In this Note, I contest the constitutionality of the public Confederate symbols that are pervasive throughout the South. Just months before the Charlottesville “alt-right” rally protesting the removal of a Confederate monument, the Fifth Circuit held that a plaintiff challenging the constitutionality of the Mississippi flag, which contains the Confederate battle flag in its top left corner, lacked standing. The decision prevents courts from remedying the unconstitutional harms inflicted by Confederate memorialization. It is particularly consequential in communities like Hanover County, Virginia, in which most residents are white and favor keeping Confederate symbols in two public schools: Stonewall Jackson Middle School, Home of the Rebels, and Lee-Davis High School, Home of the Confederates. I argue that courts should utilize the coercion test from Establishment Clause doctrine to analyze the harms caused by racially discriminatory government speech, satisfying Article III standing requirements. I further argue that the coercion test is particularly useful when applied to racially discriminatory government speech by public school boards, like in Hanover County, because the heightened harmful effects of Confederate symbolism on children mirror those of religious coercion.
Note
Right to Be Educated or Right to Choose? School Choice and Its Impact on Education in North Carolina
Today, states face the challenge of how best to educate their citizens in light of state constitutional obligations to provide public education. Lawmakers must decide between investing more in traditional public schools or pursuing educational alternatives for students and their families. The school choice movement advocates for legal reform creating alternatives such as charter schools and school vouchers. This Note examines the ongoing doctrinal and social effects of school choice in North Carolina.
Doctrinally, school choice has successfully shifted the debate about what the purpose of state education law should be. As recently as one decade ago, statutory and decisional law was primarily premised on the idea that public education was a societal good designed to educate the citizenry and was governed by the costs and benefits to the community. Now, North Carolina education law increasingly emphasizes the importance of creating distinctive, varied school options and the benefits individual students accrue by accessing educational alternatives.
The change in North Carolina education law raises serious practical concerns. Rationalizing the benefits of publicly sponsored education in terms of individual gain leaves some students behind and produces negative social outcomes, such as segregation of schools. Charter schools and private schools funded by vouchers also have incentives to recruit high-performing students and not accommodate various disadvantaged groups within North Carolina. Unless the State is careful in considering the needs of all individual students, legalizing more state-sponsored school choice alternatives will exacerbate the relationship between family resources and educational opportunity.
Pardoning Contempt—Reconsidering the Criminal-Civil Divide
The Supreme Court has never authoritatively addressed the President’s power to pardon civil contempt. But in Ex parte Grossman, Chief Justice Taft argued in dictum that the President categorically lacked such power. That conclusion, now taken for granted, purportedly rested on English precedent as crystallized by Blackstone. But pre-ratification English cases and treatises fail to support the criminal-civil distinction as the boundary of the President’s power to pardon contempt. To the extent those English sources reveal at least an ambiguity in Article II, post-ratification American practice and normative considerations lend additional support to an alternative framework. Identifying a neglected indeterminacy as to the pardon power’s reach over certain civil contemnors, this Note rejects Taft’s criminal-civil divide and proposes a limiting principle centered on private legal interests. History, common law precedent, and functional considerations support a Constitution that permits pardoning contempt unless the pardon extinguishes private legal interests of third parties. Under this view, the President can pardon all criminal contemnors and can release from coercive fines or imprisonment those civil contemnors who owe tangible, but not equitable, relief. For criminal contemnors and this subset of civil contemnors, presidential pardons may face political or ethical obstacles, but should not face constitutional ones.