confining it into a single description. Furthermore, while the major sport authorities have been relentlessly chasing this elusive end of establishing the policy, the need for having the test has possibly become moot.

I. INTRODUCTION The pursuit of a fair and sex/gender verification precise gender verification test policies, as well as different In all Olympic sports, aside has been a challenge for at least aspects and challenges of the from the co-ed equestrian the last eighty years and policies since its first competitions, male athletes remains an elusive goal. The implementation. Based on hold an athletic advantage over long history of unsuccessful those facts, one logical female athletes based on the policies and of the many proposal may be to abolish the records of every Olympic devastated athletes who testing altogether. sport.1 It remains true today.2 “failed” the tests begs the At the outset, it is important To avoid unfair gains, major question: “Is it even possible to to differentiate the terms “sex” sports organizations achieve a sound sex/gender and “gender.” “Sex” refers to implemented gender separation verification test?” One possible the cluster of physically and for athletes, as well as weight answer is that perhaps it is not medically verifiable biological categories in sports where the even worth trying to chase such indicators with which people variance is great enough to be a an elusive goal because anti- are born.5 In this regard, the factor.3 However, while a doping procedures eliminate majority of the human reliable scale objectively the danger of male imposters population can be categorized resolves the equity question in among female athletes and at birth as either male or weight, gender is still a highly because defining “a female” for female. “Gender,” however, is subjective and complex purposes of testing is neither a complex combination of combination of sex, cognitive possible nor natural. physical, emotional, and self-perception,4 and social This article lays out the socially constructed behaviors conventions. reasons behind establishing that a given society

1 COLLINS M. TUCKER, The Science /default- category/world-records and Management of Sex Verification source/mediadocuments/2016- [https://perma.cc/34VK-CKN5], in Sport, 21 S. AFR. J. SPORTS MED. olympic-trials-media-center/2016- (last visited Nov15,2016). 148 (2009). olympic-trials-qualifying- 3 COLLINS supra note 1 at148. 2 Women’s for 100m freestyle time times.pdf?sfvrsn=2 4 Id. during the 2016 Olympic trials was [https://perma.cc/4X2C-7XTC]. 5 Gender, Women and Health, 56.49 sec, where men’s time was The men’s world records in running WORLD HEALTH ORGANIZATION 50.69 sec.; for 100m freestyle, the are: 100m- 9.58; 200m – 19.19; 400 (Aug. 2015), women’s time was 2:02.39 but meters – 43.03; Women’s records http://apps.who.int/gender/whatisgen men’s 1:51.89. 2016 Olympic in the same categories are: 100m- der/en/ [https://perma.cc/3ZGW- Trials Time Standards, U.S.A. 10.49; 200m – 21.34; 400 meters – DAUF].. SWIMMING. 47.60. World Records. IAAF, https://www.usaswimming.org/docs https://www.iaaf.org/records/by-

50 Fall 2017 Volume 2 characterizes as, and attributes the meaning defined by the the 1936 Berlin Olympics, to, a culturally defined gender,6 American Psychological Nazis allegedly forced Dora most often using the Association (APA), which is Ratjen to disguise himself in dichotomous terms “female” or “an umbrella term for persons order to compete as a female “male” and “feminine” or whose gender identity, gender athlete; and he successfully “masculine.”7 expression, or behavior does misled his competitors.12 Because the initial purpose not conform to that typically Although some question the of sex testing was to discover associated with the sex to accuracy of this story, the men acting as women which they were assigned at general public’s conviction of imposters, it was labeled “sex- birth.”11 Finally, the discussion unfair advantage has not been verification.”8 However, the below involves mostly elite disproved.13 During the 1960 implementation of those sports and elite athletes. Olympic Games in Rome, the procedures has created Authors have variably defined Soviet sisters, Tamara and Irina circumstances and conditions “elite.” For the purposes of this Press, were practically that suggest an unfair article “elite” is defined as unbeatable in track and field.14 biological advantage in some national or international level Their extraordinary joint female athletes. Thus, the competitors, Olympians, and collection of twenty-six world process became known as professional or semi- records led their competitors to “gender-verification,” and as professional world-class question their legitimacy as the name suggests, it is athletes. female athletes,15 and although intended to verify conformity no specific facts ignited the to gender.9 To encompass both II. REASONING controversy, none were sex- and gender-verification BEHIND ESTABLISHING presented to disprove it.16 The procedures, some have AND EFFECTIVENESS sisters’ retirement within just described such testing as OF SEX/GENDER weeks of International “sex/gender verification VERIFICATION Association of Athletics procedure.”10 Labels for POLICIES Federation’s (IAAF) methods addressed in this announcement of their article conform with the The intention behind mandatory gender verification original label used by each establishing such gender/sex tests, added fuel to the organization discussed and, if verification policies was to allegations and has kept the used collectively, refer to both ensure fairness in sports by controversy alive.17 Today, processes as sex/gender eliminating unfair advantages. fears of gender-unfairness in verification procedure. In Concerns regarding advantage worldwide professional and addition, the term by pretense in competitions are amateur sports remain, “transgender” is used following not utterly unfounded. During alongside a saga of crippled

6 Id. [https://perma.cc/5KLT-A366], 14 PIEPER, supra note 8, at 1. 7 Id. (last visited Dec 16,2016). 15 Id. 8 LINDSAY PARKS PIEPER, Sex 12 “[T]he story though a fascinating 16 Olympic Gender Drama-the Press Testing: Gender Policing in Women’s one but may not be accurate.” Stefan Sisters, TRANSGRIOT (Nov. 9, Sports 3 (2016). Berg, How Dora the Man Competed 2011), 9 Id. in the Woman’s High Jump, SPIEGEL http://transgriot.blogspot.com/2011/ 10 Id. ONLINE (Sept. 15, 2009), 11/olympic-gender- drama-press- 11 Transgender People, Gender http://www.spiegel.de/international/ sisters.html Identity and Gender Expression, germany/1936-berlin-olympics-how- [https://perma.cc/GY9R-YMXA]. AMERICAN PSYCHOLOGICAL dora-the-man-competed-in-the- 17 Id. ASSOCIATION, woman-s-high-jump-a-649104.html http://www.apa.org/topics/lgbt/tran [https://perma.cc/X6LA-LY63]. sgender.aspx 13 Id.

51 Fall 2017 Volume 2 and inadequate testing only to the women’s sports. collateral damage resulting procedures. Sex verification of male from testing policy Up to the present time, the athletes is, apparently, implementation has led to the majority of athletes who have “unnecessary and irrational.”22 victimization of many gifted “failed” sex-verification tests To narrow that notion further, athletes who simply “failed” have had at least one of various non-Western women have been the test. forms of chromosomal the primary suspects of sex conditions, including androgen verification policies.23 This III. A PERSPECTIVE OF insensitivity,18 XY raises the question of whether THE U.S. CULTURE mosaicism,19 5-α-reductase- the so-called fairness pursued TOWARD FEMININITY deficiency,20 or gonadal by the major sport IN SPORTS dysgenesis.21 To date, none of organizations is, in any way, those alone clearly defines, actually fair. Second, through To understand our society’s medically or legally, the sex of their long history of gender- inconsistent treatment of an athlete, and the lack of a policing, neither of the two sportswomen, it is worthwhile legally precise sex-verification major sport organizations, the to look at the various policy is even more International Olympic components that have shaped pronounced in the case of Committee (“IOC”) and the it. Susan Cahn, the author of transgender athletes. Two International Association of “Coming On Strong: Gender specifying traits have surfaced Athletics Federation (“IAAF”), and Sexuality in Women’s through the implementation of has yet ever detected even a Sport,” states that sports in the various sports organizations' single male athlete Western world have been imperfect sex/verification intentionally masquerading as a predominantly designed for and policies. First, surprisingly, female.24 Instead, the fairness concerns seem to apply saddening multitude of

18 “Androgen Insensitivity Syndrome taller average, this chromosomal organs before birth.” 5-Alpha- is a condition that affects sexual change typically causes no Reductase Deficiency, U.S. development before birth and unusual physical features. Most NATIONAL LIBRARY OF MEDICINE: during puberty. People with this males with 47,XYY syndrome GENETIC HOME REFERENCE, condition are genetically male, have normal sexual development https://ghr.nlm.nih.gov/condition/ with one X chromosome and one and are able to father children.” 5-alpha-reductase-deficiency Y chromosome in each cell. 47, XYY Syndrome, U.S. [https://perma.cc/HFS6-JTD7], Because their bodies are unable to NATIONAL LIBRARY OF MEDICINE: (last visited Dec. 16, 2016). respond to certain male sex GENETIC HOME REFERENCE, 21 Gonadal Dysgenesis is “defective hormones (called androgens), they https://ghr.nlm.nih.gov/condition/ development of the gonads, which may have mostly female external 47xyy-syndrome may be accompanied by sex characteristics or sighs of both [https://perma.cc/LNK8-5WQM], abnormalities of the sex male and female sexual (last visited Dec. 16, 2016). chromosomes.” Gonadal development.” Androgen 20 5-Alpha-Reductase deficiency is a Dysgenesis, THE FREE Insensitivity Syndrome, U.S. condition that affects male sexual DICTIONARY: DYSGENESIS, NATIONAL LIBRARY OF MEDICINE: development before birth and http://medical- GENETIC HOME REFERENCE, during puberty. People with this dictionary.thefreedictionary.com/d https://ghr.nlm.nih.gov/condition/ condition are genetically male, ysgenesis androgen-insensitivity-syndrome with one X and Y chromosome in [https://perma.cc/QE8X-L9MR], [https://perma.cc/4NP9-MS7Y], each cell and they have male (last visited Dec. 16, 2016). (last visited Dec. 16, 2016). gonads (testes). Their bodies 22 PIEPER, supra note 8, at 184. 19 Also called 47, XYY. This however, do not produce enough 23 Id. at 185-86. syndrome is “characterized by an of a hormone called 24 PIEPER, supra note 8 at 2.; extra copy of the Y chromosome dihydrotestosterone (DHT)…a http://jrs.sagepub.com/content/101/8/ in each of a male’s cells. Although shortage of this hormone disrupts 395 [https://perma.cc/RH3Z-8FGK], males with this condition maybe the formation of the external sex p. (footnote 11-12).

52 Fall 2017 Volume 2 played by men.25 She suggests swimming team, questioning IV. IOC AND IAAF’S that many attribute whether the femininity was an SEX/GENDER TESTS characteristics such as obstacle preventing the team AND EXAMPLES OF “aggression, competitiveness, from maintaining the number ATHLETES WHO strength, speed, and powers, one world position, remarked “FAILED” THEM and team work” to that the swimmers on the team masculinity.26 She states that “swim like girls” connotes his A. Mid-1960s – 1990. traditionally for “many men disassociation of femininity Chromosomal Testing. sports have provided an arena with success in sports.29 Although the subject may in which to cultivate Leaders in the sports industry still seem relatively new to the masculinity and achieve have also shied away from general public, the IOC felt the manhood.”27 When women encouraging female athletes’ need to establish gender- began claiming their places in participation.30 When Jacques verification policy decades ago. the world of athletics in the Rogge, a former IOC president, In 1966, the first and most early 1900s, however, some was highlighting the simplistic and invasive gender wondered whether female achievements of his verification tests were athletics would turn women predecessor Juan Antonio conducted by visual into masculine facsimiles of the Samaranch, he noted that in observation and gynecological ‘opposite’ sex or, instead, 1980, the IOC remained a examination.35 In 1968, the “feminize” sports and erode the highly conservative IOC mandated that Olympians boundaries between male and organization, a “men-only undergo a different test, less female spheres of activity.28 club.”31 Among Olympian physically intrusive test, Barr Eight decades later, such athletes, only eighteen percent Test.36 A chromosomal analysis questions have not been put to were females.32 Among IOC based on meaningful rest. Therefore, it is only members, there were none.33 distinctions between the natural that in order for female- Despite the challenges, chromosomes of males and athletes to enter predominantly women’s successful collective females, discovered by Murray male sports and change societal efforts overcame the barriers Barr.37 Ironically, lab-tested perspectives regarding women that prevented females’ gender-verification, which was in sports, it would require time, participation in public sports.34 meant to circumvent patience, and, unfortunately, The current challenge is to advantageous unfairness, was humiliation. ensure that every woman from itself flawed and unfair.38 Its In the 1950s the femininity any continent on the planet has first victim was Ewa was still a hot topic, and some a right to participate in her Klobukowska, a Polish sprinter perceived it as a weakness for sport and to express herself as athlete39 who in 1964, won female athletes. Ione Muir, the an athlete. Olympic gold and bronze manager of the U.S. women's medals in the 4x100 meter

25 SUSAN K. CAHN, COMING ON 29 Muir, “As I See It,” Amateur 37 Murray Barr & Ewart G. Bertram, STRONG GENDER AND SEXUALITY IN Athlete (February 1956) 22 (note 46, A Morphological Distinction TWENTIETH-CENTURY WOMEN’S p. 349). between Neurons of the Male and SPORT 3 (1994). 30 CAHN, supra note 25, at 11. Female, and the Behavior of the 26 Id. 31 PIEPER, supra note 8, at 137. Nucleolar Satellite during 27 Id. 32 Id. Accelerated Nucleoprotein 28 Dudley Sargent, Are Athletics 33 Id. Synthesis. NATURE, Apr. 30, 1949, Making Girls Masculine, in 34 CAHN, supra note 25, at 1. at 676. WOMEN AND SPORTS IN THE 35 Robert Ritchie, Intersex and 38 PIEPER, supra note 8, at 120. UNITED STATES: A DOCUMENTARY Olympic Games,101 J ROYAL SOC’Y 39 Id. at 121. READER 56 (Jean O’Reilly & Susan MED. 395-99 (2008). K. Cahn, ed., 2007). 36 Id.

53 Fall 2017 Volume 2 relay and 100-meter sprint, identifying the presence and usually exhibit the external respectively.40 Klobukowska is number of X and Y characteristics of females and believed to have had a rare chromosomes and then are raised as women. However, genetic abnormality called categorizing an athlete as male their XY chromosomes mean chromosomal mosaicism and or female on that basis.45 Yet that they do not have uteruses so possessed, as the IAAF the disqualification of athletes and cannot birth children, the phrased it, “one chromosome who had lived lifelong as men dichotomous gender definition too many.”41 Such continued.46 Similar to its of only two sexes means their abnormalities were predecessor, this chromosomal chromosomes, not their lives unaccounted for by the criteria test failed women based on and experiences, define them as of the Barr Test; thus, based on various chromosomal males.50 test findings, the IOC abnormalities such as 5-α- The news devastated the unceremoniously stripped reductase-deficiency, gonadal athlete but even more created in Klobukowska of her medals dysgenesis, and androgen her a sense of helplessness and banned her from future insensitivity syndrome (AIS).47 upon being forced to excuse competition.42 Aside from the The last of those was herself from the competition traumatic disappointment of exemplified by Maria under the pretense of false exile from future events, she Martinez-Patino (Martinez- injury.51 The societal tortures endured public humiliation, Patino), a Spanish hurdler who continued when she refused to degradation, and subsequent publicly challenged her sex- skip the Track and Field stigmatization. A possible but verification testing. She Spanish National Games, and unsatisfying silver lining of “failed” the test in 1985 at the as a result, lost her sports Klobukowska’s case was that University Games in Kobe, scholarship, was banished from the IOC decided to keep the Japan, and so was disqualified the athletes' residence and saw future test results from future events.48 The her running records confidential.43 results of IOC testing had expunged.52 Nevertheless, in As DNA testing emerged, declared that Martinez-Patino the true Olympian spirit, she the Barr test was replaced by has 46 chromosomes, but with fought back publicly53 and may polymerase chain reaction one X chromosome and one Y have been the tipping point that (PCR) analysis, another chromosome, classifying her, at persuaded the IOC to abolish promising but far from the least on the genetic level, as such humiliating ideal testing method,44 which male.49 This is precisely the disqualifications solely based purported to distinguish males danger of chromosomal testing on lab tests and subsequently from females by accurately on women with AIS who

40 Guy Adams, Tarnished Gold: Some 443–60 (Helen Jefferson Lenskyj & Female Athletes. NATURE, Aug. of the ‘Great’ Olympics Cheats. Stephen Wagg 2012). 2000. INDEPENDENT. 44 Ritchie, supra note 35. 48 Schultz, supra note 43, at 449. http://www.independent.co.uk/sport 45 Schultz, supra note 43, at 447. 49 Id. /olympics/tarnished-gold-some-of- 46 Ritchie, supra note 35. 50 Schultz, supra note 43, at 446-47. the-great-olympics-cheats- 47 Although females with AIS who 51 PIEPER, supra note 8 at 135; 142 7869830.html possess the “extra chromosome” (She described the experience as [https://perma.cc/PNN9-RGMH], will physiologically appear as a rape. “I’m sure it’s the same sense (last visited 2012). woman and have phenotype typical of incredible shame and violation. 41 Id. to a woman, they do not develop The only difference is that, in my 42 Ritchie, supra note 35. the strength and musculature of a case, the whole world was 43 Schultz Jaime, Disciplining Sex: male that is attributable to the watching”). 'Gender Verification' Policies and testosterone hormones 253 Louis J. 52 Id. at 135-36. Women's Sports, in THE PALGRAVE Elsas, Gender Verification of 53 Schultz, supra note 43 at 445. HANDBOOK OF OLYMPIC STUDIES

54 Fall 2017 Volume 2 make changes to its gender- criteria for the IOC became must have passed before the verification policy.54 when the sex-reassignment has athlete is eligible to compete62 taken place: if an athlete has and reserves a right to “take B. 1990 – 2015. undergone the sex appropriate measures” if an Abandonment of Mandatory reassignment prior to his or her athlete’s sex is questioned.63 Testing Does Not Mean puberty, he or she is Needless to say, many other Giving It Up Altogether. acknowledged as of that sport organizations followed Following advice from assigned sex.60 However, the the IOC’s lead. Although also experts, the IAAF officially assignment process became a well-established and abandoned sex verification in little more intricate when the influential, the IAAF relied on 1991,55 and by 1996, “virtually athlete had undergone the the IOC’s policies for guidance all major U.S. medical transgender process after in creating its own policy on societies” had declared their puberty. Eligibility depended gender verification.64 preference to abolish the on the athlete meeting the Consequently, the IAAF’s 2006 Olympic Committee's gender- following conditions: gender verification policy verification procedures.56 Then, 1) Surgical anatomical closely echoes the IOC’s.65 the IOC officially suspended its changes must have been Aside from outlining its testing policy in 1999,57 and, in completed, including external requirements, the IAAF the Millennial Games of 2000 genitalia changes and document also explicitly in Sydney, made an even more gonadectomy; 2) legal specifies for track and field radical decision to abstain from recognition of assigned sex competitors the chromosomal gender testing of female must be conferred by conditions under which no athletes altogether. That policy appropriate official authorities; advantage over a fellow shift, however, was a one-time and 3) hormonal therapy competitor exists and are thus free pass that did not last appropriate for the assigned sex allowable: (1) androgen long.58 Before the Olympic must be administered in a insensitivity syndrome, Games in Athens in 2004, the verifiable manner and for a whether complete or almost IOC adopted a new policy that period sufficient to minimize complete; (2) gonadal allowed transgender-athletes to gender-related advantages in dysgenesis; and (3) Turner’s compete in the Games under sport competitions.61 syndrome.66 A list of some the sex with which they Moreover, the IOC also conditions that award slight identified.59 The distinguishing agreed that at least two years advantage but are still deemed

54 Anna Peterson, But She Doesn't approves-consensus-with-regard-to- 65 Id. (1) “If sex change operations as Run Like A Girl . . . The Ethic of athletes-who-have-changed-sex well as appropriate hormone Fair Play and the Flexibility of the [https://perma.cc/MA4X-GWNN], replacement therapy are performed Binary Conception of Sex,19 Tul. J. (last visited Dec 16, 2016). before puberty, then the athlete is Int'l & Comp. L. 315 (2010). 60 Id. allowed to compete as a female. 2) 55 IAAF Policy on Gender 61 Id. If sex change and hormone therapy Verification 2006, INTERNATIONAL 62 Id. is done after puberty, then the ASSOCIATION OF ATHLETICS 63 Id. athlete has to wait two years after FEDERATIONS (2006). 64 IAAF Regulation Governing gonadectomy before a physical and 56 Elsas, supra note 47, at 253. Eligibility of Athletes Who Have endocrinological evaluation is 57 Id. Undergone Sex reassignment to conducted. The crux of the matter is 58 Id. (explains that the suspension of Compete in Women’s Competitions, that the ‘female’ athlete should not the policy was limited to the games IAAF. https://www.iaaf.org/about- be enjoying the benefits of the in Sydney). iaaf/documents/medical natural testosterone predominance 59 IOC Approves Consensus with [https://perma.cc/UXP8-EVZ7], usually present in a male.”) 66 Regard to Athletes Who Have (last visited Dec 16, 2016). Id. Changed Sex, IOC. https://www.olympic.org/news/ioc-

55 Fall 2017 Volume 2 acceptable by the IAAF include “physically and mentally back winning a silver medal at (1) congenital adrenal totally broken.”74 The world- the 2012 London Olympics hyperplasia; (2) androgen class champion slipped into and, later, a gold medal at the producing tumors; (3) depression.75 Rio 2016 Olympics, both in the anovulatory androgen excess.67 Caster Semenya, an women’s 800-meters.80 (Years Similarly to the IOC, the IAAF eighteen-year-old track and later, as a result of relaxed the mandatory testing field athlete from South Africa, disqualification of Mariya but reserved the right to ask found herself in a similar Savinova, the gold medalist at athletes to be medically situation at the 2009 World the 2012 London Olympics in evaluated if the athlete’s gender Athletics Championship in the 800-meter race, Semenya’s is under “suspicion” or has Berlin where she won a gold silver was upgraded to gold been “challenged.”68 medal.76 Her case was making her a double Olympic An athlete’s gender can still especially delicate for several champion.)81 However, be tested, as evident in 2006 at reasons. First, she was young, Semenya’s naturally high the Asian Games, the second only 18 years old when she levels of testosterone spurred largest multi-discipline, entered. Second, she is an the next generation of testing.82 international athletic African female, thus has a body In April 2011, the struggle competition which is organized type deemed atypical by to achieve advantage-free by the Olympic Council of Western society and which has competition continued. This Asia (OCA).69 There, Santhi led to an “utter disregard for time, excess levels of Soundarajan earned a silver her humanity” (emphasis androgens became the main medal in the women’s 800- added).77 The author of “Caster suspect of the unfair advantage meter race.70 After a thirty- Semenya: Twenty-First scare.83 In the preface of its minute examination, the IAAF Century ‘Hottentot Venus’?” hyperandrogenism regulations, doctors let Soundarajan go71 draws parallels between the IAAF states, “The but left her clueless as to the Europeans’ unceremonious difference in athletic results. To her dismay and fascination with African performance between males shock, she, along with the rest women’s physiques in the early and females is known to be of the world, learned of her test 1800s and the agitated media predominantly due to higher results from the evening and public attention drawn by levels of androgenic hormones news.72 She had failed.73 She Semenya’s frame.78 She was in males resulting in increased was then stripped of her silver directed to undergo gender strength and muscle medal and publicly humiliated, testing before she could return development.”84 That which she said made her feel, to competing.79 Semenya came conclusion was a result of a

67 Id. 77 Carina Ray, Caster Semenya: THEGUARDIAN.COM: CASTER 68Id. Twenty-First Century ‘Hottentot SEMENYA (Feb. 2017, 07:58PM), 69 Olympic Council of Asia Venus’? 489 NEW AFRICAN (2009) + https://www.theguardian.com/spor http://www.ocasia.org/Index.aspx 78 Id. t/2017/feb/10/caster-semenya- [https://perma.cc/7Y3H-TRAU], (last 79 Jeré Longman, Understanding the given-london-2012-gold-after- visited Dec 16, 2016). Controversy Over Caster rival-is-stripped-title-mariya- 70 PIEPER, supra note 8 at 179. Semenya, N. Y. TIMES: RIO 2016 savinova-farnosova. 71 Id. (Aug. 18, 2016), [https://perma.cc/D6Q9-LUK4] 72 Id. https://www.nytimes.com/2016/08 81 Id. 73 Id. /20/sports/caster-semenya-800- 82 Longman, supra note 79. 74 Id. meters.html. 83 PIEPER, supra note 8, at 182. 75 Id. [https://perma.cc/KJ32-QQEM] 84 IAAF regulations 2011. Preface. 76 Id. at 181. 80 Caster Semenya Given London Page 1 [https://perma.cc/CR6Z- 2012 Gold Medal After Rival is ZKSG]. Stripped of the Title,

56 Fall 2017 Volume 2 series of discussions sponsored experienced “unexpected” performance and were collectively by IOC and virilization91 (characteristics unnecessary for their health, IAAF85 during which invited associated with androgens) at yet they returned to experts in sports and medicine puberty, whereas a male competition as females one worked together to produce newborn expresses traits due to year after surgery.98 adequate guidelines;86 both androgen exposure at birth.92 A struggle to establish a organizations adopted similar Furthermore, they displayed sensible gender verification policies encapsulating the “strong motivation and high policy continued, and so did the notion of “advantageous excess tolerance to intensive daily contests by the “failed” androgens.”87 At the 2012 training, which made them athletes. In 2014, a 19-year-old London Olympics, four elite good candidates for elite sports athlete from India publicly athletes were subsequently competition.”93 Nonetheless, challenged the validity of the disqualified for the athletes had never exhibited IAAF’s hyperandrogenism hyperandrogenism and were “male sex behavior,”94 all came regulations.99 Dutee Chand recommended to undergo “from rural or mountainous won several medals, including hormonal therapy if they regions of developing gold, in the women’s 200- wished to continue their sport countries,” and their tests meter sprint and 400-meter careers.88 confirmed that at least three of sprint relay at national junior However, major differences them, and very possibly the athletic events, Asian did exist between those fourth, shared a kinship.95 Championships, and World athletes’ physiques and that of Those cases were very rare. Youth Championships.100 Then, the usual female athlete. First The diagnosis of one of them the Athletic Federation of India and most observable, each was having had no known (AFI), an IAAF’s member described as “tall, slim, precedent,96 and since all four Federation for India, muscular woman with a male desired to remain female and disqualified her from 2014 bone morphotype, no breast continue their careers in elite Commonwealth Games in development, clitoromegaly sports, they chose to follow the Glasgow after her test results (larger than a typical clitoris), medical experts' advice and revealed that her “male partial or complete labial undergo “partial clitoridectomy hormones levels were too fusion, and inguinal/intralabial with bilateral gonadectomy, high.”101 Supported by the testes.”89 Second, the athletes, followed by a differed Sport Authority of India (SAI), who were then ages 18, 20, 20, feminizing vaginoplasty and Dutee appealed the decision in and 21, were all amenorrheic estrogen replacement.”97 Those the Court of Arbitration for and had never had a menstrual procedures almost definitely Sports (CAS), an independent period.90 However, they had all will decrease the athletes’ authority established to resolve

85 PIEPER, supra note 8 at 181. %20female%20athletes.pdf 95 Id. 86 Id. [https://perma.cc/9Z3C-KLR9]. 96 Id. at 1057. 87 Id. at 182. 90 Id. at 1056. 97 Id. 88 Id. at 183. 91 Id. 98 Id. 89 Patrick Fènichel et.al., Molecular 92 Virilization, U.S. NATIONAL 99 Dutee Chand v. Athletic Federation Diagnosis of 5-α -Reductase LIBRARY OF MEDICINE: GENETIC of India (AFI) & The International Deficiency in 4 Elite Young Female HOME REFERENCE Ass’n of Athletics Federations Athletes Trough Hormonal https://medlineplus.gov/ency/article (IAAF), CAS 2014/A/3759, Interim Screening for /002339.htm (last visited Dec 17, Arbitral Award at 2 (2014) Hyperandrogenism,1055 THE 2016) [https://perma.cc/B4GA- [https://perma.cc/MB8D-E2DF]. ENDOCRINE SOCIETY (June 2013), J9JF]. 100 Id. http://www.bennington.edu/sites/de 93 Fènichel et.al., supra note 89 at 101Id. at 5. fault/files/sources/docs/Sherman_B 1056. etsy_Molecular%20diagnosis%20- 94 Id.

57 Fall 2017 Volume 2 sport-related disputes.102 She In case the evidence is not 2.1 The athlete has declared fought to invalidate the provided or insufficient in that her gender identity is hyperandrogenism regulations CAS’ opinion, the regulations female. The declaration cannot on the grounds that: will be declared void.107 be changed, for sporting (a) they discriminate Furthermore, during the period, purposes, for a minimum of unlawfully against female Ms. Dutee is eligible to four years. athletes who possess a participate in national and 2.2 The athlete must particular natural physical international level sport demonstrate that her total characteristic; (b) they are events.108 testosterone level in serum has based on flawed factual In November 2015, the IOC been below 10 nmol/L for at assumption about the released a revised policy of its least 12 months prior to her relationship between “Sex Reassignment and first competition (with the testosterone and athletic Hyperandrogenism Policies.”109 requirement for any longer performance; (c) they are In response to the interim period to be based on a disproportionate to any award, it urged other confidential case-by-case legitimate objective; and (d) International Federations and evaluation, considering they are unauthorized form or Olympic Committees to submit whether or not 12 months is a doping control.103 supportive evidence and sufficient length of time to arguments to sustain the minimize any advantage in On July 2015, after hearing Hyperandrogenism Regulations women’s competition). arguments on both sides, the in the name of fairness.110 The 2.3 The athlete’s total CAS had decided that the policy proposed that as an testosterone level in serum IAAF failed to substantiate the alternative option for those must remain below 10 nmol/L link between deemed to be ineligible to through the period of desired hyperandrogenism and compete as females, the eligibility to compete in the significant advantageous athletes should compete as female category. athletic performance.104 The males.111 A key change 2.4 Compliance with these Panel suspended the regulation included in that policy related conditions may be monitored for a two-year period.105 to the transgender athletes— by testing. In the event of non- During this window, the IAAF the IOC abolished its surgical compliance, the athlete’s has an opportunity to submit requirement,112 so that any such eligibility for female evidence that shows that “the restrictions do not limit those competition will be suspended quantitative relationship who had transitioned from for 12 months. 114 between enhanced testosterone female to male.113 For males levels and improved athletic transitioning to females, V. THE HURDLES performance in however, the rule is as follows: FOR TRANSGENDER hyperandrogenic athletes.”106 ATHLETES IN VARIOUS

102 History of the CAS: Origins, 107 Id. http://www.triathlon.org/uploads/d COURT OF ARBITRATION FOR 108 Nihal Koshie, Dutee Chand Wins ocs/6.b_2015.11_IOC_consensus_ SPORT, http://www.tas- the Right to Compete, EXPRESS meeting_on_sex_reassignment_an cas.org/en/general- SPORTS (July 29, 2015), d_hyperandrogenism-ENG.pdf information/history-of-the-cas.html http://indianexpress.com/article/sp [https://perma.cc/E52F-W3TX]. (last visited Dec 17, 2016) orts/sport-others/sprinter-dutee- 110 Id. at 3. [https://perma.cc/2QKB-C3VN] chand-wins-right-to-compete/ 111 Id. 103 Interim Arbitral Award, supra note 109 IOC Consensus Meeting on Sex 112 Id. at 2. 98 at 2. Reassignment and 113 Id. 104 Id. at 158. Hyperandrogenism Nov 2015, 114 Id. at 2-3. 105 Id. INTERNATIONAL OLYMPIC 106 Id. COMMITTEE,

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SPORTS UNDERLINE said, “You can’t tell me what I play in a professional tennis THE COMPLEXITY OF can or cannot do – I’m a tournament. For that, an author GENDER/SEX TESTING woman and if [I] want to play for BBC neatly bestowed upon in the U.S. Open as a woman Dr. Richards the title of A. Tennis. I’m going to do it.”123 “Tennis’s reluctant transgender Perhaps one of the most Dr. Richards sued the pioneer.”129 well-known transgender United States Tennis athletes is Dr. Renee Richards. Association (USTA) seeking an B. Golf. Dr. Richards was born Richard injunction on the usage of a An amateur golfer, Bobbi Raskind in 1934.115 Already in sex-chromatin test.124 Although Lancaster, drew controversy by her childhood, she sensed the Dr. Richards in her interview deciding to try her skills divisiveness of genders within with BBC admitted that men professionally.130 The 65-year- herself.116 At the age of 40, Dr. are stronger and can hit harder, old golfer underwent her Richards decided to undergo she insisted that it is not the surgical transition in 2010 at gender reassignment.117 Before only factor to consider.125 The the age of 59.131 She had been the main change, Dr. Richards court’s view aligns with Dr. born Robert Lancaster.132 She had become one of the leading Richards’, but it refused to married her first wife during ophthalmologist surgeons in strike the Barr test altogether medical school.133 They had the country,118 was married and and reasoned that each case one child and adopted two had a child and, of course, should be evaluated as a whole, others.134 Even though she passionately played tennis.119 including all its variables and suppressed her urge to dress in After the transition, it was not circumstances.126 In this case, women’s clothes around her long before her past surfaced. the court viewed Richards as an children to avoid perplexing Upon winning a local individual with a successful their perceptions, the unsettling tournament, she was urged by career and a family but who confusion between her sex and others to play in the U.S. found it “necessary for her own gender-identity made her feel Open.120 She applied but was mental sanity to undergo a sex “sinful and defective.”135 denied entry in the women’s reassignment.”127 So, the court Moreover, this confusion – competition.121 Even though granted the injunction in all which is called gender Dr. Richards admitted that she respects.128 Subsequently, in dysphoria – was further tainted never intended to play in the the 1977 U.S. Open, Dr. with suicidal thoughts.136 U.S. Open, the rejection Richards became the first Eventually, Lancaster divorced enticed her to fight back.122 She transgender woman ever to her first wife and married

115 Sara Lentati, Tennis’s Reluctant 119 Lentati, supra note 115. http://www.usatoday.com/story/sp Transgender Pioneer, BBC NEWS 120 Hainey, supra note 118. orts/golf/2013/12/30/lpga-2014- (June 26, 2015), 121 Id. bobbi-lancaster-transgender- http://www.bbc.com/news/magazi 122 Lentati, supra note 115. golfer/4247307/ ne- 123 Id. [https://perma.cc/7LTZ-6X2E]. 33062241[https://perma.cc/9NLQ- 124 See generally Richards v. U.S. 131 Id. RT5K]. Tennis Ass’n, 400 N.Y.S.2d 267 132 Id. (N.Y. Sup.Ct. 1977). 133 Paola Boivin, Transgender Golfer 116 Id. 125 Lentati, supra note 115. Dreams of Playing in LPGA, AZ 117 Id. 126 Supra note 124 at 272. CENTRAL (Mar. 11, 2013), 118 Michael Hainey, The Woman Who 127 Id. http://archive.azcentral.com/sports Paved the Way for Men to Become 128 Id. at 273. /golf/articles/20130307transgender Women, GQ MAGAZINE (May 26, 129 Lentati, supra note 115. -golfer-dreams-play-lpga.html 2015), 130 Paola Boivin, Transgender Golfer [https://perma.cc/9NNA-CGSD]. http://www.gq.com/story/renee- Bobbi Lancaster Aims for LPGA 134 Id. richards-interview Tour in 2014, USA TODAY (Dec. 135 Id. [https://perma.cc/TB2L-RYKX]. 30, 2013), 136 Id.

59 Fall 2017 Volume 2 again.137 A heart attack became build. I've got leverage they hormonal therapy, and then in the pivotal point after which don't have. It's not fair.”139 2006, sex-reassignment she sought for a way to surgery.144 Rejected by her embrace her nature, which led C. Mixed Martial Arts mother, Fox moved to Chicago her to gender-reassignment (M.M.A.). and found some solace and surgery.138 Lancaster also The debates about whether support at her M.M.A. gym.145 pursued to fulfill her dream to transgender athletes have a She quickly rose to the highest play on the Ladies Professional rightful place in the women’s level in the sport, turning pro in Golf Association Tour (LPGA). division reached Martial Art 2011.146 In her athletic world, However, when Lancaster was when Fallon Fox’s success Fox was viewed and accepted asked whether she had some created fans and defeated solely as a female fighter. advantage over her opponents questioned her However, Fox felt hunted, competitors, she replied: legitimacy as a woman. Fallon fearing that someone would “In my own humble Fox, born Boyd Burton on discover her past.147 Once the opinion, I think it's very fair November 29, 1975,140 felt a news broke, so did Fox’s life. that I'm playing against the gravitation to femininity, much She was humiliated and caliber of players I'm trying to like Bobbi Lancaster.141 By degraded by having been called play against, because I have no adolescence, those feelings had “a sociopathic” and “disgusting advantage there. But for me to intensified, but she tried to freak.”148 Unbeatable in her last be allowed to play against conform herself to the male ten consecutive fights, women my age, I have a huge body in which she was born.142 M.M.A.’s star Ronda Rousey advantage. It's not fair. And At the age of twenty-eight, she refused to fight Fox,149 and Joe that's why I'm probably not told her family, to which she Rogan, the Ultimate Fighting playing against them, because I received an unsupportive Championship’s (U.F.C.) just feel like I have undue backlash.143 After commentator, blatantly stated advantage with my length. unsuccessfully completing his disbelief that even after a [A]nd I was a male, exposed to “gay-conversion therapy” decade of hormonal therapy testosterone most of my life. required by her father, Fox and a complete surgical I've got longer arms, bigger initiated her sexual transition, Fox could be called transformation, starting with a woman.150

137 Id. http://www.si.com/mma/2013/03/ 146 Id. 138 Id. 07/fallon-fox-profile 147 Hunt, supra note 141 (“It’s not 139 Cyd Zeigler, Trans Golfer Bobbi [http://perma.cc/SU3R-WYC]. something I like to discuss with Lancaster: ‘I Shouldn’t Compete 142 Id. people, but I’ve been bracing for Against Women My Age, SB 143 Cyd Zeigler, Fallon Fox Comes this for years, thinking when was NATION (Mar. 11 2013), Out as Trans Pro MMA Fighter, the phone call going to come?”). http://www.outsports.com/2013/3/ SB Nation (Mar. 5, 2013), 148 Bishop, supra note 145. 11/4090230/trans-golfer-bobbi- http://www.outsports.com/2013/3/ 149 Mitch Kellaway, UFC Women’s lancaster-i-shouldnt-compete- 5/4068840/fallon-fox-trans-pro- Champ Refuses to Fight Trans against-women-my-age mma-fighter Athlete Fallon Fox, ADVOCATE [https://perma.cc/A5UZ-673G]. [https://perma.cc/3LAY-XLRU]. (Sep.14, 2014), 140 Fallon Fox, WIKIPEDIA, 144 Id. http://www.advocate.com/sports/2 https://en.wikipedia.org/wiki/Fallo 145 Greg Bishop, A Pioneer, 014/09/22/ufc-womens-champ- n_Fox (last visited Dec 16, 2016), Reluctantly, N.Y. TIMES (May 10, refuses-fight-trans-athlete-fallon- [https://perma.cc/Y52W-5AEQ]. 2013), fox [https://perma.cc/AVR4- 141 Loretta Hunt, How Fallon Fox http://www.nytimes.com/2013/05/ KMCH]. Became the First Known 13/sports/for-transgender-fighter- 150 Hunter Felt, Transgender MMA Transgender Athlete in MMA, fallon-fox-there-is-solace-in-the- Fighter Fallon Fox Faces SPORTS ILLUSTRATED (Mar. 7, cage.html; see also Hunt supra Toughest Opponent Yet:Prejudice, 2013), note 139. THE GUARDIAN (Nov. 14, 2014),

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B. We may be not literate definition of a woman to a VI. PROVIDED THAT enough to be able to define particular type and number of THE MAIN REASON “a female.” chromosomes, hormonal levels, BEHIND ESTABLISHING One theory is that lack of and perhaps even appearances. THE POLICY HAS full understanding of gender Besides, if a stringent BECOME MOOT AND leads to the inability to define definition of a female should INABILITY TO DEFINE gender which ultimately leads exclude natural variations of “A FEMALE” DUE TO to failure to shape a valid female bodies, such as elevated DEFICIENCY IN sex/gender verification test. levels of testosterone, should SCIENTIFIC Contrary to general belief, other naturally occurring UNDERSTANDING OF some suggest that like peculiarities be deemed HUMAN SEX, THE everything else in nature, sex abnormal? For example, Eero SEX/GENDER and gender are not fixed but Mantyranta, a Finnish cross- VERIFICATION SHOULD rather fluid and ever changing country skier who won in the BE ABOLISHED notions.152 Many animals do 1960s seven Olympic medals, not conform to the rigid gender including three gold, had a A. The issue of detecting roles assigned by humans, genetic mutation that awarded male imposters is moot. some species of fishes display him up to 50 percent more Because all athletes in the hermaphroditism, and the oxygen in his blood.156 More elite sports are subject to anti- fluidity of sex is also not recently, Michael Phelps, the doping requirements, the issue uncommon in the botanical Olympic swimmer, allegedly of detecting male imposters by world.153 Another commonly has double-jointed ankles and visual examination is believed rare occurrence – unusually long arms and large unnecessary. The anti-doping intersex births – are not as rare hands which help him to swim agents (or shepherds who travel as they thought to be.154 faster.157 It is undecided with the agents) must be (Interestingly, South Africa, the whether such attributes are present in the athlete’s birthplace of Caster Semenya, merely natural variances of immediate presence during the has an unusually high level of human bodies or abnormalities. urine collection procedure for intersex births.)155 By the same It is even less certain whether testing purposes.151 Therefore, token, the definition of sex for such competitive advantages any inconsistencies with the humans ought to encompass the should prevent the athletes to athlete’s marked sex would be fluidity and uncertainty. This is compete.158 Most would say detected at that time. contrary to efforts of sport they are just variations. Thus, a authorities to confine the level playing field is probably

https://www.theguardian.com/spor male and female offspring…The 2009), t/2014/nov/14/transgender-mma- California sheephead, a bright https://www.newyorker.com/maga fighter-fallon-fox-joe-rogan blue, green, and yellow zine/2009/11/30/eitheror. [https://perma.cc/H6YL-TU9H]. fish…starts her life as a female 156 Longman, supra note 79. 151 Sample Collection Process, U.S. bearing eggs; then after four years 157 Valerie Siebert, Michael Phelps: ANTI-DOPING AGENCY, her gonads atrophy and she The Man Who Was Built to be a http://www.usada.org/testing/sam becomes a fertilizing male…. the Swimmer, THE TELEGRAPH (Apr. ple-collection-process/ (last gingko [tree], fairly frequently 25, 2014), visited Dec 16, 2016) changes its sex.” Id. at 67-69. https://www.telegraph.co.uk/sport/ [https://perma.cc/6CT8-MRVJ]. 154 “One in every 1,500 children is olympics/swimming/10768083/Mi 152 FRANK BROWNING, THE FATE OF born whether with ambiguous chael-Phelps-The-man-who-was- GENDER: NATURE, NURTURE, AND genitalia or with other less visible built-to-be-a-swimmer.html THE HUMAN FUTURE 56 (2016). sexual characteristics.” Id. at 70. 158 Jesse Ellison, Caster Semenya 153 “Male rams hump each other. 155 Ariel Levy, Either/Or: Sport Sex, And The IOC’s Olympics Gender Adult bulls demonstrate a variety and the Case of Caster Semenya, Bender, THE DAILY BEAST (July of ‘sexual’ gestures toward both THE NEW YORKER (Nov. 30, 26, 2012),

61 Fall 2017 Volume 2 unattainable because “[a]ll “genetically literate enough” to be abolished. The decades of Olympians have some come up with a proper test to unsuccessful attempts to define exceptional traits. That is why verify gender.160 The an ideal policy may be a clear they are elite athletes.”159 fundamental theory of a binary sign that such policy, at least at division into males and females this time, is not achievable. It VII. CONCLUSION continues to be scientifically may be wise to stop trying and unsubstantiated.161 Many have allow all women athletes to The two main reasons for discussed what the procedure participate in sport the policy were to level the ought to be.162 competitions. Perhaps not field to ensure fairness and to To date, all of the attempted forever. If at a later time, a impede male imposters. The policies have not only failed to legitimate need arises, this issue of male imposters turned provide a definite answer but issue could be revisited with a out to be an easy one. Today, raised more questions. clear goal of addressing that the anti-doping agency Evidently, the more effort is particular need. The gender performs the visual check with put toward defining “a female,” policies as they are today its procedures, and because, the more naturally occurring neither valid, fair, nor needed. especially in this day and age, variations are discovered. It it is highly unlikely that a male leads to an appropriate but will disguise as a female to hopeless debate on whether the compete in elite sports. Hence, naturally occurring the fear of imposters should abnormalities ought to be fade away, leaving the fear of accepted as variations within a fairness as the only justification certain gender or abnormalities for sex/gender policies. such as a form of deficiency or For decades, the sex/gender mutation. Sport authorities are verification remains a highly diligent in their efforts to complicated and controversial prevent athletes to enhance subject. However, the question their abilities by use of science. of what is considered “a However, many feel infuriated female,” for purposes of a sport even when such enhancements competition remains occur naturally in an athlete’s unanswered. To answer this body. Conversely, it is our question, another question must current social aim to promote be answered first: “is it even tolerance, acceptance, and all- possible for us to define ‘a inclusiveness of individuals’ female’?” Some voiced an diversity. It would be contrary opinion that it is not feasible to to that view establishing reach the set goal due to the limitations on the genetically natural variety of variables in enhanced athletes. human bodies. Others One thing is clear: the questioned whether we current policy has to change or

https://www.thedailybeast.com/art 160 Ambroise Wonkam et al., Beyond 161 Id. icles/2012/07/26/caster-semenya- the Caster Semenya Controversy: 162 M.A. Ferguson-Smith & Elizabeth and-the-ioc-s-olympics-gender- The Case of the Use of Genetics A. Ferris, Gender Verification in bender.html for Gender Testing in Sport, sport: The Need for Change? [https://perma.cc/R9BG-B869]. RESEARCH GATE (Dec. 2010), BRITISH J. OF SPORTS MED. 159 Longman, supra note 79. http://iddrc.wustl.edu/Portals/12/ (1991). Wonkam-JOGC-2010.pdf

62 Fall 2017 Volume 2

BUSINESS AS USUAL?: RECENT DEVELOPMENTS IN CORPORATE LIABILITY FOR INTERNATIONAL CRIMES Franziska Oehm

Although the vast majority of conflicts are based on or at least related to economic interests, the international community was reluctant for a long time to hold corporations criminally accountable for international crimes. The article provides a brief overview over the history as well as recent domestic and regional attempts to establish a regime of corporate criminal accountability to address the long-ignored entanglement of atrocity and economy.

I. Addressing root contributions, corporations or concerning their involvement causes of armed conflicts individual managers are not be in conflicts around the world. held accountable in most cases. In the following, a brief history In times of increasing The list of possible of corporate criminal violence and conflict involvements of business in accountability as well as two worldwide, the international armed conflicts is long. recent developments in community is under the Corporations can, inter alia, act domestic and regional obligation more than ever to as classical arms vendors; international criminal law will rethink methods of both directly contribute to torture, be presented to demonstrate conflict prevention and extermination or persecutions; that the relationship between protection of the civilian employ slave laborers from business and atrocity can no population from the devastating conflict regions in their supply longer be ignored. effects of atrocities – a goal chains; or fuel conflicts by that can only be achieved by maintaining business relations II. Corporate criminal addressing the root causes of with conflict parties such as liability for international conflict.1 states, rebel groups or others.3 crimes Although root causes for Conflict parties would often not armed conflict are multi- be able to remain powerful and Corporations have not dimensional and complex, it financially strong without the always been immune from can be stated that the vast “help” of businesses. prosecutions, evidenced by majority of armed conflicts are As a result, business historical accounts of corporate either based on or at least participation creates a “fueling criminal accountability. The related to financial interests. effect” on the cause and birthplace of modern However, the socio-economic duration of conflict. Failing to international criminal law, dimensions of conflicts are address the fueling effect Nuremberg, dealt with German often underrepresented in through the means of criminal business leaders who supported debates, reports and judicial prosecution creates an the rise of the Nazi party and proceedings.2 While political accountability gap, removing the Holocaust machinery.4 A leaders may have to fear the possibility of any deterrent selection of the most criminal prosecutions for their effects on corporations responsible businessman were

1 S.C. Pres. Statement 2017/14 (Aug. 9, BEYOND GREED AND GRIEVANCE Schindlers” , 9 Temp. Int’l & Comp. L.J. 2017). (2003). 173 (1995). 2 See, e.g., KAREN BALLENTINE & JAKE 3 Id. SHERMAN, INT’L PEACE ACAD., THE 4 Matthew Lippman, War Crimes Trials of POLITICAL ECON. OF ARMED CONFLICT: German Industrialists: The “Other

63 Fall 2017 Volume 2 held accountable during the so- was discovered implicating jurisdiction of the court on four called Nuremberg subsequent many more companies for their core international crimes: trials.5 The main Nuremberg extensive involvement in the genocide, war crimes, crimes trial before the International Third Reich, for instance by against humanity and the crime Military Tribunal had no funding and benefitting from of aggression.16 Individuals of industrialist in the dock.6 The forced labor programs.12 non-member states can only be subsequent Nuremberg trials, a In the aftermath of subject to the jurisdiction of the series of twelve U.S. military Nuremberg, international court if either the state itself or tribunals, took place from 1946 criminal tribunals such as the the U.N. Security Council to 1949.7 With Telford Taylor International Criminal (unanimously via Security as chief prosecutor, the list of Tribunals for Yugoslavia Council Resolution) refers the defendants of the twelve (herein, “ICTY”)13 and Ruanda situation to the court.17 Nuremberg trials included (herein, “ICTR”)14 missed the Corporate criminal liability is German doctors, judges, SS chance to build on not foreseen in the ICC Statute, officers, politicians and Nuremberg’s legacy by as Article 25 of the ICC Statute industrialists.8 Industrialists in addressing the entanglement of refers to jurisdiction over Nuremberg were represented as economy and atrocity in natural persons. As a result, the defendants in United States v. substantial way. individual liability of Krauch,9 better known as the Today, the greatest source businessman would fall under I.G. Farben case, United States of international criminal law, the scope of ICC’s jurisdiction v. Friedrich Flick at al.,10 and the International Criminal and the court would be able to United States v. Krupp,11 Court (herein, the “ICC”) in prosecute economic actors for leading to the convictions of The Hague, has been reluctant their alleged contributions to twenty-seven businessman for to address the issue. The ICC international crimes. However, their role in Nazi Germany war began operating in 2002, after no such cases have been crimes and crimes against the ratification of the ICC subject to prosecutions of the humanity, such as slave labor Statute in 1998 in Rome, and court so far. programs, plunder and became the first permanent spoliation (collectively, the international criminal law III. National prosecutions “Industrialist Trials”). During court. So far, 128 States have of international crimes: the preparation stage of the ratified the ICC Statute15 and Syria, ISIS, and a criminal Industrialist Trials, evidence have therefore submitted to the complaint in France

5 Id. Tribunals Under Control Council Law No. 0a655eb30e16/0/rome_statute_english.pdf 6 Id. 10 (1050). [http://perma.cc/XZ52-DRU6]. 7 See Kevin Jon Heller, The Nuremberg 12 See Hans Mommsen & Mit Manfred 16 See ICC Statute, U.N. Doc. Military Tribunals and the Origins of Grieger, Das Volkswagenwerk und seine A/Conf.183/9, Art. 5, 3 (1998), International Criminal Law (Oxford Arbeiter im Dritten Reich [The https://www.icc- 2012). Volkswagen and its Workers in the Third cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84- 8 Ben Ferencz, International Criminal Reich] (1996); See also Bernard P. be94- Courts: The Legacy of Nuremberg,10 Bellon, Mercedes in Peace and War: 0a655eb30e16/0/rome_statute_english.pdf Pace Int. Law Rev. 203, 206 (1998). German Automobile Workers, 1903-1945 [http://perma.cc/XZ52-DRU6]. 9 United States v. Krauch, 7 Trials of War (1992); Peter Hayes, From Cooperation to 17 See ICC Statute, U.N. Doc. Criminals Before the Nuremberg Military Complicity: Degussa in the Third Reich A/Conf.183/9, Art. 13, 11 (1998), Tribunals Under Control Council Law No. (2007). https://www.icc- 10, at 1102 (1953). 13 S.C. Res. 808 (Feb. 22, 1993). cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84- 10 United States v. Friedrich Flick, 6 14 S.C. Res. 955 (Nov. 8, 1994). be94- Trials of War Criminals Before the 15 Rome Statute of the International 0a655eb30e16/0/rome_statute_english.pdf Nuremberg Military Tribunals Under Criminal Court [ICC Statute], U.N. Doc. [http://perma.cc/XZ52-DRU6]. Control Council Law No. 10, at 11 A/Conf.183/9, Art. 25, 17-18 (1998) (1952). https://www.icc- 11 United States v. Krupp, 9 Trials of War cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84- Criminals Before the Nuremberg Military be94-

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sexual violence, sexual slavery, materials such as oil and Apart from the ICC, the and summary executions.21 pozzolana.26 According to the four international crimes are In addition to their complaint filed against the implemented in many domestic ideological agenda, the terrorist company, large amounts of penal codes, providing a group is pursuing economic monetary fees have been possible forum for prosecutions interests in the region.22 To do allegedly paid by Lafarge to of corporate criminal so, the group must have ISIS, for instance, for the misbehavior in domestic courts. acquired necessary financial crossing of checkpoints such A current example of the resources to remain a powerful that it appeared Lafarge had application to address corporate player in the conflict.23 The obtained official passes from involvement in international French cement company, the terrorist group.27 crimes is a complaint filed in Lafarge, is allegedly part of the The complaint serves as France concerning a French financial support for ISIS.24 one example for corporate cement corporations’ business According to a criminal involvement in armed conflicts in Syria.18 complaint filed in France in and the possibilities of After pro-democracy 2016, Lafarge’s Syrian addressing misbehavior in protest in 2011, a bloody civil subsidiary was involved in domestic courts. war arose in Syria causing the illegal activities and payments death of at least 300,00 Syrians to ISIS, that amounted to IV. Regional legislative as of March 2017.19 The U.N. complicity in war crimes and attempts: The African High Commissioner for Human crimes against humanity, as Court of Justice and Human Rights, Zeid Ra'ad Al Hussein, well as the financing of Rights recently called the conflict “the terrorism and forced labor.25 worst man-made disaster the Despite the rising conflict and Apart from litigation world has seen since World political instability in Syria in efforts, a notable recent War II.”20 The terrorist group 2011, Lafarge decided to retain legislative development can be of the Islamic State of Iraq and an active corporate presence reported from the African Syria (herein, “ISIS”) controls and continue business in the Union (AU). In 2014, the AU parts of North-East Syria, Jalabiya subsidiary in North General Assembly surprised fighting its opponents in the East Syria. When ISIS took the international community region to gain territorial and gradual control over the region with its proposal for the political power. According to and committed large-scale creation of an integrated an U.N. report, the group atrocities in the area, Lafarge African Court of Justice and committed massive war crimes may have entered, via Human Rights (herein, and crimes against humanity, intermediaries that it hired, into “ACJHR”), adopted through such as mass slaughters of negotiations with ISIS to ethnic and religious groups, purchase ISIS-controlled raw

18 French-Swiss Company LafargeHolcim 20 Zeid Ra’ad Al Hussein, Syria Worst 24 Id. Sued for Grave Crimes in Syria, European Man-Made Disaster Since World War II, 25 See Dorotheé Myriam Kellou, Le jeu Cent. for Constitutional and Human United Nations Human Rights Office of dangereux de Lafarge en Syrie [The Rights, https://www.ecchr.eu/en/business- the High Comm’r (Mar. 14, 2017), Dangerous Game of Lafarge in Syria], and-human-rights/lafarge-syria.html http://www.ohchr.org/EN/NewsEvents/Pa LeMonde.fr (Nov. 12, 2016), [https://perma.cc/99K9-4L890]. ges/DisplayNews.aspx?NewsID=21373& http://www.lemonde.fr/international/articl 19 Jack Moore, Syria War Death Toll Hits LangID=E [https://perma.cc/NN3W- e/2016/11/12/le-jeu-dangereux-de-lafarge- 321,000 with Further 145,000 Missing: 8T8E]. en-syrie_5030048_3210.html Monitor, Newsweek (Mar. 13, 2017, 1:14 21 U.N. HRCOR, 34th Sess., U.N. Doc. [https://perma.cc/DD7B-TCB3]. PM), http://www.newsweek.com/sixth- A/HRC/34/64 (March 24, 2017). 26 European Ctr. for Constitutional and anniversary-syrian-conflict-looms-war- 22 European Cent. for Constitutional and Human Rights, supra note 18. monitor-says-465000-killed-or-567181 Human Rights, supra note 18. 27 Kellou, supra note 25. [https://perma.cc/TB3V-PKWY]. 23 Id.

65 Fall 2017 Volume 2 the Malabo Protocol.28 The economic contributions to protocol has not yet reached the international crimes and should number of necessary be taken seriously by the ratifications, but the planned international community. criminal law chamber already stirs scholars and practitioners, V. Conclusion who questioned the compatibility with the ICC The short overview is Statute, and even the legality of intended to demonstrate that the establishment of the corporate complicity to criminal chamber.29 Critical international crimes is an voices view it as an attempt to emerging field of international undermine ICC investigations and national criminal law on the African continent.30 prosecutions and that Apart from that, the Malabo awareness of the problem has protocol adds a so far new increased recently. perspective to international While criminal criminal law: jurisdiction prosecutions are necessary to ratione personae over legal address the full scope of persons together with an economy and atrocity, extended list of economically awareness and public debate on related crimes such as economy as a root cause for corruption (Art. 28 I), illicit conflict must also be increased exploitation of natural to address the issue. The Syrian resources (Art. 28 L) or money case as well as the Malabo laundering (Art. 28 I bis). Protocol demonstrate that Consequently, the criminal national and regional criminal chamber of the planned proceedings have the potential ACJHR would have to address corporate jurisdiction over corporations involvement in international for their criminally relevant crimes, hopefully leading to an misbehavior exceeding their end of the tradition of corporate alleged involvement in impunity and helping to deter international (core) crimes. armed conflict in the future. This development is particularly interesting as it points to inequalities in the prosecution of business and political leaders and sets a new framework for targeting

28 African Union, Protocol on the Merger of Justice and Human Rights, 9 J. Int’L Human Rights Jurisdiction over of the African Court of Human and Crim. Just. 1067 (2011). Ademola Abass, International Crimes, Blog of the Peoples’ Rights and the Court of Justice Historical and Political Background to the European Journal of International Law of the African Union to the African Court Malabo Protocol, in 10 International (Aug. 27, 2012) http://www.ejiltalk.org/a- of Justice and Human Rights, Annex at p. Criminal Justice Series 21 (Gerhard Werle case-of-negative-regional- 9 et seq., O.A.U. Doc. Assembly/AU/23 & Moritz Vormbaum eds., 1st ed. 2017). complementarity-giving-the-african-court- (June 27, 2014). 30 See, e.g., Max du Plessis, A Case of of-justice-and-human-rights-jurisdiction- 29 See Chacha Bhoke Murungu, Towards Negative Regional Complementarity? over-international-crimes/ a Criminal Chamber in the African Court Giving the African Court of Justice and [https://perma.cc/A2P2-DAUL].

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ARTICLE AUTHOR BIOGRAPHIES

The authors who have submitted articles for this edition of The Forum are quite literally the lifeblood of the publication. Without their voices, the Diversity & Social Justice Forum could not fulfill its mission. We are extremely grateful for the opportunity to publish these diverse and necessary voices of our community.

Jean Schroedel, Ph.D. MIT, is current and thought-provoking University of Erlangen- a professor in the Department issues. Diana believes that Nürnberg. Her research interest of Politics and Government at virtually any obstacle can be lies in international law, with a Claremont Graduate overcome with determination, focus on international criminal University. She has an diligence, and creativity. law, international economic extensive record of academic law and human rights. She is publications, including most Sharilyn Nakata, Ph.D., who currently writing her notably her book, Is the Fetus a was born and raised in Hawaiʻi, dissertation on corporate Person? A Comparison of is a 2017 graduate of the UC accountability for international Policies Across the Fifty States, Irvine School of Law. She also crimes. which was awarded the holds a Ph.D. in Classics from Victoria Schuck Prize by the UC Irvine and was a professor Suneeta Israni is a third-year American Political Science of classical Greek and Latin law student at Chapman Association. Most of her prior to attending law school. University Dale E. Fowler recent scholarship, including a She is currently working in the School of Law. This paper is a forthcoming University of field of immigration law at product of Ms. Israni’s Pennsylvania Press book, has Inland Counties Legal Services participation in a directed focused on voting rights issues in Riverside. research course. Her affecting Native Americans. knowledge of and experience Franziska Oehm, in 2016, was with restorative justice Diana Isyanova is a J.D. the Nuremberg Trials practices comes from her time candidate at Chapman Commemoration and Ben- as a former K-12 public school University, Dale E. Fowler Ferencz Foundation LL.M. educator in an under-served School of Law. She graduated Fellow at Chapman University, community of Los Angeles. magna cum laude from UC Fowler School of Law. Before Her study of restorative justice Irvine with a Bachelor of Arts coming to Chapman, she as a theory comes from her in Business Economics. Her studied International Law in time at Loyola Marymount passion for problem-solving Nürnberg and Madrid and University, where she obtained often leads her to inquire into holds a Law Degree from the here M.Ed in Policy and Administration and professional development provided by Teach for America and Leadership for Educational Equity. Ms. Israni’s immediate plans include enrolling in Professor David Dowling’s Juvenile Restorative Justice Clinic.

Fall 2017 Volume 2

2016 Diversity & Social Justice Forum Heidi Mattson and Mackenna Waterhouse

The Dale E. Fowler School of Law Diversity & Social Justice Forum held its second Symposium on Friday, November 4th, 2016. The purpose of our group is to create a space for diverse voices on given topics and to that end we decided to title last year’s event “Silenced Justice?” and draw focus to groups in our society whose voices are being quieted to varying degrees. We had panels ranging from discussing the politics of seeking asylum in the United States, to the impact of- and possible motives behind -Voter ID Laws in light of changes to the Voting Rights Act, to the path toward equal protection for the transgender community. The event ended with a Keynote Address by Immediate Past American Bar Association President, Paulette Brown. Aside from bringing diverse voices to campus on these increasingly important topics, we seek to bring community activists, the legal community, and university student and faculty together to act upon the initiatives discussed. Academic topics require action to truly change, however incrementally, the world in which we live. Be it on the front steps of the law school to the broader Orange County area, there is nothing if not a more urgent need to ensure that voices actually representing the communities impacted in these select spheres be heard. -Rick Reneer Jr., 2016 Vice-Chair of Symposium

On November 4, 2016 – just four days before the presidential election— Chapman University Dale E. Fowler School of Law’s Diversity and Social Justice Forum presented the symposium “Silenced Justice?” to a full audience in the law school’s Kennedy Hall. The symposium brought a diverse group of practitioners, activists, and academics to Chapman, providing a forum to discuss several highly charged issues – refugees and political asylum, Speakers: Luis F. Gomez, Dean Marisa Cianciarulo, Victor Phan, and voting rights, and transgender Julie Marzouk rights – all centering around the subject of justice. As Chapman Law Dean Matt Parlow Politics of Seeking Asylum,” observed in his opening invited speakers discussed how remarks, “Society sometimes they believe institutionalized struggles to talk about discrimination is used to further complicated issues of justice. traumatize and punish refugees Institutions of higher education, for being in the United States and in particular Chapman and to keep refugees out of the University and the Fowler country altogether. Luis F. School of Law, are precisely Gomez, Immigration Resources the types of places where we Specialist at the LGBT Center can have … civil and respectful OC and an immigrant himself, conversations about these spoke of LGBTQ immigrants’ issues.” double minority status. He During the first of three noted that, with no United Dean Matthew Parlow panels, “Refugees and the States contacts or command of

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survival crimes, the most Williams Institute, shed light on the impact of voter ID laws the English language, LGBTQ on voting access for the immigrants may resort to transgender community, who common being sex work, comprise about 0.58% of the which can result in U.S. population (about the incarceration and subsequent same as the population of San injury to their immigration Diego). She explained that status. Victor Phan, Chair of America is losing voters the Vietnamese Refugee because people who have fully Palawan Association and a transitioned may not have Vietnamese refugee, discussed updated ID documents, and how he and his family waited various state laws can make it 16 years in a detention center in difficult for someone to change the Philippines until they could their name or gender. Dr. John resettle in the United States as C. Eastman, Henry Salvatori political refugees. Phan noted Professor of Law and that, “we all value freedom Kimberly La Salle Community Service at because freedom is not free.” Chapman, discussed the issue He further stated that detention presentation on the history and of voter fraud and his view of for such a long period of time significance of voting rights the importance of voting is unfortunately common for laws in the United States. She restrictions for minority refugees since the United States pointed out that Americans take districts where people are often government may use detention their right to vote very bussed in from other states to as a deterrent for seeking seriously, but they focus on vote fraudulently, negating asylum. Professor Julie fixing voter apathy instead of legitimate votes. While it was Marzouk, who teaches in the the voting access challenges argued by Dr. Eastman that law school’s Family Protection faced by people who want their voter ID laws protect people, Clinic, explained that asylum voice to be heard. Amira there was fervent discussion as seekers cannot access attorneys Hasenbush, Jim Kepner Law to whether people have been from remote immigration and Policy Fellow at the detention facilities and do not have the right to counsel. Also, children and domestic violence victims cannot articulate the elements needed to qualify for asylum, and cases can be fast- tracked through “rocket dockets,” which on average take only 24 days, not nearly enough time to find counsel or mount a defense. President-elect of the Thurgood Marshall Bar Association Kimberly La Salle began the second panel, “Changes in Voting Rights & Voter ID Laws,” with a video Speakers: Jean Schroedel, John Eastman, and Amira Hasenbush

68 Fall 2017 Volume 2 wrongfully disenfranchised by community under the guise of certain mechanisms put in addressing a public safety place to enforce such laws. Dr. issue. Panelists described the Jean Schroedel, Professor of difficulties and inequality Politics and Policy at transgender people face in Claremont Graduate accessing culturally competent University, spoke about voting healthcare, having their access and the effects of voting fundamental rights protected, restrictions unique to Native and dealing with anti- American and Native Alaskan transgender stigma and communities. Despite being the violence. Cesena noted that first Americans, Dr. Schroedel transgender women, noted that they were the last particularly transgender women group of people born within the Kris DePedro of color, comprise the vast United States to get the The final panel, majority of anti-transgender franchise, they have the lowest “Transgender Rights and the violence victims, adding that registration and voting rights of Legal Hurdles to Equal the average life expectancy of a any United States population, Protection,” featured panelists transgender black woman is and even today they are Dannie Cesena, Transgender only 35 years due to either forgotten in the discussion Services Coordinator for the murder or suicide. To fix these about voting issues. She also LGBT Center OC; Tony issues, panelists said there must pointed out that, as a result of Viramontes, Director of be more dialogue that focuses the holding in the United States Prevention Services for the specifically on the experiences Supreme Court case of Shelby LGBT Center OC; Stephen of the transgender community. County v. Holder, states can Hicklin, lawyer and As Hicklin observed, the transgender law specialist; and transgender community is Professor Daniel B. Weddle, distinct from the LGB Clinical Professor of Law and communities, and transgender- Director of Academic Support specific issues are at the University of Missouri- overshadowed by the statistics Kansas School of Law. Their and discourse broadly discussion addressed whether representing LGBT issues. transgender individuals have The symposium concluded Speakers: Stephen Hicklin, Tony with a special keynote address Viramontes, Dannie Cesena, and been deprived of equal Daniel B. Weddle protection on the sole basis of by Paulette Brown, Partner and their gender identity. It was Co-Chair of the firm-wide pass voter ID laws that remove noted that the federal Diversity and Inclusion provisions expanding means of government and the majority of Committee at Locke Lord LLP voter registration as well as states do not include gender and Immediate Past President laws that greatly obstruct identity in non-discrimination voting access with highly laws, suggesting that some limited or unavailable mail people are more equal than service, intimidation tactics, others. Hicklin stated that such and limited access to voting denigration can also be found sites that require people to in bathroom bills, which he travel up to 200 miles to reach called a “solution in search of a a voting site. problem,” where states seek to stigmatize the transgender Paulette Brown

69 Fall 2017 Volume 2 of the American Bar Association. Brown’s speech addressed the importance of diversity inclusion. She indicated that inclusion does not mean exclusion, as many people seem to believe, but instead it requires a level playing field for everyone. Brown expounded on the necessity of having diverse communities represented in the legal field in order to maintain the honor of the profession and to address the issues of inequality that exist in our nation.

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2017-2018 Diversity & Social Justice Forum Board Faculty Advisor Professor Denis Binder

Executive Board Chair Rick Reneer Jr.

Interim Vice-Chair of Publication Vice-Chair of Symposium Vice-Chair of Public Relations Jessica Ewert Robert Skrinyaz Amir Sadeghian

Secretary/Treasurer Alissa Hurns

Board Members Board Volunteers Mario Oropeza Carter Taylor Michael Funk Dominique Boubion Suneeta Israni Lance Cotton Marie Sutton Tyler Cordell Sumangla Bhattacharya Daniel Soto Abinaya Prabakar Stephanie Li Phuong Luu Brooke Yeagan Flor Gonzales Elyssa Hines

NOTE FROM THE EDITOR Jessica Ewert

In a political climate this new American voice grows them a genuine chance to marred by divisiveness, racial among the amber waves of evolve, advance, and be heard. tension, and socioeconomic grain, one can hear the echoes It is in these difficult times that strife, citizens are in search of a of those calling for both the we must double down as a moral authority to guide them. conscience conservative and society to ensure the civil rights People have called on the the pragmatic liberal to take the so desperately fought for by the President to act, desperate for a moral high ground away from generations before us do not denunciation of those those who trounce it. disappear. espousing prejudice—calls that It is in this new American have mostly fallen on deaf ears. voice that we at the Diversity & While those calls have gone Social Justice Forum unanswered, the energy with Publication, The Forum, strive which those voices cried out to provide a thoughtful for moral authority helps them platform for informing public grow louder. in the current political climate In this energy, I see the and beyond. Our goal is to seed of a new American voice, unify as many voices as we struggling to be heard over the can, speaking out against hate tantrums of “fake news.” As and prejudice in order to give

Fall 2017 Volume 2

DIVERSITY & SOCIAL JUSTICE FORUM CHAPMAN UNIVERSITY DALE E. FOWLER SCHOOL OF LAW

CALL FOR PAPERS

The Chapman University Dale E. Fowler School of Law Diversity & Social Justice Forum’s publication is published once a year and is seeking articles for publication that discuss issues of social justice, including any aspect of the underlying legal or humanitarian concerns, legal or policy solutions, or the work of movements organizing to address the problem. We aim to publish practice- oriented articles that discuss barriers to justice and the strategies implemented to overcome those barriers both in the courtroom and in the streets.

We especially welcome articles that address aspects of our symposium “Changing Institutions, Disappearing Protections” (November 2017). Topics may include (but are not limited to):

• Who Watches the Watchmen?: Civil Rights and Accountability Under the New Administration

• Crimmigration: A Critical Look at Rationales for Increasing Deportation

• American Health Care in the Face of Current Reform Efforts: How Much Should the Public Expect from Government Programs and Why?

Submissions should be no more than 5000 words in length, not including footnotes. Once a submission is selected, our editors will work with the author to prepare the submission for publication. Citations should conform to The Bluebook: A Uniform System of Citation (20th edition, 2015). Authors will retain copyrights after publication. Please address inquiries and unsolicited submissions to: [email protected]. Please list “Submission Inquiry for 2018 DSJF Publication” in your subject heading.

Articles may be submitted via email to [email protected]. The deadline for article submissions is January 31, 2017.

If you would like more information about the symposium or publication, please visit our website at https://www.chapman.edu/law/publications/diversity-social-justice/index.aspx

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