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By Siddharth Sonkar*

 

CONTEXT

Last month, in an unprecedented cyber attack on J.W Marriott Hotel’s guest database, data relating to more than five-hundred million guests spanning over four years was stolen. Not only were the hackers able to obtain the personal information of these guests but were also able to obtain sensitive personal information relating to credit cards and passports. The attack on Marriott’s database is one of the largest data security breach in the history of United States. On September 7, 2017, another cybersecurity breach revealed by Equifax led to the compromise of data belonging to more than 148 million customers–almost half the population of the United States. Appallingly, the House Oversight and Government Reform Committee admitted that the Equifax breach was a result of its failure to implement a robust security program to ensure protection to its sensitive data.

 

A GRADUAL REALIZATION OF THE NEED FOR FEDERAL MANDATES

These attacks highlight an endemic problem plaguing the United States–the absence of institutional mandates aimed at ensuring the internalization of cyber-security. At the same time, there is a gradual realization of the need for federal mandates on businesses that handle consumer data. This realization is reflected in the September 26, 2018 hearing convened by U.S. Senate Committee on Commerce on “Examining Safeguards for Consumer Data Privacy.” In this hearing, the need of federal rules on the use, sharing and protection of data was acknowledged in order to facilitate the empowerment of consumers without depriving them of benefits from data flow.

This realization is further reflected in the recently proposed data privacy bill entitled ‘The Data Care Act of 2018’ introduced by fifteen democratic senators including Sen. Brian Schatz, Cory Booker, and Amy Klobuchar to regulate how corporations handle consumer information. In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of stronger state regulation. Interestingly, the Data Care Act does not seek to replace sector-specific laws on privacy but instead, supplement existing state legislation by devising an overarching federal privacy policy harmonizing existing laws and closing gaps within the existing framework.

In this article, I highlight a few anomalies inherent in the proposed Data Care Act in its present form which, in my opinion, may require closer scrutiny.

 

ONLINE SERVICE PROVIDERS AS INFORMATION FIDUCIARIES 

One can trace the conceptual basis of the Data Care Act to Professor Jack Balkin’s paper entitled “Information Fiduciaries”. Balkin describes “information fiduciaries” as online service providers that analyze, collect, use, distribute and sell personal information. Generally, a fiduciary is a person or business having special obligations of loyalty and trustworthiness toward another person. Professor Balkin illustrates this with the example of lawyers, accountants and doctors–all of whom share a special relationship with their clients–one which entails confidence and trust. In the context of data privacy, an information fiduciary would mean a business or person who deals in information instead of money.

Fiduciaries typically have two basic obligations: the duty of loyalty and the duty of care. The duty of loyalty requires the fiduciary to prioritize the interests of the principal in case there is any potential conflict. The duty of care involves ensuring that the fiduciary discharges her obligations diligently ensuring that the interests of the principal are not harmed. Professor Balkin highlights the importance of fiduciary duties in the context of online services by taking the example of Google maps and how it should not suggest a drive past an IHOP as the best route simply because IHOP paid Google to do so.

 

DUTY OF CARE: AGAINST WHAT?

First, the Bill imposes a duty of care on online service providers to protect “individual identifying data” of end-users against unauthorized access. While the term “unauthorized access” is not defined anywhere in the text of the draft legislation, “individual identifying data” has been defined to mean any data which is reasonably linked to an end-user.  An “end user” in turn is defined as an individual availing a service from an online service provider over the internet. Interestingly, there is no explicit requirement of consent to precede processing of data, in stark contrast to the General Data Protection Regulation (GDPR) adopted by the European Union this year. This makes the distinction between authorized and unauthorized access unclear, especially insofar as non-consensual processing of data is concerned. It would be far-fetched to suggest that the term ‘unauthorized’ implies the absence of consent even vis-a-vis the online service provider. Instead of relying on consent, the Bill presupposes that a fiduciary relationship comes into existence when an individual avails a service online. This involves an implied rejection of the consent-oriented framework in determining a breach of privacy.

 

FROM CONSENT TO “DETRIMENT”: A PRUDENT TRANSITION?

Instead of a consent-oriented framework, online service providers owe a duty of loyalty to not use end-users’ data in a way which benefits them while causing detriment to end-users.  However, the conceptualization of detriment could be ambiguous without achieving precision. Besides, who determines whether a particular act of processing of data would be detrimental to the interests of an end-user; whether it would be the fiduciary itself or the Federal Trade Commission as a regulator–is also not clear. If the service provider determines whether any detriment is caused by a particular act, the business could escape liability by arguing that its ex-ante subjective assessment of its act suggested no detriment. On the other hand, if it is the end-user making an ex-post subjective assessment, it could lead to a slippery slope resulting in a floodgate of claims based on detriment. In either of the two cases, a service provider would find it difficult to assess the consequences of processing an end user’s data. This would in turn make the determination of a breach far more uncertain for both the fiduciary and the principal, would be mutually undesirable.

 

A NARROW UNDERSTANDING OF WHAT’S SENSITIVE

Second, the Bill seems to define sensitive personal data narrowly so as to exclude information relating to one’s race, gender, sexual orientation or sex life, transgender status or intersex status. Given the likelihood of individual profiles using such data, it becomes important to include these classifications within the definition of sensitive personal data. Yesterday, the MIT Technology Review published an article which proposed a ‘Bill of Data Rights’ for individuals to claim rights against unreasonable surveillance, behavioral manipulation and unfair discrimination. The absence of the aforementioned classes of data from the categorization of “sensitive data” undermines the seriousness associated with undermining the security of such data, a step away from the achievement of such a desirable set of goals.

 

BREACH NOTIFICATIONS ONLY FOR SENSITIVE DATA?

Third, the Bill necessitates a breach notification by service providers to end-users only when the security of sensitive data is compromised. This means that in case of breach of individually identifiable data, there would be no mandatory breach requirement. The rationale behind a classification between the two in the context of breach notifications is not clear. An end-user should be equally entitled to be notified of a breach if her individual identifiable data is breached, even if the nature of the breach consists of assess to data that is considered less important in relative terms.

 

DEFINITION OF ONLINE SERVICE PROVIDERS: WHAT IF IT’S NONE OF THEIR BUSINESS?

Lastly, an “online service provider” is defined as an entity which engages in interstate commerce over the internet or any other digital network which in the course of its business collects an individual’s identifying data about end users including in a manner that is incidental to the business being conducted. However, it is not clear what is meant by “in the course of business”. Would free services rendered online qualify to mean “business”? It is also not clear why an online service provider restricting its services to a particular state should be excluded from this definition.

In conclusion, while the Data Care Act succeeds in identifying existing problems plaguing the American federal privacy framework, its present form necessitates reconsideration before it is put to vote. The failure to make additional changes could result in losing an opportunity to make businesses sufficiently accountable for protection of customer data.

 

*Siddharth Sonkar is a student of National University of Juridical Sciences (NUJS), India with interests in law, technology, and policy.

By Mark Satta*

Last month, Aaron and Melissa Klein, a couple who owned a bakery in Oregon, asked the Supreme Court to review a ruling from the Court of Appeals of the State of Oregon, which held that the Kleins had violated Oregon state law by discriminating based on sexual orientation when they refused to bake a custom cake for a same-sex wedding. The Kleins, like the baker in the Masterpiece Cakeshop case, argue that such a ruling violates their First Amendment rights.

The Supreme Court’s narrow ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission this past June avoided answering any substantive questions about whether a baker can refuse to bake a cake for a same-sex wedding when doing so would violate the baker’s sincerely held religious beliefs. Given that the Masterpiece decision left unanswered the most contentious questions about how to balance preservation of LGBT civil rights with potential infringement on religious free exercise and free speech rights in situations like this, it is unsurprising that the Court has been asked again to rule on this issue.

This request has been made of a very different Supreme Court now that the opinion writer in Masterpiece, Justice Anthony Kennedy, has since retired and been replaced. Given the new composition of the Court, now is a good time to review what happened in Masterpiece and to think about what the impact the new composition of the Supreme Court might be should the Court choose to hear the Klein’s case.

Upon reading headlines this past June that the Supreme Court sided with baker, Jack Phillips, over the gay couple denied a wedding cake in the Masterpiece Cakeshop case, I was discouraged. But after reading the Court’s opinion, my discouragement faded given the narrowness of the ruling and the substantial amount of common-sense reasoning the Court expressed about balancing gay civil rights with religious freedom rights. Yet I fear that much of that common-sense agreement could be undone if the Supreme Court finds itself without a swing vote.

Because some LGBT civil rights advocates saw Masterpiece as a loss for LGBT civil rights, my optimism about the role Masterpiece may play in the development of LGBT civil rights requiring some unpacking. Here are three reasons why I think the Masterpiece decision allows for cautious optimism.

First, the Court didn’t take a position on the merits of Phillips’ religious freedom and free speech violation claims. Rather, the Court concluded that during the process of reviewing Phillips’ claims, some of the members of the Colorado Civil Rights Commission made statements that “cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.” In short, the Court chose to toss out the ruling of the Commission because of religious bias on the part of some of the Commissioners. Reasonable minds can disagree over whether there really was improper bias. I’m not convinced there was myself. But the issue of whether a statement about the historic use of freedom of religion to justify discrimination is an example of impermissible bias deals more directly with First Amendment jurisprudence, and less directly about LGBTQ civil rights.

Second, the Court’s ruling treated Obergefell v. Hodges—the 2015 Supreme Court case that recognized the right to same-sex marriage—as settled law both in the majority opinion and in Thomas’ concurring opinion. (Although in the case of Thomas this came along with predictions of future conflict between LGBTQ civil rights and religious freedom rights and reason to think he is inclined to favor the latter.)

Third, and most importantly, the Court treated several related issues as settled; and settled in an appropriate way. For example, Justice Kennedy, writing for the Court, stated that “any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”

If the Court sticks to this sort of position, even if the Court were erroneously to determine at a later date that bakers like Phillips could refuse to make cakes for same-sex marriages, such a ruling would not allow for a slippery slope in which gay people could be denied their right to purchase a variety of other items for their weddings, much less denied their right to service more generally.

On the other side, Kennedy also wrote that “[w]hen it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.” If the Court sticks to this position, even if they were to properly determine that bakers who sell wedding cakes can’t refuse service to same-sex couples, such a ruling would correctly not allow for a slippery slope in which clergy, whose profession is typically intimately tied up with religious conviction, would be forced to conduct a ceremony that violated their religious convictions.

With issues like these treated as settled on either side of the issue presented in Masterpiece, I think what we’re seeing in Masterpiece is the Court grappling to determine where the precise line should be drawn in seeking to maximize and preserve both the civil rights of LGBT people and religious freedom rights. Given our current cultural context, I think Masterpiece sits squarely in the center of an unavoidable point of tension between these two kinds of rights. A Court that is struggling with exact boundary lines is one that is often more or less in the right place. It’s important to note that while I think the Court is in the proper area concerning this particular LGB civil rights question, that the Supreme Court, and federal government generally, is still woefully behind in recognizing LGB, and especially Trans, civil rights in other domains.

However, it is hard to tell how much of the Court’s balance this past June was the product of Kennedy as a swing vote sympathetic to LGBT civil rights. While Kavanaugh’s judicial record on LGBT civil rights is scant, by taking a look at those who are endorsing him along with his unartful dodges of Senator Cory Booker’s questions related to gay civil rights during his confirmation hearings, it seems reasonable to worry that Kavanaugh could upset this balance. Kavanaugh could join with the four conservative to give the Court a five-member majority. Justice Thomas, though his concurrence treated Obergefell as settled law, was prescient in identifying that the LGBTQ and religious liberty concerns would “inevitabl[y] . . . come into conflict with religious liberty.” With Kennedy removed and Kavanaugh now on the bench, this conflict’s borders have been called into question. The rising case could reach a Court that is willing to halt, or perhaps even undo, progress in LGBT civil rights.

 

*Mark Satta is a 3L at Harvard Law School and the Executive Online Editor for the Harvard Law & Policy Review.

 

Featured image supplied by Ted Eytan.

By Gina Schouten*

 

I want to argue for a shift in focus in conversations about justice in higher education. Because meritocratic admissions cannot meaningfully promote egalitarian justice, I argue that we should consider using weighted lotteries in admissions decisions, and that we should reform the culture of colleges and universities to make it likelier that students will conscientiously use their education to promote projects of social value. Before the argument, two matters of stage-setting.

First:

The “traditional” view among political philosophers has it that the subject matter of justice is the institutional structure by way of which “the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation.”[ii] Plenty of other political philosophers dispute this institutional view about the subject matter of justice, but let’s assume that justice is, at least principally, a virtue of institutions.

Whatever the correct principles of justice demand, they demand it of the institutional structure as a whole, not of each particular institution within it. Suppose for example, that the correct principles of justice specify that no social and economic inequalities are permissible unless those inequalities are attached to positions that are open to all under conditions of robust equality of opportunity, and unless those inequalities make the least advantaged members of society better off than they would be under any other institutional arrangement.[iii] This does not mean that each particular institution of society must realize those principles internally; rather, each must participate in a division of institutional labor such that the institutional structure as a whole realizes those principles.

Consider, in broad outline, what an ideally just institutional division of labor between primary schools and higher education might plausibly look like: First, because early educational experiences largely shape later educational outcomes and because families differ in their capacity to equip children with the resources to achieve desirable outcomes, in an ideally just society, institutions of primary education would prepare all students to attain further educational goods. Presumably, this includes ensuring that all children enjoy fair opportunities to become meritorious along the dimensions of merit that subsequently inform admissions decisions in selective higher education. Second, in an ideally just institutional division of labor, other social institutions—family support regimes and labor markets, for example—would be arranged such that primary educational institutions can prepare all students in these ways: Those other institutions would ensure that no student enter schooling so inadequately prepared that she cannot be given a fair shot. Third, in an ideally just society, selective institutions of higher education (assuming they exist at all) would be tasked with responding fairly to developed merit, and with educating students for skilled and ethical public service.

In short: Principles of distributive justice plausibly demand some version of egalitarianism; but in order to realize those principles at the level of the structure of social institutions broadly, it is neither necessary nor sufficient that each particular institution realize those principles internally.

Second matter of stage-setting:

The division of labor just described was idealized. I described what each institution might be tasked with contributing to the project of realizing distributive justice at the level of the institutional structure, on the assumption that every other institution is doing its part too. But what we really want to know when we think about education policy is how to move from an unjust status quo to something more closely approximating realization of principles of justice—and what role education as a sector of society has to play in that project.

In that context, the point about institutional division of labor has different implications. Under our unjust status quo, early educational experiences still largely shape later educational outcomes, but no social institutions effectively work to equalize the capacity of different families to equip their children with the resources to become well-educated. For example, no effective tax-and-transfer system ensures that children will be free of the kinds of economic hardships that make it very difficult for them to learn. Primary education institutions cannot reasonably be expected fully to compensate for these stark inequalities in preparation that students bring with them into the classroom, and so students do not enjoy equal opportunities to become meritorious along those dimensions of merit that are treated as relevant in subsequent competitions.

This in turn has implications for selective higher education: Given injustice in other spheres of society, in order for institutions of higher education to play a meaningful role in nudging us toward justice, those institutions must do more than they would need to do merely to play their role in maintaining justice once achieved—they must do more than award access on the basis of merit and prepare students to perform well in the positions they’ll subsequently occupy.

The argument for this is simple, at least in outline:

Given that students have vastly unequal opportunities to become meritorious, even perfectly meritocratic selection procedures for scarce positions subsequent to primary education do not meaningfully promote the extent to which equal opportunity prevails in society broadly. Indeed, when those scarce positions are themselves a gateway to still further advantage, perfectly meritocratic procedures will serve only to exacerbate inequalities that are impugned by egalitarian principles of justice. To meaningfully promote justice, we must do something more.

The argument relies on two premises: first, that injustice in other spheres of society means that developed merit is unfairly distributed; second, that higher education serves as a gateway to still further advantages.

Support for the first premise has already been set, in describing the breakdown of the ideally just institutional division of labor. In our society, social class background heavily influences one’s achievement in primary and secondary education, which in turn largely influences one’s prospects for successfully securing admission to, and persisting in, higher education. As a result, selective colleges and universities disproportionally educate already advantaged students.

And few would deny the second premise: Colleges and universities confer still further advantage upon those students. Advantages include skills and credentials that are instrumentally valuable in securing jobs, as well as opportunities for intrinsically valuable learning experiences. Even among the pool of selective colleges and universities, social and economic background strongly influences the sort of institution one attends, the support one has—and conversely, the debt one incurs—while there, and the degree of advantage one acquires from attendance.

In these ways, selective institutions of higher education can amplify already entrenched social inequality. Even if we have hit upon the correct criteria of merit, and even if we carefully incorporate educationally-valuable considerations of diversity and inclusivity, our institutions will effectively select for already-advantaged students and then will confer still more advantage upon them. Higher education cannot play a valuable role in an institutional division of labor that bends the arc toward justice simply by living up to the demands it would incur in a fully just society. Neither can it play such a role simply by realizing principles of justice internally—for example, by allocating admissions spots on the basis of a principle of equal opportunity.

Maybe the conclusion to draw is that higher education as a sector of society can do little more than minimize its contribution to injustice. Even by implementing policy that removes all cost barriers to access, even by practicing affirmative selection procedures, even by expunging all anti-meritocratic practices and maintaining a steadfast commitment to supporting vulnerable students, we may not meaningfully move the arc toward justice. We only lessen our contribution to keeping it stuck where it is. But those of us who work within higher education often talk as if our institutions can do much more than this. We talk as if (suitably reformed) institutions of higher education can play a valuable positive role in nudging our society toward justice.

If we are committed to taking that possibility seriously, and if the pessimistic argument sketched above is sound, then we need to rethink our standard arsenal of allegedly justice-promoting policy tools. If unequal opportunity to develop merit means that each cohort is comprised disproportionally of students who have enjoyed unfairly large shares of opportunities to become meritorious, then the standard arsenal of policy tools like meritocratic or affirmative admissions and retention practices can do little more than lessen the extent to which institutions of higher education exacerbate injustice in the social structure broadly. To defend the conviction that higher education policy and practice can play a meaningful role in promoting a just institutional arrangement, we need to get creative and get bold. We need to continue to work toward fairer enrollment practices, but we need to recognize that the progress we can make through (meritocratic) admissions is limited by pervasive injustice in other social institutions. So long as so many of our students have enjoyed such a leg up prior to applying for college, and so long as college gives students a further leg up relative to those who don’t attend, we shouldn’t rest our hopes on better meritocratic admissions.

Here are two possibilities. They might be unworkable, but they give a sense for what it would take to make our policy live up to our aspirations for higher education to further the cause of social justice.

First, rather than propagating the ideal of perfectly meritocratic admissions that in reality track prior access to advantage, colleges and universities could specify a threshold of excellence and preparedness above which applicants are admitted by lottery. Randomization could be adjusted to secure the kind of demographically-diverse student body that’s crucial for a productive learning environment. As with any selective admissions processes, such a lottery will result in plenty of worthy candidates being excluded. And, as with any selective process, those who are selected will enter higher education largely as a result of good fortune. But by randomizing admissions above a threshold, we make manifest that those admitted enjoy access to that institution largely as a result of good fortune.

Second, if we want institutions of higher education to make a meaningful contribution to bending the arc, then we need to look not only beyond meritocratic admissions but beyond enrollment management altogether. Students admitted as part of a lottery will be less seduced by the fiction that their admission was due entirely to themselves and in no part to unearned good fortune. This can help us change the very culture of higher education. I propose that we think more about what it would look like were we explicitly to undertake to do just that. How might we use the curricular and extracurricular experience of higher education to promote a culture of justice among our students? I won’t spell out in detail what this change in culture might look like, beyond saying that I think it would call for significant change to teaching, advising, and institutional practices. Attending college—and particular, attending an elite, selective college—confers advantages that we cannot in good faith regard as wholly earned by those who enjoy them. If that’s right, then we cannot leave unchallenged the notion that higher education is legitimately treated as principally a means of self-enhancement. We certainly cannot encourage that notion.

The broader point I want to make is this: Reforming higher education to promote justice in our unjust society is a more demanding undertaking than much of our policy discussion about justice in higher education suggests. Meritocratic admissions and enrollment management policies are not enough; nor is preparing students to exercise “professional ethics” within labor markets and political structures as they are. Maybe we cannot create an educational culture of justice without practicing objectionable indoctrination. But it is worth considering.

This post is drawn from a longer work-in-progress in which I more fully defend the argument sketched here. That paper is available from the author upon request.

[ii] John Rawls, A Theory of Justice (Oxford University Press, 1999), 6.

[iii] John Rawls, Justice as Fairness: A Restatement (Harvard University Press, 2001), 42.

 

*Gina Schouten is an Assistant Professor of Philosophy at Harvard University.

By Shanna Cleveland*

When faced with an investigation by the New York and Massachusetts attorneys general over whether or not they misled investors, consumers, and regulators on the impact of climate change, Exxon went on the offensive.  It filed a federal lawsuit arguing that the investigations into potential violations of securities and consumer protection laws was a pretext to prevent Exxon from exercising freedom of speech.

Courts have roundly rejected Exxon’s attempts to cloak its commercial speech in the cloth of the First Amendment, but with annual revenues exceeding those of nations like India, Switzerland, and Norway, Exxon has continued to pay white shoe law firms to press its frivolous claims all the way to the Supreme Court.

Despite the legal infirmities of its case, Exxon has been emboldened by what Justice Kagan described as the “weaponization of the First Amendment” by the most corporate-friendly makeup of the Court since the Gilded Age. Nonetheless, Exxon’s claims would require the Court to discard key principles of First Amendment law that it has yet to reject, and they would require Justices who are normally staunch defenders of states’ rights to effectively extinguish one of the central powers of the chief law enforcement officers of states—the power to investigate fraud.

If Exxon gets its way, as Justice Kagan warned, it will “unleash[] judges, now and in the future to intervene in economic and regulatory policy,” allowing “black-robed rulers” to override democratically enacted protections for citizens like securities laws and consumer protection laws.

But Exxon’s arguments fail even the most basic test: identifying what speech it believes qualifies for protection under the First Amendment and why. Under questioning by Judge Caproni, Exxon claimed that “no one is disputing the ability to conduct an investigation into fraud.” And yet, Exxon’s arguments call on the court to halt investigations into securities and consumer fraud based on, in the words of the court, “extremely thin allegations” that the mere investigation of the company’s statements violates the First Amendment because climate change is an issue of public debate.

At most, Exxon’s speech amounts to commercial speech. Although the Supreme Court has extended some limited protection to commercial speech, it has also explained that the First Amendment affords commercial speech less protection than political speech. In fact, no court at any level has held that a corporation whose securities are publicly traded can use the First Amendment to avoid regulations of the financial markets that bar materially false or misleading speech. Nor have the courts recognized any “political controversy” exception to the application of securities laws. Indeed, such laws often regulate communications that are of public interest including statements about the company’s prospects as a result of politically motivated regulatory changes ranging from environmental protections to foreign relations.

Exxon is not the victim here. Instead, the real victims are the investors who purchased or retained Exxon’s securities on the basis of the company’s claims about how it manages its portfolio to avoid any risks related to climate change and the consumers who bought Exxon products because of the company’s advertisements about its environmental performance.

*Shanna Cleveland is Senior Counsel at Free Speech For People and co-counsel on an amicus brief, filed in the U.S. Court of Appeals for the Second Circuit, challenging Exxon’s First Amendment claims.

Image is of the Joliet Exxon Mobil Refinery courtesy of airguy1988.

By Leah M. Adams*

 

As 2018 draws to a close, we are left with just one year to fulfil the 2020 vision of the National HIV/AIDS Strategy (NHAS), a set of goals for HIV prevention and treatment that was created by the White House in 2010, and then updated in 2015. To be sure, the priorities and action steps outlined in the NHAS are lofty, and include aims such as 1) reducing the number of new HIV infections, 2) establishing seamless systems to link people to and maintain them in care, 3) targeting stigma and relying on structural approaches to curb HIV- and health-related inequities, and 4) improving the coordination of HIV monitoring and care on a national level. Given that we are nearing the finish line, it’s time to ask ourselves: how are we doing? It turns out, there’s no easy answer to that question.

 

What’s Going Well?

There has been remarkable progress in the fight against HIV/AIDS, with successes in treatment and in prevention. The idea of HIV as an automatic “death sentence” is fading from speech, as medical advances have helped people not only live longer, but also thrive with the disease. Scientific evidence has clarified that better outcomes are obtained by initiating highly active antiretroviral therapy (HAART) immediately after diagnosis, and we now know that if viral suppression is maintained, HIV cannot be transmitted to HIV-negative partners. With regard to prevention, there has been a sustained decline in the overall number of new cases of HIV each year (from an estimated 41,800 in 2010 to 38,500 in 2015). One of the biggest recent successes in prevention has been the discovery and implementation of pre-exposure prophylaxis (PrEP). PrEP is a biomedical HIV prevention regimen in which people who are HIV-negative take a daily dose of antiretroviral medication in order to reduce their risk of contracting the disease. When taken as prescribed, PrEP significantly reduces the risk of HIV acquisition, and is poised to be a key component of continued prevention efforts.

 

A Long Way To Go

Despite these gains, the national response to HIV/AIDS has had significant shortcomings. HIV-related disparities exist across the care continuum – HIV-positive racial/ethnic minorities are less likely to be retained in care or achieve viral suppression, and are more likely to die of AIDS than their white counterparts. Although the overall number of new HIV diagnoses has decreased, rates have actually increased among black and Latino gay and bisexual men.⁵ The South, formerly the region with the second lowest proportion of new HIV cases (16%), now accounts for almost half of all new diagnoses. This steep ascent has been the result of many interacting social, structural, and political forces. For example, the South has lower rates of health coverage, higher rates of poverty, and lower state-level contributions to HIV/AIDS assistance programs than other region — characteristics acting independently and jointly to contribute to the elevated HIV rate. PrEP, with all of its potential to be a gamechanger in eradicating HIV is not yet scalable, and has not met the need of the estimated 1.1 million people who could benefit from it. Further, there is mounting evidence that PrEP, as it is currently being implemented, could exacerbate existing HIV-related disparities. The vast majority of prescriptions have been to white gay or bisexual men who live on the West Coast or in the Northeast, and knowledge/trust of and access to PrEP remain significant barriers to uptake among racial/ethnic minorities, transgender women, and other groups at elevated risk for HIV. It is also difficult to address our progress in combating HIV/AIDS without considering co-occurring epidemics like the opioid crisis. The opioid epidemic, which is wreaking havoc in rural areas as well as urban communities, has helped to usher in a 133% increase in the rate of hepatitis C infection, a disease that commonly co-occurs with HIV and has the effect of worsening HIV-related outcomes. These issues have shared vulnerabilities and are certainly linked, but targeting only one won’t fully resolve the other.

 

What’s Next?

Hope is not lost. There is reason to believe that we can eradicate HIV/AIDS, even in the absence of a cure, but it won’t happen on its own or by accident. We must be intentional in our efforts to combat HIV/AIDS and we must continue to devote local and national resources to the fight. Congress’ recent rejection of President Trump’s proposed cuts to national ($40 million) and global (> $1 billion) HIV-targeted funding represents a welcome a necessary commitment to this endeavor. Still, allocating the same fixed amount of resources in the same way likely won’t solve the problem. HIV/AIDS is a unique disease – it carries with it a loaded history that has revealed some of the nation’s deepest prejudices and has disproportionately affected some of the most marginalized among us. A successful strategy to end HIV as we know it must acknowledge and address this reality. Health is more than the absence of sickness, and a comprehensive HIV/AIDS strategy must recognize the social, environmental, and political context in which the person and the disease exist.

 

* Leah M. Adam is an Assistant Professor of Psychology and Women & Gender Studies at George Mason University.

 

Alexandra Rawlings*

Since European settlers arrived on Turtle Island (North America), they have attempted to assimilate and exterminate the Indigenous peoples of this land. The United States government policy of “kill the Indian, save the man” aimed to eradicate Native languages, sacred knowledge, and family (and thereby governmental) structure, and replace them with those of the colonizer. Just as Native education policy was once embedded in the broader colonial agenda of “civilization,” Tribal leaders today call for reforms to Native education with the ultimate goal of strengthening and protecting tribal sovereignty. Recent legislation in Plateau and Coast Salish Territory (Washington State) offers a promising model for answering these calls of Tribal leaders, though it is still only one step forward in building the future that will benefit the next seven generations. Before delving into the specifics of this state-level education initiative, we should first revisit the history of Native education policy in the U.S. in order to properly contextualize these efforts.

 

Assimilation Era Boarding Schools

The purpose of Federal Indian policy in the late nineteenth century was to bring “civilization” to the indigenous inhabitants of Turtle Island. Religious authorities, and later, the Bureau of Indian Affairs (BIA), established off-reservation boarding schools removing Native children from their families, homelands, and tribes. Settler educators believed that such removal was necessary in order to teach Native children to abandon their savage Indian ways and integrate into settler society as civilized people. Native children who attempted to retain their heritage by speaking their mother tongue or practicing Native religious ceremonies were severely punished with beatings. Boarding schools were an attempt to “kill the Indian and save the child” by forcibly stripping away Native identity and culture, and providing “useful” vocational education. Note that these boarding schools have never closed, but rather have transferred administration.

 

Tribal Self-Determination Era Federal Legislation

In the 1960s, Federal Indian policy began to shift from one of assimilation and termination to one of Tribal self-determination.  Congress first expressed its commitment to Native education in the 1965 Elementary and Secondary Education Act (ESEA). A few years later, Congress passed the Indian Education Act of 1972 and established the Office of Indian Education within the Department of Education. The Indian Self-Determination and Education Assistance Act of 1975 provided for tribes to gain greater control over BIA funded schools. In 2001, the ESEA was amended and reauthorized by the No Child Left Behind Act (NCLB). The NCLB added Title VII to the ESEA which provides additional funding to address the “unique educational and culturally-related academic needs” of Native students. The NCLB was replaced in 2015 by the Every Student Succeeds Act (ESSA), and remains the primary source of federal funding for K-12 education.

Despite the best intentions of Congress, these pieces of legislation have failed to significantly improve educational experiences and achievement among Native students. Major reports since 1928 demonstrate little improvement in the education of Native children, particular in regard to tribal cultures and identities through adequate Native language instruction. U.S. Senate reports do not mention the pernicious history of boarding schools, and instead tout a “centuries-old tradition of attempting to ensure the education of Native children.” No doubt this refusal to acknowledge the violent history of Native education severely limits the conversation on appropriate remedies.

 

The Current Landscape

Growing numbers of Native peoples live off reservation, particularly those of mixed ancestry. The educational needs of Native students, however, do not stop at the reservation boundary, and states play an increasingly significant role in educating Native students. Currently only 7% of Native students attend BIA schools, while the overwhelming majority (93%, or approximately 620,000) attend state public schools. In Washington State, Native American and Alaska Native students (including those of mixed ancestry) comprise 6.2% of the K-12 school student population (approximately 64,000 students). These students are spread out across Washington’s 322 public school districts, with the vast majority (296 districts) reporting at least one Native student enrolled in their district. For many years, these school districts have failed to meet the educational needs of Native students: Native students have the lowest on time and extended graduation rates, and they have the highest annual drop-out rate of approximately 25%.

 

Since Time Immemorial: Tribal Sovereignty Education in Plateau & Coast Salish Schools

In response to these alarming statistics, failed proposed federal legislation, and the calls of Tribal leaders, Washington lawmakers passed a law in 2005 “encouraging” school districts to collaborate with local tribes to teach tribal history and culture. In the following years, the Tribal Leaders Congress on Education, the Washington State School Directors Association, and the Office of Superintendent of Public Instruction (OSPI) developed tribal sovereignty curriculum, Since Time Immemorial: Tribal Sovereignty in Washington State, and made the lessons available for public use. The Since Time Immemorial curriculum was subsequently approved by all 29 of the federally recognized tribes in Washington State.

However, only three school districts and a handful of additional schools voluntarily adopted the new curriculum and made efforts to consult with local tribes. In 2015, the state legislature passed a new law “[r]equiring Washington’s tribal history, culture, and government to be taught in the common schools,” rather than merely encouraging it. Tribal sovereignty education is now mandatory in Washington State public schools. The 2015 legislation marks a clear departure from the 2005 law that couched its goals primarily in terms of “closing the achievement gap” between Native and non-Native students. In contrast, the language of the new legislation is rooted in commitment to tribal sovereignty, and acknowledges the importance of Native students’ educational experiences relative to that commitment. The curriculum itself provides information and lesson plans that facilitate learning with native peoples rather than about them. It is aimed at helping students answer five central questions:

1. How does physical geography affect the distribution, culture, and economic life of local tribes?
2. What is the legal status of tribes who negotiated or who did not negotiate settlement for compensation for the loss of their sovereign homelands?
3. What were the political, economic, and cultural forces consequential to the treaties that led to the movement of tribes from long established homelands to reservations?
4. What are ways in which Tribes respond to the threats and outside pressure to extinguish their cultures and independence?
5. What do local Tribes do to meet the challenges of reservation life; and as sovereign nations, what do local Tribes do to meet the economic and cultural needs of their Tribal communities?

The depth and complexity of materials provided to students increases with each grade level. In addition to providing the tribal sovereignty curriculum, the Office of Native Education and the OSPI provide trainings to assist educators in successful implementation of the new curriculum, and provide curriculum support materials, compatible for use with Since Time Immemorial. Though schools are required to utilize Since Time Immemorial lessons, they are allowed, and even encouraged, to modify elements to ground the lessons in a particular locality.

To facilitate this grounding effort, and to strengthen relationships with local tribes, the OSPI provides a list of the name(s) of the closest tribe(s) to each school district, as well as the contact information for each of the 29 federally recognized tribes in Washington State. Now when reviewing or adopting new social studies curriculum, school districts are required to incorporate the tribal history, culture, and government of the nearest federally recognized tribe, and must work collaboratively with the tribes to develop materials and programs.

Forming these crucial relationships has reportedly been the most challenging aspect of implementing the curriculum so far. During the first year of its mandatory instruction, only 30% of Washington school districts taught the Since Time Immemorial curriculum. However, these numbers appear to be rising and engagement with tribes and creation of unique, local programming is only growing.

 

The Future of Reparations, Education, and Tribal Sovereignty

Much of the language of federal and state legislation directed at improving the education of Native youth has been couched in terms of “closing the achievement gap” between Native and non-Native students. However, it should be very clear that these statistics should be used as “a launching point to examine the multi-dimensional phenomenon of race in Washington,” and not a definitive paradigm. Tribal leaders urge that classifying Native students as “deficient” because they do not perform the same way as their white peers within a colonial institution presents significant bias toward white, male, middle class values. Normative definitions of success and achievement do not escape these biases.

Rather than framing the goal as improving the education of Native students in order to close the achievement gap, Tribal leaders emphasize the unique status of Native youth as dual citizens and future leaders. This unique status necessitates a government-to-government relationship between schools and tribes as required by the Washington state statute. In addition to enhancing the educational experience of Native students, tribal sovereignty education provides the groundwork to shift the mainstream consciousness regarding tribes, encouraging greater protection of tribal sovereignty by non-Natives, too.

In recent decades, the prevailing myth of the uninhabited, pristine New World and the “no-fault history” that it invokes has provided the basis for dismissing Indigenous claims for decolonization, nationhood, and sovereignty. Erasure of the indigenous peoples of Turtle Island renders these claims invalid and unnecessary in the minds and actions of policy makers, judges, and citizens. Conversely, honoring treaties, repatriation, and payment of reparations will require extensive education and all of our full support and active participation.

Collaboration has been an essential element at all stages of implementing tribal sovereignty education in Washington State: the political work of passing the legislation, the curriculum development, and the ongoing government-to-government relationships between tribes and schools. Reparations in the form of full embrace of tribal sovereignty will likewise be a collective process. While mandatory tribal sovereignty education is a landmark step forward, reparations in this context are far from complete.

Assimilation era policies and boarding schools were an attempt to eradicate Native cultures, Native resistance, and tribal sovereignty. That effort failed and Tribal leaders today advocate for education that incorporates tribal participation at every level – from legislation to classroom discussion. Tribal sovereignty requires not only Native voices in the content of curriculum, but the active cultivation of government-to government relationships between schools and tribes. The Since Time Immemorial legislation provides a promising model for cultivating these relationships beyond formal educational institutions and brings us closer to a society that recognizes the inherent legitimacy of Indigenous peoples and their right to sovereignty.

*Alexandra Rawlings is a 3L at Harvard Law School.