Note, A Birthright Rearticulated: The Politics of Bilingual Education

This Note addresses Proposition 227, California\u27s recently enacted voter initiative banning bilingual education in public schools. Nirej Sekhon argues that the proposition functions rhetorically as a racially inflected exhortation to nonwhite peoples in the United States. The proposition equates American identity with white identity by claiming English as the birthright privilege of white Americans. As such, the proposition is continuous with the history of language and education politics in the United States. The author concludes by sketching the broad challenge that his analysis poses to current legal mechanisms

Redistributive Policing

Police departments have broad policy-making discretion to arrest some offenders and permit others to engage in criminal misconduct. The way police departments exercise this discretion has harmful distributive consequences. Yet, courts do virtually nothing to constrain departmental discretion. This is because constitutional criminal procedure is preoccupied with individual officer discretion and assumes that the most significant decision moment an officer faces is distinguishing guilt from innocence. I argue that this framing occludes the vast policy-making discretion police departments wield and the central choice they confront: distinguishing between the guilty. This Article identifies the mechanics and anti-egalitarian consequences of departmental discretion. Departmental discretion has three dimensions: geographic deployment, enforcement priority, and enforcement strategy. Through these policy choices, police departments are able to distribute the costs and benefits of proactive policing within a jurisdiction. Case studies of narcotics enforcement and quality of life policing concretely demonstrate how departmental choices create inegalitarian distributive consequences. I argue that courts and other public institutions ought to prevent such consequences. This prescription requires conceptualizing arrests, and proactive policing more generally, in terms of distributive justice. Unlike dominant theories of criminal enforcement, distributive justice offers a normative vision that privileges democratic equality. Distributive justice suggests that, for crimes that are subject to proactive policing, probable cause alone should not justify arrest. Rather, police departments should also be required to demonstrate that a given arrest is part of an egalitarian distribution of such

Note, A Birthright Rearticulated: The Politics of Bilingual Education

This Note addresses Proposition 227, California\u27s recently enacted voter initiative banning bilingual education in public schools. Nirej Sekhon argues that the proposition functions rhetorically as a racially inflected exhortation to nonwhite peoples in the United States. The proposition equates American identity with white identity by claiming English as the birthright privilege of white Americans. As such, the proposition is continuous with the history of language and education politics in the United States. The author concludes by sketching the broad challenge that his analysis poses to current legal mechanisms

Equality and Identity Hierarchy

Equal protection scholars have all but abandoned the possibility that a theory of equality might explain Fourteenth Amendment jurisprudence. I develop just such a theory and use it to elucidate the Court’s reasoning in recent affirmative action and voting rights cases. In these cases, the Court has relinquished categorical colorblindness in favor of race-consciousness under limited circumstances. The Court has justified this approach as necessary for protecting the “individual,” although the Court does not precisely explain what it means when it uses that term. I argue that a theory of equality always depends upon a theory of identity and that the “individual is an example of the latter. The Court uses “individual” to mean a being who experiences civic identity as primary to other identities, such as race, religion, occupation, and so on. “Identity hierarchy” describes this prioritization of civic identity. I rely on liberal political theory to define identity hierarchy and civic identity and argue that both concepts underwrite the Court\u27s recent affirmative action and voting rights cases. I conclude that the Court’s equal protection jurisprudence would have greater analytic integrity if it were to promote civic identity without reliance upon identity hierarchy

Beefeaters

Indian food might seem fancy now, but for one brown-skinned boy in the days before multiculturalism, it was a mark of shame, an invitation to a beat-down. Becoming American, he fantasized, could be achieved with one simple yet terrifying step: the steak. Nirej Sekhon goes among the eaters of beef

Beefeaters

Indian food might seem fancy now, but for one brown-skinned boy in the days before multiculturalism, it was a mark of shame, an invitation to a beat-down. Becoming American, he fantasized, could be achieved with one simple yet terrifying step: the steak. Nirej Sekhon goes among the eaters of beef

Purpose, Policing, and the Fourth Amendment

Fourth Amendment cases are replete with references to “purpose.” Typically, these references pertain to the motivations of individual officers and occasionally to those of public institutions. That courts pay attention to purpose is unsurprising. Across many areas of law, an alleged wrongdoer’s intentions are often critical to determining liability, a remedy, or both. Purpose analysis in Fourth Amendment cases however, is surprisingly confused. The Supreme Court has, without explanation, advanced separate frameworks for analyzing purpose – objective, subjective, and programmatic. The only consistent thing about the three approaches is that they all fail to ensure that law enforcement agents behave transparently and honestly. The failure is particularly worrisome because of the increasingly salient role that purpose analysis has played in recent Supreme Court cases. This Article contends that purpose should be an ex ante institutional design principle rather than what it currently is, a judicial device for ascertaining an actor’s past motivations. A single enforcement bureaucracy should not be responsible for too broad a range of functions, particularly if those functions implicate very different levels of state coercion – for example, enforcing felony narcotics laws as opposed to traffic laws. Modern police departments tend to have sprawling mandates that sometimes make it impossible for policy makers and officers to differentiate and rank distinct goals. Mandate sprawl is particularly problematic because it creates opportunities for pretextual searches and seizures – police have access to a broad range of rationales to justify conduct that was actually carried out for an impermissible motive. Were enforcement bureaucracies required to differentiate enforcement activities by purpose, it would go a long way in curing this problem