Volume 2018, No. 1

Table of Contents

Articles

The Erosion of Civil Rights and What to Do About It
Lynn Adelman

I want to begin by thanking the law clerks who served Seventh Circuit Judge Thomas E. Fairchild for inviting me to give the annual Fairchild Lecture. It is an honor to give a lecture previously given by such distinguished figures as Justice John Paul Stevens and Professor, now Senator, Elizabeth Warren. In the course of preparing for this talk, I discovered that Judge Fairchild was a great civil libertarian. As a lawyer, he represented people who had been summoned to testify before The House Un-American Activities Committee. And, as Attorney General of Wisconsin, he sought to integrate a public swimming pool in Beloit when there was no requirement that his office be involved. I was not surprised by this discovery, but I mention it because it leads into what I want to talk about today which is civil rights and, more specifically, civil rights as it regards the interaction between citizens, often but not always African-Americans, and government officials, often but not always police officers. We know that in the 1950s and 1960s, great progress was made in the area of civil rights both as a result of decisions of the Warren Court such as those striking down segregation and expanding habeas corpus and acts of Congress such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. That memorable burst of progress, however, was followed by a long period in which we heard very little about civil rights, a period lasting roughly from the 1960s until very recently. As one civil rights scholar put it, “[t]he struggles of the [civil rights era], the changes they wrought—‘[a]ll this is ancient history.’”

 Recently, however, the deaths of Michael Brown in Ferguson, Missouri and Eric Garner in New York City and the police shootings of African-Americans in other places including Milwaukee and Madison triggered large-scale protests and something of a renewal of civil rights activism.10 National civil rights organizations weighed in with proposals, and President Obama created a task force that also made recommendations. These organizations discussed such topics as the need for the Justice Department to pursue more investigations of police departments, whether police should wear body cameras, and the possibility of holding officers criminally liable. One striking aspect of this activity, however, is how little attention was paid to what has long been the most important legal vehicle for holding police and other government officials accountable for misconduct: civil actions often referred to as constitutional tort lawsuits, usually for money damages brought under § 1983 of the United States Code. In my talk today, I want to attempt to partially rectify this omission. I hope to make three basic points: (1) that lawsuits brought under § 1983 can be an important and effective mechanism for enforcing constitutional rights; (2) that the United States Supreme Court is, unfortunately, making it much harder for civil rights plaintiffs to prevail because of its interpretation of the statute and particularly its decisions on the issue of qualified immunity; and (3) that civil rights advocates and policy-makers need to pay more attention to § 1983 and to the Supreme Court’s decisions, and they must also begin to think about a strategy to strengthen the law.

Disappearing Data
Agnieszka McPeak

“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.

 But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined. This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms—indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.

“LOL No One Likes You”: Protecting Critical Comments on Government Officials’ Social Media Posts Under the Right to Petition
Dr. JoAnne Sweeny

As technology has continued to evolve and change, so too has the way people across the country communicate with each other. This trend has also affected the ways constituents interact and communicate with their political representatives. As a result, many citizens have taken to social media platforms like Twitter and Facebook to post, tweet, and hashtag about their elected representatives, whether praising them or airing their grievances against them and their policies. Perhaps the best examples of this trend are Kentucky Governor Matt Bevin and Donald Trump, who have utilized these digital platforms to convey policy decisions and stances directly to their followers. However, in the process of maintaining these accounts, both politicians have blocked users from interacting with their accounts for various reasons, and consequentially have impeded those users’ ability to communicate with them. As a result, Bevin, Trump and other government officials are being sued for allegedly violating their ex-followers’ First Amendment right to freedom of expression. Freedom of expression may offer a viable legal path to those litigants but this article argues that there is another way: the right to petition. Specifically, this article argues that the practice of blocking users from official government accounts acts as a violation of their right to petition the government for redress of grievances. Thus, this article traces the history of the right to petition the government in the United States, seeks to create a modern definition of a “petition,” and, applying that definition, shows that blocking social media followers from official government social media pages or feeds violates the right to petition.

Fixing What’s Wrong With How Universities Adjudicate Sexual Misconduct Claims: How Procedural Change Can Encourage Cooperation
Tammi Walker

In the past few years, the public has been bombarded with news stories and allegations that have raised its consciousness with respect to the problem of sexual assault on university campuses. The most often quoted studies suggest that approximately nineteen percent of young women and six percent of young men will experience sexual violence while attending college. Official responses to reports of sexual offenses have generated outrage and resulted in calls for action. Frustration likely stems from universities’ imposition of barriers to reporting sexual assault and a failure to impose adequate consequences for those accused of sexual assault. Notwithstanding the fact that few cases receive public attention; the problems associated with how colleges and universities handle sexual misconduct cases are pervasive. Notably, the number of colleges and universities being investigated by the United States Department of Education’s Office for Civil Rights (“OCR”) for violations based upon the handling of sexual assault cases on campus has gone from 55 in May 2014, to 159 in December 2015, to 496 in July 2017. Consequently, closer attention has been paid to understanding more about the scope of the problem and directed at reducing the incidents of sexual violence on campus by enacting changes in policy and legislation.

 Far-reaching legislation has been introduced at a volume and pace that has not been seen in the nearly thirty years since the enactment of the Clery Act. Most significantly, in March 2013, President Obama signed The Campus Sexual Violence Elimination (SaVE) Act, which expanded college reporting requirements, codified guidelines for disciplinary proceedings, and mandated prevention and training programs. Faced with seemingly insurmountable scrutiny, universities and federal and state governments are scrambling to be seen as being responsive to the problem of sexual misconduct on campus. As a result, the decisions made by authorities may be arbitrary and capricious. For example, the University of Virginia’s governing board quickly adopted a zero-tolerance policy towards sexual assault in response to Rolling Stone’s article on gang rape at a fraternity party. When this policy was announced, the governing board also acknowledged that the specific meaning of zero-tolerance would have to be determined at a later date. Furthermore, while the article “A Rape on Campus” ultimately shined light on a broken system, policy actions taken quickly and in direct response to this article were premature given that the piece was discredited and later retracted due to Rolling Stone’s failure to verify significant details of the alleged event. Sources of ideas for policies that may improve the process for handling campus sexual assault are not in short supply. Policy guidance is available from professional organizations including the American Bar Association, the American Association of University Professors, and the United States Senate. Most importantly, the Secretary of Education Betsy DeVos recently announced her intention to produce new guidelines after a thorough review of Obama-era policies. Despite these legal and political efforts, it would seem that many have lost confidence in the ability of universities to manage this epidemic properly. The debate about whether sexual assault on campus should be handled administratively by university officials or exclusively within the criminal justice system is ongoing. However, given that, when compared to the criminal justice system, campus discipline is faster, has a lower evidentiary standard, is often confidential, and can provide much needed remedies to students not afforded by the criminal justice system, it is not likely that by simply eliminating the ability of universities to adjudicate sexual misconduct that this problem will simply go away. What is needed is a framework to guide decision-making. Notably, there have been no empirical efforts to gauge how changes to campus sexual assault policies will affect students. Likewise, no socialpsychological theory has been offered in order to help understand, analyze, and describe how and why processes used to discipline students influences their behavior. Expanding the knowledge base in these areas is vital to our ability to explain why policy changes will lead some schools to succeed where others fail.

Comment

#AIRBNBWHILEBLACK: Repealing the Fair Housing Act’s Mrs. Murphy Exemption to Combat Racism on Airbnb
Brenna R. McLaughlin

The advent of Airbnb has created a chasm of liability between America’s newest lodging category and our nation’s fair housing laws. Developed in 2008, Airbnb offers travelers a way to bypass expensive hotels by renting space from home owners and lease holders through advertisements on Airbnb’s website. Users book their accommodations directly from hosts, who have virtually complete discretion in deciding who to rent to. Airbnb faces growing criticism, highlighted by the personal stories told using the hashtag AirbnbWhileBlack on social media, that it has failed to stop the proliferation of racism on its platform. This Comment analyzes how Airbnb’s hybrid category of publicized accommodation facilitated through private, peer-to-peer transactions likely makes both the company and its hosts immune from the Fair Housing Act (FHA) due to an old exemption within the law that protects discrimination by renters in small, owner-occupied buildings. This issue is particularly timely as Airbnb has currently surpassed all worldwide hotel chains in value, making it the world’s largest accommodation provider.

 This Comment argues the FHA’s Mrs. Murphy exemption legalizes unfettered discrimination, that Airbnb creates a commercial relationship more akin to a hotel than a roommate, and that users’ civil rights and inadequate legal remedies outweigh any association interests held by hosts. This Comment first examines the Civil Rights Movement’s role in shaping the FHA and the lingering racial animus that led to the introduction of the Mrs. Murphy amendment. It then explores the rise of Airbnb and the regulatory gaps in current federal housing regulations and statutes. After arguing recent Supreme Court precedent interpreting the Mrs. Murphy exemption both applies to Airbnb and protects racial discrimination in shared housing, this Comment defends the FHA’s robust remedies as a potential means to combat racial discrimination in the growing short-term rental economy. Finally, the Comment calls for the repeal of the Mrs. Murphy exemption in regards to race and advocates for the prohibition of classaction waivers in fair housing litigation. By encompassing FHA liability for companies that facilitate rental transactions, discriminated Airbnb users will gain enhanced legal remedies that will combat the proliferation of racism on America’s fastest growing accommodation provider.