tulr monthly november 2015

7/24/2019 TULR Monthly November 2015

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The mission of the Texas Undergraduate Law Review is to enrich the

education of Texas undergraduate students by providing a forum to

develop skills essential to legal scholarship.

We seek to raise awareness of current legal issues, to encourage and

facilitate academic discourse, and to uphold the values of learning,

discovery, leadership, academic integrity and scholarly research.


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Critical Mass

By TARAL PATEL AND ZACHARY STONE

Universities implement a wide variety of affirmative action regulations to

promote a diverse student body. In Texas, the Top 10% plan allows all high school

graduates who are in the top 10 percent of their class to automatically gain admission to

Texas A&M University and the University of Texas at Austin (although this has shrunk

to 8% or 7% in recent years). This strategy guarantees geographic diversity and accounts

for a majority 70 percent - of UT students. By extension, the Top 10% plan promotes

racial and socioeconomic diversity, because those demographics correlate strongly with

geography.

However, UT has been in the news in recent years because of how it goes about

admitting the remaining 30 percent of its class. In Fisher v. University of Texas, the

Supreme Court honed in on the part of Texas affirmative action program that

specifically allows the University to factor in race amongst other elements in the

admissions process. This aspect of the admissions program is designed to allow enough

minority students over time to one day reach a critical mass. The critical mass theory is

derived from nuclear physics where you have a specific amount of a fissile element to

sustain a chain reaction. The Court found that this approach is consistent with Strict

Scrutiny, a standard of judicial review used to weigh and measure cases of constitutional

infringement through various types of criteria. The Court further decided UT can

discriminate based on race - so long as the discrimination is narrowly tailored to promote

a compelling government interest (one of the criteria required with Strict Scrutiny), and


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the government interest could not be accomplished through non-discriminatory means.

The narrow tailoring is race-based affirmative action, and the compelling government

interest, then, is a critical mass. This is the concept that stole the spotlight when

Abigail Fisher sued under the grounds that UTs consideration of race in the application

process violated the Fourteenth Amendments Equal Protection Clause. Ms. Fisher lost at

the district and appellate courts, and she lost the Constitutional question at the Supreme

Court. Affirmative Action, they said, is still legitimate under Strict Scrutiny. But the

Court did ask the appellate court to re-evaluate whether UTs specific policy is narrowly

tailored for a compelling government interest. The appellate court came back and agreed

that universities may use race as part of a holistic admissions program where it cannot

otherwise achieve diversity.1 Also upheld was the notion that UT is appropriately

pursuing a critical mass.

Fischer appealed to the Supreme Court once more, and they took up the case. A

primary aspect of most affirmative action cases throughout the US history is that

tangible, numeric quotas of minority students at universities are illegal. The court has

adamantly rejected any quotas designed to mandate diversity. This is where the concept

of critical mass comes in. Critical mass is rooted in the theory that by admitting a few

minority students, there are no major increases to the benefits of diversity; only having a

few students leads to racial isolation and an incredibly burdensome role for those

minority students. Furthermore, bolstering diversity levels over token margins

promotes cross-racial understanding, helps to break down racial stereotypes and

enables [students] to better understand persons of different races, which all highlight

1www.usnews.com/news/articles/2014/07/15/appeals-court-upholds-university-of-texas-at-austins-affirmative-action-admissions-policy


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the educational benefits from having a very diverse student body2. Thus, the critical mass

entails a turning point on diversity when there are enough minority students to ensure an

impactful educational outcome for all but not feel isolated themselves.

Critics and supporters of affirmative action agree that the critical mass is an

incredibly vague concept, but they find that important for different reasons. While the

critical mass theory makes perfect sense in the context of nuclear fission because each

particle added into the reaction is the same, it does not in the legal-academic arena where

each student is different.

However, the courts specific focus on avoiding numerical metrics makes the

concept of a critical mass hard to truly understand in a practical setting. Particularly, it

makes it hard for schools to set legally-acceptable policies. Critics like Fisher argue that a

critical mass of minorities is reachable without race based applications. Others argue that

it will be impossible to know if weve reached a critical mass because it is an incredibly

vague and nebulous concept. While the Supreme Court spotlights the critical mass as

theory needed in its deliberations, it misses the fundamental reason of using race in

admissions proceedings. The difference between this scientific concept and race in

admissions is put well by the Linda Greenhouse of the Economist: Unlike students,

every atom of plutonium is identical: it doesnt matter whether you throw this lump or

that lump into a reactor, the chain reaction will be sustained if the right amount is added,

full stop.3Admissions departments across the nation want to take in students who

represent various backgrounds, merits, and passions. Through Texass affirmative action

2https://www.law.cornell.edu/supct/html/02-241.ZO.html3http://www.economist.com/node/21609745/print


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program, they also want minorities to access higher education while promoting the

educational benefits that come with having a diverse classroom.

It is truly difficult to know whether a school is appropriately pursuing a critical

mass. Considering race as one factor in a holistic process should, by the Supreme Courts

standard, by acceptable to achieve and maintain a critical mass. In trying to guide

universities, the Court has given schools a blanket of university protection. Because a

school can almost always claim that its holistic policy is geared toward a critical mass,

few systems are deemed

Unconstitutional. Because of this and the vagueness of the term, the Court is unlikely to

argue that UT is not pursuing a critical mass. The Court has not provided a legal standard

to evaluate if a school is pursuing a critical mass or not. Legal standards are more

tangible, enforceable, and have players who clearly fall on either side. The critical mass

argument does not fulfill any of those criteria required in a legal standard. The Court has

merely given an ethic to consider in good faith regard how aggressively a school wishes

to promote a diverse student body.


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Deteriorating Conditions for Women and Children in Detention Centers

By SHRUTHI PRABHU

In 2009, the Obama Administration shut down the the largest family immigration and

detention facility in the nation, T. Don Hutto Facility, after years of controversy over its

conditions and the need for overall improved family detention.4However, in the summer of

2014, thousands of refugees came to U.S. borders to flee violence and organized crime in

Central America. A great majority of those fleeing were women and young children who had

been the victims of gang violence, state violence, organized crime, and domestic violence in

El Salvador, Guatemala, and Honduras.

5

It is these conditions that raise a human rights

concern and push for the need for an alternative to detention centers for women and children

in America.

It is estimated that about 39,000 immigrants, mostly women and children, have

been making the dangerous journey to the U.S. since October 2013.6Traditionally,

Customs and Border Patrol would hold immigrants until a transfer could be made to

Berks Family Residential Center. With only 85 beds, Berks was unable to take in the

volume of immigrants held by Customs and Border Patrol. This meant that thousands of

people were being held long-term in detention facilities that were not built to

accommodate extended stays.7

Many of these detention centers negatively impact women and children. At

Artesia Detention Facility in New Mexico, the first large-scale family detention center

4Locking Up Family Values, Again (2014).5Family Detention - Background Document. (n.d.). Retrieved March 9, 2015, from

http://womensrefugeecommission.org/resources/document/1087

6Costly Family Detention Denies Justice to Mothers and Children. National Immigrant Justice Service.

7Frequently Asked Questions: The Exodus of Families from Central America. Lutheran Immigration and

Refugee Service.


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opened in response to the influx of Central American refugees in 2014, children

experienced severe physical ailments and mothers struggled to maintain family structure

due to constraints set by the facility.8 Such conditions can leave these women and

children maladjusted to society when they are released from the detention centers. The

human rights violations that stem, consequently, are frequent.

These detention centers are often in remote locations, which raises concern

because this limits access women and children have to legal services that could help

expedite their transition from life in a detention center into life as a fully integrated

individual in society. According to the standard set by the United Nations Office of the

High Commissioner for Human Rights, limited access to legal counsel violates Principle

18, which provides that those being detained should have that access.9

One alternative to detention centers is release on bond or bail. This requires a

deposit of some amount to ensure the asylum seeker appears at court and complies with

all immigration requirements. Although this money is returned after all proceedings and

court appearances, it is too

big of a financial strain for

asylum seekers, the great

majority of this issues

focus. If this alternative is

to be used, it should be

calculated on a fair, case-

by-case basis. The Canada

8"Stop Detaining Families." National Immigrant Justice Center.9"Working Group on Arbitrary Detention." Office of the High Commissioner for Human Rights

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bondsperson system is a great example of the use of this alternative.10

Another alternative discussed is community-based supervised release or

community supervision. This alternative provides a range of community-based

environments with varying supervision. The first community-based supervision

conducted by community organizations or non-governmental organizations, followed by

government organizations, and finally government-administered alternatives (which

usually require something similar to bail).11

The community supervision option provides a cheaper alternative to detention,

while also maximizing the asylum seekers liberty. Its implications in ameliorating the

human rights violations caused by the deteriorating conditions of detention centers are

many. Women and children, therefore, would benefit from its implementation.

10Edwards, A. (2011, April 1). No. 17: Back to Basics: The Right to Liberty and Security of Person and

'Alternatives to Detention' of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants.

11Edwards, A.


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Global Ivory Regulations

By ASHLEY ALCANTARA

In the past two years, America and China have

both made great and necessary strides in

reducing ivory trade and protecting elephant

populations. These efforts are imperative as it

is estimated that less than half a million

elephants remain in Africa, and about 35,000

elephants are killed annually.

12

In September,

China and the US announced they would both

work towards nearly complete bans on ivory

imports and exports. 13 This was

extraordinarily important as the two countries

have the highest demand for ivory. Further,

the largest demand for ivory by far comes

from China, making their actions even more

important.14Early this year, China announced

12Mashberg, Tom. "Limits on Ivory Sales, Meant to Protect Elephants, Set Off WideConcerns." The New York Times. http://www.nytimes.com/2014/03/21/arts/design/new-limits-on-ivory-sales-set-off-wide-concerns.html?_r=0 (accessed April 15, 2014).+N.994Gbb/$=6:/397"/32


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it would also work to end domestic trade of ivory.15

In 2014, the White House announced

a complete ban on commercial imports of elephant ivory and limited commercial exports

of elephant ivory to proven antiques. It notably shifted the burden of proof for

determining if an item is an antique, meaning it is at least a hundred years old, from the

government to the items owner. Similarly, non-commercial imports are only permitted if

they can be proven to be antiques. In July of this year, the US announced further

restrictions which ban the sale of ivory across state lines and further restrict commercial

exports.16These strict regulations are necessary due to the history of the ivory trade and

have the ability to protect elephant populations.

In 1998 the international community listed African Elephants in Appendix I of the

Convention on International Trade in Endangered Species of Wild Fauna and Flora, or

CITES, and of the treaty. Previously elephants had been listed in Appendix II of the

treaty, which allowed for legal trade of ivory that was regulated.17However, the move to

Appendix I banned trade of ivory, but allowed countries to apply to have their elephants

populations moved to Appendix II listing in the future.18

However, the effectiveness of CITES has been impeded globally because it is

difficult to refute a claim that ivory was imported prior to 1989, which can still legally be

traded. This challenge is even further exacerbated by the Thai loophole. In Thailand it

is legal to obtain ivory from the tips of tusks from living elephants or the tusks of

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elephants that have died naturally. As a result, smuggled in ivory from African elephants

can be easily mixed in with this legally obtained ivory and it is difficult for officials to

determine the difference.19 Genetic processes that can map DNA origins have the

potential to provide a method of identification in the future; however they are still being

developed.20 There is also scientific testing that can determine the approximate age of

ivory, but it is often extremely expensive or can potentially damage the ivory in the

process.21

The effectiveness of CITES has also been limited by the continuation of high

demand for ivory, specifically in China. In 1999 and 2002, several countries were

allowed to sell ivory to Japan and China. 22As the ivory was sold to China and Japan at

an average price of $67 dollars per pound, significantly lower than reported $386 per

pound of illegal ivory, the two countries were supposed to flood their domestic markets

with cheap ivory to reduce the monetary benefit of selling illegal ivory.23 However, the

Chinese government instead slowly sold its ivory at much higher prices than market

value. This exacerbated elephant poaching by making it more profitable for individuals to

19Christy, Bryan. "Blood Ivory: Ivory Worship." National Geographic. (accessed April14, 2014).20Bever, Lyndsay. Team of scientists claims new precision in using DNA to traceorigins. Washington Post. (Accessed May 8, 2014).21Bandow, Doug. The Administration's New Ivory Ban: I'm From The GovernmentAnd I'm Here To Kill Elephants And Treat Americans As Criminals. Forbes Magazine.(Accessed May 7, 2014).22CITES Standing Committee, last updated 2014, http://www.cites.org/eng/disc/sc.php23Christy, Bryan. "Blood Ivory: Ivory Worship." National Geographic. (accessed April14, 2014).


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sell illegal ivory than it had been before. Today, ivory is sold on the Chinese black

market for more than $1,300 a pound.24

The black market also increased because the Chinese market was unable to keep a

record of the legal ivory that was sold to the public. Documentation is often reused or

sold by vendors, and then falsely used to identify illegal pieces of ivory.25This makes it

difficult to distinguish legal ivory, for both government officials and consumers. Even

when vendors do not have any type of identification for ivory pieces there is ample

warning before a police crackdown.26

United States actions must be accompanied by Chinas regulations in order for

there to be a global impact because of the large Chinese demand for ivory. The large

middle-class population that is driving demand in China will only continue to grow as its

urban household income is expected to at least double by 2022. 27If the Chinese

governments lack of enforcement of international ivory laws and the populations

ignorance of ivory origins persist, then demand for ivory will continue to increases along

with local incomes. Independent organizations have been able to increase knowledge

about the source of ivory in Chinese society. A 2007 poll that found 68% of people in

China did not realize most ivory came from dead elephants.28The International Fund for

Animal Welfare launched a public awareness campaign in 2013 that sought to explain

24Levin, Dan. From Elephants Mouths, an Illicit Trail to China. The New YorkTimes. (accessed May 7, 2014).25Levin, Dan. From Elephants Mouths, an Illicit Trail to China. The New YorkTimes. (accessed May 7, 2014).26Levin, Dan. From Elephants Mouths, an Illicit Trail to China. The New YorkTimes. (accessed May 7, 2014).27Mapping Chinas Middle Class, last updated June 2013,http://www.mckinsey.com/insights/consumer_and_retail/mapping_chinas_middle_class28International Fund for Animal Welfare. Hope for elephants as more Chinese feelremorse for ivory purchases. (Accessed May 7, 2014).


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that elephants are killed in order to obtain their tusks. It founds that after seeing the ads,

the likelihood of people buying ivory went from 54 percent to 26 percent. 29Similar

campaigns, especially with widespread support from the government, could potentially

decrease demand in China by creating informed consumers.

Historical regulations on the ivory trade have been troubled by lack of

implementation, difficulty in enforcement, and persistently high demand. However, if

both the United States and China follow through on their recent promises to ban ivory

trade and work towards reducing demand for ivory, then elephants might stand a fighting

chance.

29International Fund for Animal Welfare. Hope for elephants as more Chinese feelremorse for ivory purchases. (Accessed May 7, 2014).

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