This Article discusses how New York City public schools planned to reopen in the fall of 2020, given the COVID-19 crisis, and what educators and elected leaders charged with school governance consider when closing and reopening schools to support public health and address and alleviate the stark inequities the pandemic exposed and exacerbated. This Article also explores who should decide the terms and, moreover, what theories and methods of leadership and governance might best respond to the stark social and educational inequities that the pandemic revealed and worsened.
How do lawmakers support small businesses most deserving of assistance in places most in need of governmental support? As a means for approaching this question, this Essay examines two recent laws — the Paycheck Protection Program and the Opportunity Zone tax incentive. The Paycheck Protection Program was the cornerstone of the CARES Act, designed to keep employees on payroll during the worst parts of the COVID-19 pandemic. The Opportunity Zone incentive was implemented to provide economic development stimulus to neighborhoods identified as needing capital investment following the Great Recession.Both laws purported to support small businesses. However, in practice, both failed to deliver promised capital to the most marginalized business owners in places most in need. In the case of the Paycheck Protection Program, larger businesses, including those with access to capital from other non-governmental sources, were able to access initial rounds of federal funds because of their close relationship with Small Business Administration-certified lenders. In the case of the Opportunity Zone incentive, although there is no official reporting, voluntary data collection indicates that most investments are flowing into large commercial real estate developments instead of small businesses.There are a number of implications and research questions arising from analysis of these laws. This Essay seeks to draw out additional similarities and differences between these two laws. It seeks to both offer a critique of the Biden Administration’s proposals with respect to economic development interventions supporting small businesses in places in need and suggest improvements to these laws, as well as future ones.
During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd’s murder at the hands of police is the flame, the spark was ignited long ago. One need only review the record of recent years — the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls have led to this particular season of widespread protests and organized demands for change. As the focus turnsfrom necessary protest to tangible progress, what remains unanswered is how best to proceed. Professor Ibram X. Kendi described antiracism as “a radical choice in the face of this history, requiring a radical reorientation of our consciousness.” One such “radical choice” is defunding the police. Although the long-held belief in police “super powers” is crumbling, the majority of Americans do not support wholesale defunding and instead advocate for specific reforms; 35% of participants in a 2020 Pew study recorded that the police use the correct amount of force in every situation, compared to 45% in 2016. Likewise, the share of people who believe police treat racial and ethnic groups equally dropped from 47% in 2016 to 34% in 2020, and the share of those who thought the justice system should hold officers accountable when misconduct occurs rose to 44% in 2020, compared to 31% in 2016. A 2018 poll found that two-thirds of people in the United States support banning chokeholds. Most Americans do support disciplining police misconduct and lessening protections against legal action. Seventy-four percent of Americans believe that police violence against the public is a problem, and 42% believe it is a major problem. Nevertheless, only 25% of Americans endorse decreased spending on police forces. In many ways, polling reveals a public misunderstanding of what defunding the police actually means. Polls indicate that people balk at the term “defund the police” but appear more open if directly asked if they support shifting money allocated to police toward specific social services. This Article argues that discomfort with defunding the police is misplaced. Understanding policing as a form of punishment clarifies how reforming policing — including defunding the police — fits within the broader, more widely accepted sentencing reforms that have taken place in recent years. The Supreme Court has refused to recognize policing as punishment, and several scholars have commented on the Court’s failure to do so. Adding to this conversation, this Article asserts that policing is punishment and demonstrates that policing reform is rightly situated within discussions of overall sentencing reform. Sentencing reform supported on both sides of the political aisle recognizes that jurisdictions have spent money on incarceration but have not actually accomplished punishment goals. When resources are re-directed to support legitimate punitive goals better, then not only are resources saved but also systemic racism can be addressed. As it stands, purposeless punishment only serves to support institutional bias. The same is true for retaining the current system of policing. Once one understands that the current policing model in the United States facilitates purposeless punishment, its only remaining plausible objective is to sustain a system of racial oppression. To truly begin eradicating racism in policing, it is imperative to place policing reform in the broader context of sentencing reform and begin approaching all forms of punishment with an antiracist lens.
The pandemic has been especially harsh on the economies of large urban areas. However, even smaller urban communities face significant shortfalls. Meanwhile, a meaningful federal response was slow to materialize. In a functioning federalist system, one might expect the central state to quickly address state and local fiscal challenges that are national in scope. Not only would such funds ensure state and local governments had the money to invest in their responses to the pandemic, but they would also prevent public sector cuts that would otherwise deepen the economic recession. While Washington managed to pass one round of stimulus for U.S. workers and businesses, local governments began making cuts almost immediately. At least some political leaders in Washington seemed to believe that the current fiscal crisis confronting local governments is of their own making. This kind of talk is obviously not grounded in reality, though budget decisions made prior to the pandemic limit local options to respond prudently. The American Rescue Plan passed in March of 2021 provides meaningful federal dollars to assist local governments with revenue shortfalls, but delays in this assistance complicated local governments’ response to the pandemic. Though this unique crisis is the result of public health measures, and recovery depends on the success of such measures, it has also exposed the fragility of local revenue and highlighted the fissures in the U.S. body politic. The problem of local revenue sufficiency is not new, nor is the tendency of state and national leaders to blame local fiscal problems on local choices alone rather than understand them to be the result of decisions made at the local, state, and national levels. This Essay proceeds in three parts. Part I describes the brokenness of U.S. fiscal federalism, which has both devolved significant responsibility to local governments and left them without the fiscal tools commensurate with this responsibility. Part II discusses the ways that local governments have sought to secure own-source revenue in the context of declining state aid and state-imposed revenue restrictions, including the choices cities have made or are considering in their fiscal year budgets for 2021. Part III argues that if localities are really on their own, they should be given the fiscal tools necessary to respond to local problems, including significantly more taxing authority.
Privacy — understood in terms of freedom from identification, surveillance and profiling — is a precondition of the diversity and tolerance that define the urban experience, But with “smart” technologies eroding the anonymity of city sidewalks and streets, and turning them into surveilled spaces, are cities the first to get caught in the line of fire? Alternatively, are cities the final bastions of privacy? Will the interaction of tech companies and city governments lead cities worldwide to converge around the privatization of public spaces and monetization of data with little to no privacy protections? Or will we see different city identities take root based on local resistance and legal action? This Article delves into these questions from a federalist and localist angle. In contrast to other fields in which American cities lack the formal authority to govern, we show that cities still enjoy ample powers when it comes to privacy regulation. Fiscal concerns, rather than state or federal preemption, play a role in privacy regulation, and the question becomes one of how cities make use of existing powers. Populous cosmopolitan cities, with a sizeable market share and significant political and cultural clout, are in particularly noteworthy positions to take advantage of agglomeration effects and drive hard deals when interacting with private firms. Nevertheless, there are currently no privacy front runners or privacy laggards; instead, cities engage in “privacy activism” and “data stewardship.” First, as privacy activists, U.S. cities use public interest litigation to defend their citizens’ personal information in high profile political participation and consumer protection cases. Examples include legal challenges to the citizenship question in the 2020 Census, and to instances of data breach including Facebook third-party data sharing practices and the Equifax data breach. We link the Census 2020 data wars to sanctuary cities’ battles with the federal administration to demonstrate that political dissent and cities’ social capital — diversity — are intrinsically linked to privacy. Regarding the string of data breach cases, cities expand their experimentation zone by litigating privacy interests against private parties. Second, cities as data stewards use data to regulate their urban environment. As providers of municipal services, they collect, analyze and act on a broad range of data about local citizens or cut deals with tech companies to enhance transit, housing, utility, telecom, and environmental services by making them smart while requiring firms like Uber and Airbnb to share data with city officials. This has proven contentious at times but in both North American and European cities, open data and more cooperative forms of data sharing between the city, commercial actors, and the public have emerged, spearheaded by a transportation data trust in Seattle. This Article contrasts the Seattle approach with the governance and privacy deficiencies accompanying the privately-led Quayside smart city project in Toronto. Finally, this Article finds the data trust model of data sharing to hold promise, not least since the European rhetoric of exclusively city-owned data presented by Barcelona might prove difficult to realize in practice.
Responding to Shreya Subramani's Productive Separations with a (qualified) defense of reentry programs.
This Essay occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx students in poor, violence-torn inner-city communities by characterizing the students as disabled. The Essay disagrees with legal scholarship thus far, which posits that using disability law to help these students both stigmatizes them and ignores current disability law’s focus on individual claims. It asserts that concerns about stigma are outweighed by the potential to assist distressed students. Doctrinally, it contends the concern for individual claims is overstated because one major goal of disability law is to remove social barriers to the flourishing of people with dis/abilities. By analyzing the social construction model of dis/abilities implicit within current law, this essay shows that group-based claims like those of the Compton students are a valid use of the class certification power. This Essay’s key contribution to the dis/abilities studies and critical race literatures is the creation of a theory of “intersectional cohorts.” The members of intersectional cohorts share similar self-identities, attributed identities, and identity performances to such extent that it is appropriate to think of them as a discrete and cohesive group in relation to a particular issue. This is a way to explore the meso-level of discrete and cohesive social groups who share multiple identities without devolving into a micro-level theory of each individual or essentializing identities through a macro-level theory of broad social groups. Understanding poor Black and Latinx students in violence-torn neighborhoods as an intersectional cohort shows they have sufficiently shared experiences and responses to their environment to presume they constitute a class that should be certified in the Compton suit and in other similar lawsuits. This approach is supported by the scientific research on Adverse Childhood Experiences (ACEs) and their relationship to complex trauma and disability. We hope this analysis will serve as a model for future theoretical and applied analysis of intersectional cohorts, especially with respect to dis/abilities.
It is the ultimate gift to have one’s work trigger feedback, critique and challenge that expands and deepens the project. Professors Cooper, Huntington, McGinley, Silbaugh, and Woodhouse all have been sources of inspiration for me; their Articles and Essays in response to Reimagining Equality contribute both to my thinking and to the core focus of the book, the well-being, development and equality of all children, but also to the broad focus of this special issue on children and poverty. I am particularly grateful for their challenges and critiques, and their shared focus on the strategies I explore in the book, including statutory, constitutional, and legislative approaches.
This Essay explores the plight of students with disabilities during the COVID-19 pandemic, particularly those enrolled in under-resourced school districts. To address these ongoing disparities, remediate student regression, and prevent further educational loss, we must act quickly to get resources to the students who need it most and to guide districts towards using these resources effectively. This Essay questions whether federal and state governments are truly committed to creatively examining the current special education framework and adopting solutions that will prioritize expanding access to resources for students with disabilities. These solutions include an immediate advancement of funds to aid states and under-resourced school districts in implementing the Individuals with Disabilities Education Act (IDEA), adopting effective guidelines to address educational loss, and closing the digital divide by providing greater access to technology for all students and their parents.
