hastings race and poverty law journal

Transcription

HASTINGS
RACE AND POVERTY
LAW JOURNAL
VOLUME XIII
NO. 2
SUMMER 2016
ARTICLES
KILLING TWO ACHIEVEMENTS WITH ONE STONE: THE INTERSECTIONAL IMPACT OF
SHELBY COUNTY ON THE RIGHTS TO VOTE AND ACCESS HIGH PERFORMING SCHOOLS
Steven L. Nelson
FORTITUDE IN THE FACE OF ADVERSITY: DELTA SIGMA THETA’S HISTORY OF
RACIAL UPLIFT
Gregory S. Parks and Marcia Hernandez
NOTES
THE FOURTH SECTOR: CREATING A FOR-PROFIT SOCIAL ENTERPRISE SECTOR TO
DIRECTLY COMBAT THE LACK OF SOCIAL MOBILITY IN MARGINALIZED COMMUNITIES
Carlos Jurado
NIÑOS, NIÑAS Y ADOLESCENTES IN GUATEMALA: REFLECTIONS ON THE
IMPLEMENTATION OF THE LEY PINA
Stacy Kowalski
University of California Hastings College of the Law
200 McAllister Street, San Francisco, CA 94102
HASTINGS RACE AND POVERTY LAW JOURNAL
EDITORIAL STAFF 2015-2016
EDITORIAL BOARD
LILIANA GARCIA & RODNEY K. NICKENS, JR. ....................................................................................... Editors-in-Chief
STACY KOWALSKI .................................................................................................................... Executive Articles Editor
DOROTHY YOUNG ..................................................................................................................... Senior Managing Editor
NANCY AREVALO ......................................................................................................................... Senior Articles Editor
DAVID HERNANDEZ ..................................................................................................................... Senior Articles Editor
NATALIE KOSKI-KARELL ............................................................................................................... Senior Articles Editor
ARIONNA LAWSON ....................................................................................................................... Senior Articles Editor
ALEXANDER LUONG ..................................................................................................................... Senior Articles Editor
DESTINY WHITFIELD ..................................................................................................................... Senior Articles Editor
ZACHARY NEWMAN ........................................................................................................................ Senior Notes Editor
ALLYSSA VILLANUEVA ...................................................................................................................... Symposium Editor
WHITNEY GEITZ ................................................................................................................ Community Outreach Editor
EVELINA CHANG .......................................................................................................................Communications Editor
SHIVA RUPAL SHAH ................................................................................................ Acquisitions & Submissions Editor
SOHIR ALBGAL ................................................................................................................................... Production Editor
BRITTANEY DE LA TORRE ................................................................................................................... Production Editor
MIRA KARAGEORGE .......................................................................................................Finance & Development Editor
STAFF EDITORS
PIPER AKOL
JACOB BOTHAMLEY
CHRISTOPHER GUECO
INGA ORBELI
CHRISTINE REYES LOYA
GABRIELLA RODEZNO
KRISTINA ROSALES
ARNULFO SANCHEZ
SONALI SHAIKHER
LILIT TER-ASTVATSATRYAN
TOM MCCARTHY .............................................................................. Director, O’Brien Center for Scholarly Publications
FACULTY ADVISORS
GEORGE BISHARAT, Professor of Law, Emeritus
RICHARD A. BOSWELL, Professor of Law and Associate Dean for Global Programs
MARSHA N. COHEN, Honorary Raymond L. Sullivan Professor of Law
JOHN L. DIAMOND, Professor of Law
MIYE GOISHI, Clinical Professor of Law and Director of the Civil Justice Clinic
BRIAN E. GRAY, Professor of Law, Emeritus
DAVID JUNG, Professor of Law, Emeritus
CHARLES L. KNAPP, Joseph W. Cotchett Distinguished Professor of Law, Emeritus
JOHN LESHY, Harry D. Sunderland Distinguished Professor of Real Property Law, Emeritus
RORY LITTLE, Professor of Law
SHAUNA I. MARSHALL, Professor of Law, Emeritus
UGO MATTEI, Distinguished Professor of Law and Fromm Chair in International & Comparative Law
KAREN MUSALO, Clinical Professor of Law, Director of Center for Gender & Refugee Studies, and
Director of the Refugee & Human Rights Clinic
ASCANIO PIOMELLI, Professor of Law
HARRY G. PRINCE, Professor of Law
DONNA M. RYU, U.S. Magistrate Judge for the Northern District of California
MARGARET RUSSELL, Professor of Law, Santa Clara University School of Law
REUEL SCHILLER, Professor of Law
NANCY STUART, Clinical Professor of Law and Director of Externships & Pro Bono Programs
The Hastings Race and Poverty Law Journal (ISSN: 1546-4652) is published
Winter and Summer online by the students of UC Hastings College of the Law.
The mailing address for the HRPLJ is 200 McAllister Street, San Francisco, CA
94102-4978. Telephone number: (415) 581-8953. Fax number: (415) 581-8934.Web site:
http://www.uchastings.edu/hrplj/index.html. Email address: [email protected].
Back issues and single issues are available from the O’Brien Center for Scholarly
Publications, UC Hastings College of the Law, 200 McAllister Street, San Francisco,
CA 94102-4978.
Citations generally conform to the rules of A Uniform System of Citation, The Bluebook
(20th ed., 2015) copyright by the Columbia, Harvard and University of Pennsyvania
Law Reviews and the Yale Law Journal.
HRPLJ gladly considers unsolicited manuscripts for publication. HRPLJ welcomes
both formal and informal responses to articles appearing in HRPLJ.Articles must be
single-spaced, printed double-sided on 8.5” x 11” paper (if mailed), with footnotes in
the body of the manuscript.
HRPLJ prefers submissions by email to [email protected].
© Copyright
University of California
Hastings College of the Law
HASTINGS COLLEGE OF THE LAW
DIRECTORS
THOMAS GEDE, B.A., J.D., Chair ......................................................................................................... Davis
CARL W. “CHIP” ROBERTSON, B.A., M.B.A., J.D., Vice Chair ................................................... Los Angeles
DONALD BRADLEY, B.A., J.D., LL.M. .......................................................................................... Pleasanton
TINA COMBS, B.A., J.D. .................................................................................................................. Oakland
MAUREEN E. CORCORAN , B.A., M.A., J.D. ............................................................................ San Francisco
MARCI DRAGUN, B.A., J.D. ........................................................................................................ Burlingame
CARIN T. FUJISAKI, B.A., J.D. ................................................................................................... Walnut Creek
CLAES H. LEWENHAUPT, B.A., LL.M., J.D.* .................................................................................. Fort Irwin
MARY NOEL PEPYS, B.A., J.D. .............................................................................................. San Francisco
BRUCE L. SIMON, A.B., J.D. ...................................................................................................... Hillsborough
SANDI THOMPSON, B.A., J.D. ........................................................................................................... Woodside
*Great-grandson of Hon. Serranus Clinton Hastings, Founder of Hastings College of the Law
DIRECTORS EMERITI
MARVIN R. BAXTER, B.A., J.D. ........................................................................................................... Fresno
WILLIAM R. CHANNELL, B.A., J.D., Retired Justice ......................................................................... Lafayette
JOSEPH W. COTCHETT, B.S., LL.B. ............................................................................................. Hillsborough
MYRON E. ETIENNE, JR., B.S., J.D. .................................................................................................................
LOIS HAIGHT HERRINGTON, A.B., J.D. ........................................................................................ Walnut Creek
MAX K. JAMISON, B.A., J.D. ..........................................................................................................................
JOHN T. KNOX, A.B., J.D. ............................................................................................................ Richmond
JAMES E. MAHONEY, B.A., J.D. ................................................................................................... Los Angeles
BRIAN D. MONAGHAN, B.S., J.D. ................................................................................................... San Diego
CHARLENE PADOVANI MITCHELL, B.A., M.A., J.D. ................................................................... San Francisco
JOHN A. SPROUL, A.B., J.D. ............................................................................................................. El Cerrito
ADMINISTRATION AND INSTRUCTION
DAVID L. FAIGMAN, B.A., M.A., J.D. ............................................................ INTERIM Chancellor and Dean
and John F. Digardi Distinguished Professor of Law
ELIZABETH HILLMAN, B.S.E.E., J.D., PH.D. .................................................. Provost and Academic Dean,
and INTERIM Associate Dean for Library Services, and Professor of Law
JEFFREY A. LEFSTIN, Sc.B., J.D., Ph.D. .......................... Associate Academic Dean and Professor of Law
ELISE K. TRAYNUM, B.A., J.D. ....................... General Counsel and Secretary of the Board of Directors
DAVID SEWARD, B.A., M.B.A. ................................................................................. Chief Financial Officer
GINA BARNETT, B.A., M.A.. ................................................... Registrar, Director of Institutional Research
DEBORAH TRAN, B.A., M.A. ......................................................................................................... Controller
RICHARD A. BOSWELL, B.A., J.D. ................ Associate Dean for Global Programs and Professor of Law
REUEL SCHILLER, B.A., J.D., PH.D. ............................ Associate Dean for Research and Professor of Law
NANCY STUART, B.S., J.D. .............................................. Associate Dean for Experiential Learning and
Clinical Professor of Law
RUPA BHANDARI, J.D.. ........................................................................... Assistant Dean of Student Services
TONI YOUNG, B.A., J.D. .......................... Assistant Dean of Legal Research & Writing, and Moot Court
SARI ZIMMERMAN, B.S.F.S., J.D. .............................................. Assistant Dean for the Office of Career and
Professional Development
VICTOR HO ........................................................................................................... Director of Financial Aid
STEVEN BONORRIS .......... Interim Executive Director of the Center for State and Local Government Law
and the Public Law Research Institute
ROBIN FELDMAN, B.A., J.D. ............... Director of the Law and Bioscience Project and Professor of Law
MIYE GOISHI, B.A., J.D. ..................... Director of the Civil Justice Clinic and Clinical Professor of Law
JAN JEMISON, B.S., M.B.A., J.D. ........................ Director of the Legal Education Opportunity Program
and Adjunct Assistant Professor of Law
JAIME KING, B.A., J.D., Ph.D. ......................................... Director of UCSF/UC Hastings Consortium on
Law, Science & Health Policy
KAREN B. MUSALO, B.A., J.D. .......................... Director of the Center for Gender and Refugee Studies,
and Director of the Refugee and Human Rights Clinic, and Clinical Professor of Law
LISA NOSHAY PETRO, B.P.S., J.D. ......................................... Director of the Disability Resource Program
ROBERT S. PETTIT ..........................................................................Executive Director of Human Resources
SHEILA R. PURCELL, B.A., J.D. ....... Director of the Center for Negotiation and Dispute Resolution, and
ALEX A. G. SHAPIRO, M.F.A. ....................................................................... Director of Exernal Relations
JOAN C. WILLIAMS, B.A., M.C.P., J.D. ............................................... Distinguished Professor of Law and
Director of the Center for Worklife Law
LAURIE ZIMET, B.A., J.D. ..................................................... Director of the Academic Support Program
PROFESSORS EMERITI OF LAW
MARK N. AARONSON, A.B., M.A., J.D., PH.D. ................................................. Professor of Law, Emeritus
MARGRETH BARRETT, B.A., M.A., J.D. .............................................................. Professor of Law, Emeritus
GAIL BOREMAN BIRD, A.B., J.D. ......................................................................... Professor of Law, Emeritus
GEORGE E. BISHARAT, A.B., M.A., PH.D., J.D. .................................................. Professor of Law, Emeritus
MARSHA N. COHEN, B.A., J.D. ............................ Hon. Raymond L. Sullivan Professor of Law, Emeritus
RICHARD B. CUNNINGHAM, B.S., J.D., LL.M. ..................................................... Professor of Law, Emeritus
BRIAN GRAY, B.A., J.D. ..................................................................................... Professor of Law, Emeritus
JOSEPH GRODIN, B.A., J.D., PH.D. ..................................................................... Professor of Law, Emeritus
GEOFFREY C. HAZARD, JR., B.A., LL.B. ...... Thomas E. Miller Distinguished Professor of Law, Emeritus
WILLIAM T. HUTTON, A.B., J.D., LL.M. ............................................................ Professor of Law, Emeritus
DAVID J. JUNG, A.B., J.D. .................................................................................. Professor of Law, Emeritus
MARY KAY KANE, A.B., J.D. .............................................................. Emerita Dean and Chancellor, and
Distinguished Professor of Law, Emeritus
CHARLES L. KNAPP, B.A., J.D. ........................................................................... Professor of Law, Emeritus
FREDERICK LAMBERT, A.B., J.D. ......................................................................... Professor of Law, Emeritus
JOHN LESHY, A.B., J.D. ............................................................. Professor of Real Property Law, Emeritus
DAVID I. LEVINE, A.B., J.D. ............................................................................... Professor of Law, Emeritus
STEPHEN A. LIND, A.B., J.D., LL.M. ................................................................. Professor of Law, Emeritus
JOHN MALONE, B.S., LL.B. .................................................................................. Lecturer in Law, Emeritus
SHAUNA I. MARSHALL, A.B., J.D., J.S.M. ........................................................... Professor of Law, Emeritus
CALVIN R. MASSEY, A.B., M.B.A., J.D. ............................................................. Professor of Law, Emeritus
JAMES R. MCCALL, B.A., J.D. ........................................................................... Professor of Law, Emeritus
BEATRICE MOULTON, J.D., LL.M. ....................................................................... Professor of Law, Emeritus
MELISSA LEE NELKEN, B.A., M.A., J.D. ............................................................. Professor of Law, Emeritus
JENNI PARRISH, B.A., M.L.S., J.D. .................................................................... Professor of Law, Emeritus
STEPHEN SCHWARZ, A.B., J.D. ............................................................................. Professor of Law, Emeritus
HON. WILLIAM W. SCHWARZER, A.B., LL.B. ....................................................... Professor of Law, Emeritus
KEVIN H. TIERNEY, A.B., M.A., LL.B., LL.M. ................................................. Professor of Law, Emeritus
GORDON VAN KESSEL, A.B., LL.B. ..................................................................... Professor of Law, Emeritus
WILLIAM K. S. WANG, B.A., J.D. ...................................................................... Professor of Law, Emeritus
C. KEITH WINGATE, B.S., J.D. ............................................................................ Professor of Law, Emeritus
PROFESSORS OF LAW
ALICE ARMITAGE, A.B., M.A., J.D. .................................................................... Associate Professor of Law
HADAR AVIRAM , LL.B., M.A., J.D. .................................................................................... Professor of Law
ALINA BALL, J.D. ............................................................................................... Associate Professor of Law
DANA BELDIMAN, M.A., J.D., LL.M. ....................................................................... Professor in Residence
AARON BELKIN, B.A., Ph.D. ................................................................................. Visiting Professor of Law
KATE BLOCH, B.A., M.A., J.D. .......................................................................................... Professor of Law
RICHARD A. BOSWELL, B.A., J.D. ............................ Associate Academic Dean for Global Programs and
Professor of Law
ABRAHAM CABLE, B.A., J.D. ............................................................................. Associate Professor of Law
JO CARRILLO, B.A., J.D., J.S.D. .......................................................................................... Professor of Law
PAOLO CECCHI DIMEGLIO, J.D., LL.M., MAGISTÉRE-DJCE, PH.D. .................. Permanent Affiliated Scholar
JOHN CRAWFORD, B.A., M.A., J.D. .................................................................... Associate Professor of Law
A. GREGORY COCHRAN, B.A., M.D. ...................... Associate Director, UCSF/UC Hastings Health Policy
and Law Degree Program, and Lecturer in Law
BEN DEPOORTER, M.A., J.D., PH.D., J.S.D., LL.M. .......................................................... Professor of Law
JOHN L. DIAMOND, B.A., J.D. ............................................................................................. Professor of Law
REZA DBADJ, J.D. .................................................................................................. Visiting Professor of Law
SCOTT DODSON, B.A., J.D. .................................................................................................. Professor of Law
VEENA DUBAL Ph.D., J.D. ................................................................................. Associate Professor of Law
JENNIFER TEMPLETON DUNN, B.A., J.D. ................................................................................... Lecturer in Law
JARED ELLIAS, A.B., J.D. .................................................................................... Associate Professor of Law
DAVID L. FAIGMAN, B.A., M.A., J.D. ......................... John F. Digardi Distinguished Professor of Law
LISA FAIGMAN, B.S., J.D. ...................................................................................................... Lecturer in Law
ROBIN FELDMAN, B.A., J.D. ............... Director of the Law and Bioscience Project and Professor of Law
HEATHER FIELD, B.S., J.D. ................................................................................................... Professor of Law
CLARK FRESHMAN, B.A., M.A., J.D. ................................................................................... Professor of Law
AHMED GHAPPOUR, J.D. .......................................................................... Visiting Assistant Professor of Law
MIYE GOISHI, B.A., J.D. ..................... Clinical Professor of Law and Director of the Civil Justice Clinic
KEITH J. HAND, B.A., M.A., J.D. ...................................................................... Associate Professor of Law
ELIZABETH HILLMAN, B.S.E.E., J.D., PH.D. .............. Provost and Academic Dean, and Professor of Law
CAROL IZUMI .......................................................................................................... Clinical Professor of Law
PETER KAMMINGA, LL.B., J.D., LL.M., PH.D. .............................................. Permanent Affiliated Scholar
PETER KEANE ......................................................................................................... Visiting Professor of Law
CHIMENE KEITNER, A.B., D.PHIL., J.D. ................................................................................. Professor of Law
JAIME KING, B.A., J.D., Ph.D. ......................................... Director of UCSF/UC Hastings Consortium on
Law, Science & Health Policy, and Professor of Law
EUMI K. LEE, B.A., J.D. ...................................................................................... Clinical Professor of Law
EVAN TSEN LEE, A.B., J.D. ................................................................................................ Professor of Law
JEFFREY A. LEFSTIN, Sc.B., J.D., Ph.D. .......................... Associate Academic Dean and Professor of Law
RORY K. LITTLE, B.A., J.D. ................................................................................................ Professor of Law
CHRISTIAN E. MAMMEN, J.D. .................................................................................................. Lecturer in Law
RICHARD MARCUS, B.A., J.D. .......................................... Horace O. Coil (’57) Chair in Litigation and
Distinguished Professor of Law
LEO P. MARTINEZ, B.S., M.S., J.D. ....................................................... Albert Abramson Professor of Law
UGO MATTEI, J.D., LL.M. .... Alfred and Hanna Fromm Chair in International and Comparative Law
and Distinguished Professor of Law
SETSUO MIYAZAWA, M.A., M.PHIL., PH.D., LL.B., LL.M., J.S.D. ..........................Senior Professor of Law
STEFANO MOSCATO, B.A., J.D. ............................................................................................... Lecturer in Law
KAREN B. MUSALO, B.A., J.D. .......................... Director of the Center for Gender and Refugee Studies,
and Director of the Refugee and Human Rights Clinic, and Professor of Law
OSAGIE K. OBASOGIE, B.A., J.D., PH.D. ............................................................................. Professor of Law
DAVE OWEN, B.A., J.D. ......................................................................................... Visiting Professor of Law
ROGER C. PARK, A.B., J.D. ................................................. James Edgar Hervey Chair in Litigation and
Distinguished Professor of Law
JOEL PAUL, B.A., M.A.L.D., J.D. ..................................................................................... Professor of Law
ASCANIO PIOMELLI, A.B., J.D. .............................................................................................. Professor of Law
ZACHARY PRICE, J.D. ............................................................................. Visiting Assistant Professor of Law
HARRY G. PRINCE, B.A., J.D. ............................................................................................. Professor of Law
SHEILA R. PURCELL, B.A., J.D. ............... Director of the Center for Negotiation and Dispute Resolution,
and Clinical Professor of Law
RADHIKA RAO, A.B., J.D. .................................................................................................... Professor of Law
AARON RAPPAPORT, B.A., J.D. ............................................................................................. Professor of Law
MORRIS RATNER, B.A., J.D. ............................................................................... Associate Professor of Law
TRACEY ROBERTS, A.B., J.D., LL.M. .................................................................... Visiting Professor of Law
DORIT RUBENSTEIN REISS, LL.B., PH.D. ............................................................................... Professor of Law
NAOMI ROHT-ARRIAZA, B.A., J.D., M.P.P. .......................................................................... Professor of Law
MICHAEL B. SALERNO, J.D. ..................................................................................... Clinical Professor of Law
and Associate Director of the Center for State and Local Government Law
REUEL SCHILLER, B.A., J.D., PH.D. ............................ Associate Dean for Research and Professor of Law
LOIS W. SCHWARTZ, B.A., M.A., M.L.S., J.D. ........................................................ Senior Lecturer in Law
ROBERT SCHWARTZ, B.A., J.D. ................................................................................ Visiting Professor of Law
ALFRED C. SERVER, M.D., PH.D. ...................................................................................... Affiliated Scholar
JODI SHORT, B.A., J.D., PH.D. ........................................................................... Associate Professor of Law
GAIL SILVERSTEIN, B.A., J.D. .................................................................................. Clinical Professor of Law
JOANNE SPEERS, J.D., M.P.P. ........................................................................................... Affiliated Scholar
MAI LINH S PENCER, B.A., J.D. ......................................................... Visiting Clinical Professor of Law and
Academic Director of Lawyers for America
NANCY STUART, B.S., J.D. .............................................. Associate Dean for Experiential Learning and
JOHN SYLVESTER, J.D. .............................................................................................. Visiting Professor of Law
DAVID TAKACS, B.S., M.A., J.D., LL.M., PH.D. .............................................. Associate Professor of Law
YVONNE TROYA, B.A., J.D. .................................................................................. Clinical Professor of Law
JOANNA K. WEINBERG, J.D., LL.M. ......................................................................... Senior Lecturer in Law
MANOJ VISWANATHAN, S.B., S.M., J.D., LL.M. ............................................ Associate Professor Designate
D. KELLY WEISBERG, B.A., M.A., PH.D., J.D. ................................................................... Professor of Law
LOIS WEITHORN, PH.D., J.D. ............................................................................................... Professor of Law
JOAN C. WILLIAMS, B.A., M.C.P., J.D. ...................................................... Distinguished Professor of Law,
UC Hastings Foundation Chair and Director of the Center for Worklife Law
FRANK H. WU ............................................................................................Distinguished Professor of Law
TONI YOUNG, B.A., J.D. ........................... Assistant Dean of Legal Research & Writing and Moot Court
MICHAEL ZAMPERINI, A.B., J.D. .............................................................................. Visiting Professor of Law
LAURIE ZIMET, B.A., J.D. ..................................................... Director of the Academic Support Program
RICHARD ZITRIN, A.B., J.D. ................................................................................................... Lecturer in Law
ADJUNCT FACULTY
GARY ALEXANDER, J.D. ........................................................................................ Assistant Professor of Law
ROY BARTLETT, J.D. ............................................................................................ Assistant Professor of Law
MARK BAUDLER, J.D. .......................................................................................... Assistant Professor of Law
BRANDON BAUM, B.A., J.D. ................................................................................ Assistant Professor of Law
KARENJOT BHANGOO RANDHAWA, J.D. .................................................................... Assistant Professor of Law
JAMES BIRKELUND, J.D. ........................................................................................ Assistant Professor of Law
CORY BIRNBERG, B.A., J.D. ................................................................................. Assistant Professor of Law
DANIEL BLANK, J.D. ............................................................................................ Assistant Professor of Law
YISHAI BOYARIN, J.D. .......................................................................................... Assistant Professor of Law
DARSHAN BRACH, J.D. ......................................................................................... Assistant Professor of Law
CHARLES R. BREYER, J.D. .................................................................................... Assistant Professor of Law
JOHN BRISCOE, J.D. ............................................................................................. Assistant Professor of Law
JILL BRONFMAN, B.A., M.A., J.D. ................... Program Director of the Privacy and Technology Project
at the Institute for Innovation Law and Adjunct Professor of Law in Data Privacy
DANIEL BROWNSTONE, J.D. ................................................................................... Assistant Professor of Law
EMILY BURNS, J.D. .............................................................................................. Assistant Professor of Law
MICHAEL CARBONE, J.D. ..................................................................................... Assistant Professor of Law
KAREN CARRERA, J.D. ......................................................................................... Assistant Professor of Law
CARL W. CHAMBERLIN, A.B., J.D. ......................................................................... Assistant Professor of Law
ANDREW Y. S. CHENG, B.A., J.D. ........................................................................ Assistant Professor of Law
HENRY CHENG, J.D. ............................................................................................. Assistant Professor of Law
KARL CHRISTIANSEN , J.D. ..................................................................................... Assistant Professor of Law
RICHARD COHEN, B.A., J.D. ................................................................................ Assistant Professor of Law
PAMELA COLE, J.D. ............................................................................................. Assistant Professor of Law
MATTHEW COLES, J.D. ......................................................................................... Assistant Professor of Law
JAMES CORBELLI ................................................................................................... Assistant Professor of Law
MARGARET CORRIGAN, J.D. .................................................................................. Assistant Professor of Law
PAUL CORT, J.D. ................................................................................................. Assistant Professor of Law
JAMES CREIGHTON, J.D. ........................................................................................ Assistant Professor of Law
MARK D’ARGENIO , B.A., J.D. ............................................................................ Assistant Professor of Law
PATRICIA DAVIDSON ............................................................................................... Assistant Professor of Law
JOHN DEAN, J.D. ................................................................................................. Assistant Professor of Law
SHASHIKALA DEB, J.D. ......................................................................................... Assistant Professor of Law
BURK DELVENTHAL, J.D. ....................................................................................... Assistant Professor of Law
LOTHAR DETERMANN, J.D. .................................................................................... Assistant Professor of Law
TERRY KAY DIGGS, B.A., J.D. ............................................................................ Assistant Professor of Law
JAMES R. DILLON, J.D., PH.D. ............................................................................. Assistant Professor of Law
ROBERT DOBBINS, J.D., LL.M. ........................................................................... Assistant Professor of Law
TOM DULEY, J.D. ................................................................................................ Assistant Professor of Law
JAMES B. ELLIS, B.S., J.D. ................................................................................... Assistant Professor of Law
RANDALL S. FARRIMOND, B.S., M.S., J.D. ............................................................ Assistant Professor of Law
TAMARA FISHER, J.D. .......................................................................................... Assistant Professor of Law
JOHN FORD, J.D. .................................................................................................. Assistant Professor of Law
ROBERT FRIES, B.A., J.D. .................................................................................... Assistant Professor of Law
MICHAEL GAITLEY, J.D. ........................................................................................ Assistant Professor of Law
STACEY GEIS ......................................................................................................... Assistant Professor of Law
MICHAEL GOWE, J.D. ........................................................................................... Assistant Professor of Law
JOSEPH GRATZ, J.D. .............................................................................................. Assistant Professor of Law
CHARLES TAIT GRAVES, J.D. ................................................................................. Assistant Professor of Law
RICHARD GROSBOLL, J.D. ..................................................................................... Assistant Professor of Law
JONATHAN GROSS, J.D. ......................................................................................... Assistant Professor of Law
PAUL GROSSMAN, J.D. ......................................................................................... Assistant Professor of Law
THEDA HABER, B.A., M.A., J.D. ....................................................................... Assistant Professor of Law
GEOFFREY A. HANSEN, B.A., J.D. ........................................................................ Assistant Professor of Law
HILARY HARDCASTLE, B.A., J.D., M.L.I.S. ......................................................... Assistant Professor of Law
DIANA HARDY, B.A., J.D. ................................................................................... Assistant Professor of Law
SARA HARRINGTON, J.D. ....................................................................................... Assistant Professor of Law
STEVE HARRIS ...................................................................................................... Assistant Professor of Law
SARAH HAWKINS, B.A., J.D. ................................................................................ Assistant Professor of Law
HOWARD A. HERMAN, A.B., J.D. ......................................................................... Assistant Professor of Law
DENNIS HIGA, B.A., J.D. .................................................................................... Assistant Professor of Law
MONICA HOFMANN, J.D. ...................................................................................... Assistant Professor of Law
SARAH HOOPER J.D. ............................................................................................. Assistant Professor of Law
ROBERT HULSE, B.S., M.S., J.D. ......................................................................... Assistant Professor of Law
TERI L. JACKSON, B.A., J.D. .............................................................................. Assistant Professor of Law
MORRIS JACOBSON, B.A., J.D. ............................................................................. Assistant Professor of Law
OKSANA JAFFE, B.A., M.A., J.D., LL.M. ........................................................... Assistant Professor of Law
PEEYUSH JAIN, B.A., J.D. .................................................................................... Assistant Professor of Law
MARIA-ELENA JAMES, B.A., J.D. ......................................................................... Assistant Professor of Law
JULIA MEZHINSKY JAYNE, J.D. ................................................................................ Assistant Professor of Law
JAN JEMISON, B.S., M.B.A., J.D. ........................ Director of the Legal Education Opportunity Program
and Adjunct Assistant Professor of Law
STEPHEN JOHNSON, J.D. ......................................................................................... Assistant Professor of Law
ORI KATZ, B.A., J.D. ......................................................................................... Assistant Professor of Law
S. MICHAEL KERNAN, J.D. ................................................................................... Assistant Professor of Law
TAL KLEMENT, B.A., J.D., M.PP. ....................................................................... Assistant Professor of Law
ARLENE KOSTANT, B.A., M.A., J.D. .................................................................... Assistant Professor of Law
DAVID KOSTINER, B.A., J.D. ................................................................................ Assistant Professor of Law
MANISH KUMAR ................................................................................................... Assistant Professor of Law
WILLIAM LAFFERTY, J.D. ...................................................................................... Assistant Professor of Law
CAROL M. LANGFORD, J.D. ................................................................................. Assistant Professor of Law
CLIFFORD T. LEE, J.D. ......................................................................................... Assistant Professor of Law
JONATHAN U. LEE, J.D. ........................................................................................ Assistant Professor of Law
R. ELAINE LEITNER, B.S., J.D. ............................................................................. Assistant Professor of Law
GARY LEWIS, B.SC., J.D. .................................................................................... Assistant Professor of Law
STEPHEN LIACOURAS, B.A., J.D. ........................................................................... Assistant Professor of Law
FRANK LIND, J.D. ................................................................................................ Assistant Professor of Law
ELIZABETH LINK, J.D. .......................................................................................... Assistant Professor of Law
EUGENE LITVINOFF, J.D. ....................................................................................... Assistant Professor of Law
ALLISON MACBETH, B.A., J.D. ............................................................................ Assistant Professor of Law
CECILY MAK, J.D. ............................................................................................... Assistant Professor of Law
CHRISTIAN E. MAMMEN, J.D., PH.D. .................................................................... Assistant Professor of Law
HARRY MARING, B.A., J.D. ................................................................................. Assistant Professor of Law
ALEXIIUS MARKWALDER, J.D. ................................................................................ Assistant Professor of Law
JACK MCCOWAN, J.D. ......................................................................................... Assistant Professor of Law
MARY MCLAIN, J.D. .......................................................................................... Assistant Professor of Law
JOANNE MEDERO, B.A., J.D. ................................................................................ Assistant Professor of Law
JASON MEEK, J.D. ............................................................................................... Assistant Professor of Law
ALAN MELINCOE, J.D. .......................................................................................... Assistant Professor of Law
SAMUEL R. MILLER, J.D. ...................................................................................... Assistant Professor of Law
THERESA DRISCOLL MOORE, B.A., J.D. ................................................................ Assistant Professor of Law
JESSICA NOTINI, B.A., J.D. ................................................................................... Assistant Professor of Law
DANIELLE OCHS, B.A., J.D. ................................................................................. Assistant Professor of Law
MARI OVERBECK, B.A., J.D. ............................................................................... Assistant Professor of Law
ROGER PATTON, B.S., J.D. ................................................................................... Assistant Professor of Law
RICHARD PEARL, B.A., J.D. ................................................................................. Assistant Professor of Law
JAMES PISTORINO, J.D. ......................................................................................... Assistant Professor of Law
RACHEL PROFFITT, J.D. ......................................................................................... Assistant Professor of Law
ERIC QUANDT, J.D. .............................................................................................. Assistant Professor of Law
CHARLES RAGAN, J.D. .......................................................................................... Assistant
ROBIN REASONER, J.D. ......................................................................................... Assistant
JENNIFER A. REISCH, B.A., J.D. ........................................................................... Assistant
CHRISTOPHER RIES, B.S., J.D. ............................................................................... Assistant
HON. A. JAMES ROBERTSON, J.D. .......................................................................... Assistant
KEVIN ROMANO, J.D. ........................................................................................... Assistant
DAVID ROSENFELD , B.A., J.D. .............................................................................. Assistant
KATHRYN ROSS, B.A., J.D. .................................................................................. Assistant
ROBERT RUBIN, J.D. ............................................................................................ Assistant
DOUGLAS SAELTZER, J.D. ...................................................................................... Assistant
ROBERT SAMMIS, B.A., J.D. ................................................................................. Assistant
JOACHIM SCHERER ................................................................................................. Assistant
JONATHAN SCHMIDT, J.D. ....................................................................................... Assistant
JAMES SCHURZ, J.D. ............................................................................................. Assistant
NINA SEGRE, J.D. ................................................................................................ Assistant
BAHRAM SEYEDIN-NOOR, J.D. ............................................................................... Assistant
ROCHELLE SHAPELL, B.A., M.P.H., J.D. ............................................................... Assistant
ANN SHULMAN, B.S., J.D., LL.M. ....................................................................... Assistant
ERIC SIBBITT, A.B., J.D., LL.M. ......................................................................... Assistant
LARRY SIEGEL, M.A., J.D. .................................................................................. Assistant
JEFFREY SINSHEIMER, A.B., J.D. ............................................................................ Assistant
ROCHAEL SOPER, J.D., LL.M. .............................................................................. Assistant
MATTHEW SOTOROSEN, J.D. ................................................................................... Assistant
MARK SPOLYAR, B.S.E., J.D. ............................................................................... Assistant
THOMAS E. STEVENS, B.A., J.D. .......................................................................... Assistant
AURIA STYLES, J.D. ............................................................................................. Assistant
KIM SWAIN, J.D. .................................................................................................. Assistant
ROBERT TERRIS, M.A., M.S., J.D. ...................................................................... Assistant
ABIGAIL TRILLIN, J.D. .......................................................................................... Assistant
JEFF UGAI ............................................................................................................ Assistant
GLEN R. VAN LIGTEN, B.S., J.D. ......................................................................... Assistant
BRUCE WAGMAN, B.S., J.D. ................................................................................ Assistant
JAMES WAGSTAFFE, B.A., J.D. ............................................................................. Assistant
CRAIG WALDMAN ................................................................................................. Assistant
LISA WALKER, J.D. ............................................................................................. Assistant
VAUGHN WALKER ................................................................................................ Assistant
ALLISON JANE WALTON, J.D. ................................................................................. Assistant
DAVID WARD, B.A., M.A., J.D. ......................................................................... Assistant
ANTON WARE B.A., M.A., J.D. ......................................................................... Assistant
JEFFREY WILLIAMS, A.B., J.D. .............................................................................. Assistant
JOHN D. WILSON, B.A., J.D. ............................................................................... Assistant
JOHN S. WORDEN, B.A., J.D. .............................................................................. Assistant
PAUL ZAMOLO., A.B., M.P.P., J.D. .................................................................... Assistant
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TABLE OF CONTENTS
HRPLJ 13-1
Table of Contents
ARTICLES
KILLING TWO ACHIEVEMENTS WITH ONE STONE: THE
INTERSECTIONAL IMPACT OF SHELBY COUNTY ON THE RIGHTS
TO VOTE AND ACCESS HIGH PERFORMING SCHOOLS
By Steven L. Nelson ........................................................... 225
The Civil Rights Movement sought to ensure access to the
right to vote and to quality education. Although these two
pursuits are historically inseparable, scholars have addressed
education and voting rights as separate struggles within one
movement.
This Article addresses the intersection of
educational equity and voting rights by assessing the role of the
Supreme Court’s decision in Shelby County v. Holder on Black
voters’ ability to participate in the politics of education and
educational policy via school board selection processes. This
Article argues that the Court’s decision in Shelby
County restricted access to political participation for Black
voters in New Orleans. In particular, this Article argues that
the Shelby County decision allows states to use the charter
school movement to displace predominately Black and elected
school boards with predominately White and non-elected
school boards. Furthermore, this Article asserts that there are
better formats for charter school governance if academic
accountability remains a goal of the charter school movement.
FORTITUDE IN THE FACE OF ADVERSITY: DELTA SIGMA
THETA’S HISTORY OF RACIAL UPLIFT
By Gregory S. Parks and Marcia Hernandez ..................... 273
The common narrative about the African-American quest
for social justice and civil rights during the 20th century
consists, largely, of men and women working through
TABLE OF CONTENTS HRPLJ 13-1
organizations to bring about change. The typical list of
organizations includes, inter alia, the National Association for
the Advancement of Colored People, the National Urban
League, the Southern Christian Leadership Conference, and the
Student Nonviolent Coordinating Committee.
AfricanAmerican collegiate-based sororities are almost never included
in this list. Nevertheless, at the turn of the 20th century, a small
group of organizations founded on personal excellence sparked
the development and sustaining of fictive-kinship ties and
racial uplift. Given these organizations’ almost immediate
creation of highly functioning alumni chapters in cities across
the United States, members of these organizations could
continue their work in actualizing their respective
organizational ideals. One such organization, founded at
Howard University in 1913, was Delta Sigma Theta Sorority.
This Article explores the history of this sorority’s involvement
in the African-American quest for social justice and racial
equality in the United States and how that work was bound up
in the sorority’s broader racial uplift engagement.
NOTES
THE FOURTH SECTOR: CREATING A FOR-PROFIT SOCIAL
ENTERPRISE SECTOR TO DIRECTLY COMBAT THE LACK OF
SOCIAL MOBILITY IN MARGINALIZED COMMUNITIES
By Carlos Jurado .................................................................. 349
The United States is currently facing record high rates of
income inequality and, as a result, there is a general lack of
social mobility. This is troublesome for Americans because of
the potential disastrous implications for the United States
economy. The current state of the American market has
enabled an environment where a few elite continue to hoard
large amounts of the profits generated by the economy while
the lower class has experienced a substantial growth in
population with incomparable economic growth. In addition,
the middle class has significantly diminished and can soon be
rendered ineffective in its role as the thriving force of the
TABLE OF CONTENTS HRP 13-1
American economy. Moreover, the effects of income inequality
have been especially harsh on marginalized communities,
people of color, and groups of Americans who are particularly
vulnerable to current market conditions.
This Note argues that the three sectors of the American
market—the government, private, and nonprofit sectors—have
enabled the current high rates of income inequality as a result
of either a failure or purposeful scheme to sway the market in
favor of a few elite. Consequently, there is the need for the
creation of a fourth sector that is able to alleviate the side effects
of such inequality. This Note argues that the official creation of
a For Profit Social Enterprise (FPSE) sector would be an
effective means of enabling social mobility amongst groups
who are most vulnerable to current market trends. In creating,
growing, and maintaining the FPSE sector, legislation must aim
at strengthening and improving FPSE entity regulations,
creating a FPSE oversight agency, incentivizing social
entrepreneurs, and creating enticing FPSE investment vehicles
to attract private funding from social investors.
NIÑOS, NIÑAS Y ADOLESCENTES IN GUATEMALA: REFLECTIONS
ON THE IMPLEMENTATION OF THE LEY PINA
By Stacy Kowalski ................................................................ 391
This Note examines Guatemala’s Ley de Protección Integral
de la Niñez y Adolescencia (Law for the Comprehensive
Protection of Children and Adolescents, or Ley PINA) and
analyzes why this law has not effectively protected the rights of
children and adolescents, within the context of historical and
structural violence, which contribute to a lack of prioritization
of youth in Guatemala. In 2014, the United States experienced
a large influx of unaccompanied minors fleeing primarily from
Guatemala, Honduras, and El Salvador. A delegate of
attorneys and law students traveled to Guatemala to interview
child advocates, including government officials, and
representatives of non-governmental organizations and the
United Nations, to understand why Guatemala’s legislative
and policy efforts have largely failed to protect its children and
TABLE OF CONTENTS HRPLJ 13-1
adolescents against grave levels of physical, sexual,
psychological, and family violence. This Note draws on these
primary sources, as well as publications from secondary
sources. These sources confirm that the violence in Guatemala
today is shaped by the thirty-six-year civil war and Mayan
genocide, foreign political influence, and deep socioeconomic
inequality. Traditional patriarchal values have contributed to a
practice of treating children as property, not as individuals
with rights. Child advocates in Guatemala agree that the State
does not properly prioritize the protection of children’s rights.
Although the State passed a progressive law, it did not allocate
the necessary budget to actually implement the law, rendering
it ineffectual. The combination of these conditions results in an
ineffective law that is largely not implemented and therefore
does not adequately protect Guatemalan youth.
4 NELSON_MACRO_FINAL.DOCX (DO NOT DELETE)
4/20/2016 8:04 PM
Killing Two Achievements with One
Stone: The Intersectional Impact of
Shelby County on the Rights to Vote and
Access High Performing Schools
STEVEN L. NELSON, J.D., PH.D.*
Introduction
Although the pursuits of educational equity and access to the
electoral franchise were both key components of the Civil Rights
Movement, scholars often speak about educational equity and the
right to vote as separate, coexisting efforts towards achieving civil
rights. It is rare for scholars to discuss the intersection of educational
equity and access to the electoral franchise as a combined approach to
pursuing civil rights. The two are linked, however, given our
country’s propensity for electing school boards.1 School boards are
generally responsible for the operation and supervision of a
jurisdiction’s schools, and nearly all school boards in the United States
are elected.2 School boards, because of their unique position as the
closest form of our representative republic to a direct democracy,
* Dr. Nelson is an Assistant Professor of Leadership and Policy Studies at the
University of Memphis. Dr. Nelson earned his Ph.D. from the Pennsylvania State
University Department of Education Policy Studies and his Juris Doctor from the
University of Iowa College of Law. His research considers the intersectional impacts
of movements towards or from civil rights in education.
1. See generally FREDERICK HESS, SCHOOL BOARDS AT THE DAWN OF THE 21ST CENTURY: CONDITIONS AND CHALLENGES OF DISTRICT GOVERNANCE (2002), http://files.
eric.ed.gov/fulltext/ED469432.pdf [hereinafter NSBA REPORT].
2. Id. at 5.
[225]
226
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[Vol. XIII
often open doors to future political pursuits for Black candidates,
particularly in larger, more urban districts where Black candidates
appear to be slightly overrepresented on elected school boards.3
School board membership may give Black politicians a brand name,
political experience, and perhaps, promote future political
participation4—essentially, school board membership affords Black
candidates a springboard into their political careers.
The Supreme Court’s 2013 decision in Shelby County v. Holder,5
though not ostensibly an educational equity and access case, has and
will have tremendous effects on Black school board candidates’
abilities to earn seats in some areas, and will impact their access to the
peripheral benefits of serving on an elected school board. Moreover,
the Court’s decision in Shelby County has and will impact the ability
of Black electors in majority-minority districts to impact education
policy and the politics of education. This Article uses the rise of selfselected school boards managing charter schools in New Orleans,
Louisiana—the epicenter of the charter school movement—to
problematize the Court’s Shelby County decision. In particular, this
Article addresses the sometimes unstated connection between the
right to vote and the right to equitable educational access.
Specifically, this Article analyzes the data surrounding charter school
board diversity efforts in New Orleans with a necessary discussion of
the relationship between the accountability of popularly elected
school boards and charter school academics. Finally, this Article
makes recommendations for the implementation or reauthorization
of charter school legislation.
3. HESS, supra note 1, at 4.
4. Abe Feuerstein, Elections, Voting and Democracy in Local School District Governance, 16 EDUC. POL’Y, 15–36 (2002).
5. Shelby Cty. v. Holder, 133 S. Ct. 2612 (2013).
4/20/2016 8:04 PM
Summer 2016] KILLING TWO ACHIEVEMENTS WITH ONE STONE
227
I. A Brief History of the Civil Rights Movement’s
Cornerstones: The Electoral Franchise and
Educational Access
Prior to the Voting Rights Act of 1965 (“the Act”), the federal
government
attempted
to
remedy
Black
Americans’
6
disenfranchisement. However, these efforts produced little to no
results in guaranteeing access to political participation through the
electoral franchise.7 Congress long resisted the implementation of
more robust voting rights protections for Black Americans at the
wishes of White southern politicians.8 States also effectively
continued to find alternate paths to exclude Blacks from the political
process despite the fact that the 15th Amendment purported to assure
protection from Black voter disenfranchisement.9 Key anti-civil rights
events10 occurred in 1965 prompting the implementation of sweeping
protections guaranteeing the electoral franchise for Blacks.
The Act included key provisions that aided in the prevention of
Black voter disenfranchisement. The two greatest protections under
6. The 15th Amendment, passed during Reconstruction, was previously the most
notable attempt at remedying voter disenfranchisement. Though partially successful,
the 15th Amendment’s effectiveness faded as the Reconstruction period ended. Due
in part to extreme violence and intimidation, Black Americans—mostly former slaves
and their descendants—remained largely unable to access the electoral franchise, see
generally, Steven L. Nelson, Balancing School Choice and Political Voice: An Analysis
of the Legality of Public Charter Schools in New Orleans, Louisiana Under Section 2
of the Voting Rights Act (Dec. 2014) (unpublished Ph.D. dissertation, Pennsylvania
State University) (on file with author).
7. In particular, the southern region of the United States saw little-to-no results
from previous voting rights activism; other parts of the nation saw little-to-no results,
as well. See U.S. DEP’T OF JUSTICE, HISTORY OF FEDERAL VOTING RIGHTS LAWS: THE
VOTING RIGHTS ACT OF 1965, http://www.justice.gov/crt/history-federal-voting-rightslaws (last updated Aug. 8, 2015) [hereinafter HISTORY OF THE VOTING RIGHTS ACT].
8. S. REP. NO. 97-417, at 12 (1982) (establishing that even after the Act many
Southern states resisted compliance).
9. S. REP. NO. 97-417, at 5 (1982).
10. Bloody Sunday may have had the most impact in spurring Congress to act as
images of Black citizens seeking the franchise—and being beaten for doing so—were
spread, both nationally and internationally.
228
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[Vol. XIII
the Act were section 2 and section 5.11 Section 2 of the Act had national
applicability and generally banned the denial and/or abridgement of
the right to participate in the political process.12 In other words,
section 2’s prohibitions were not limited in the scope of state actions
covered and could be applied generally to any effort to violate a
citizen’s right to vote.13 Section 2 addressed the fact that little to no
progress had been made at the national level in remedying voter
disenfranchisement.14 Unfortunately, section 2’s protections were
remedial in nature and required aggrieved parties to first allege some
realized harm to file suit.15 On the other hand, section 5 targeted
jurisdictions with a history steeped in denying Blacks the right to the
electoral franchise.16 As such, it granted the Department of Justice
increased oversight in the political and electoral processes in these
jurisdictions since they were deemed more likely to create obstacles
to obtaining or maintaining Blacks’ right to vote.17
Section 5 was the most powerful provision of the Act. It granted
the Department of Justice the power to directly attack the systematic
disfranchisement of Black voters in covered jurisdictions. Section 5
required federal approval of all changes to voting schemes of all
depths and breadths; its protections were preemptive.18 Jurisdictions
covered under section 5 were required to submit any changes to the
jurisdiction’s voting laws and procedures for preclearance by federal
officials.19
If a jurisdiction violated section 5’s preclearance
requirements, the new voting procedures would be deemed invalid
11. Nelson, supra note 6.
12. U.S. DEP’T OF JUSTICE, SECTION 2 OF THE VOTING RIGHTS ACT, http://www.jus
tice.gov/crt/section-2-voting-rights-act (last updated Aug. 8, 2015).
13. Id.
14. HISTORY OF THE VOTING RIGHTS ACT, supra note 7.
15. See generally Nelson, supra note 6.
16. U.S. DEP’T OF JUSTICE, ABOUT SECTION 5 OF THE VOTING RIGHTS ACT: THE SHELBY
COUNTY DECISION, http://www.justice.gov/crt/about-section-5-voting-rights-act (last
updated Aug. 8, 2015) [hereinafter ABOUT SECTION 5 OF THE ACT].
17. Id.
18. Id.
19. Id.
4/20/2016 8:04 PM
229
and could be enjoined upon petition from private plaintiffs or the
federal government.20
Section 4 of the Act provided a formula establishing the specific
jurisdictions that were covered under section 5 and those
jurisdictions’ eventual bailout from section 5 coverage.21 Effectively,
a jurisdiction that was required to seek preclearance under section 5
could, after a decade without certain violations of the Act, be excused
from the requirement to seek preclearance. The Supreme Court then
disarmed section 5 of its powers in the Shelby County decision, the
significance of which will be further discussed in Section I.A.22 Thus,
the remedial measures of section 2 are the only significant protections
currently available under the Act for Black voters seeking to gain and
assure racial representation on legislative bodies.23 Section 2’s
remedial measures, however, may not provide adequate voting
protections for Blacks to maintain, retain, or obtain political voice and
participation under extant judicial precedent because section 2 does
not expressly prohibit the vacillation between types of selection
schemes that could impact minority representation.24 In effect,
jurisdictions may now be able to avoid racial diversity on legislative
bodies by simply altering the selection or election scheme affecting
groups formerly covered under section 5.
In the first seventeen years after the Act’s passage, the law
underwent several reauthorizations and amendments. Reauthorizations and amendments necessitated new interpretations of the Act.
During the 1970s, the federal courts held that any voting scheme that
diluted the voting power of Blacks violated the Act.25 However, in
1980 that rule would change; the Supreme Court would conclude that
only voting schemes that intentionally abridged or denied the voting
rights of minorities would violate the Act.26 This new standard, set
20.
21.
22.
23.
24.
25.
26.
Allen v. State Bd. of Elections, 393 U.S. 544 (1969).
Id.
Shelby Cty., 133 S. Ct. 2612.
Nelson, supra note 6.
S. REP. NO. 97–417, at 6 (1982).
See, e.g., White v. Regester, 412 U.S. 755 (1973).
City of Mobile v. Bolden, 446 U.S. 55, 62–64 (1980) (plurality decision).
230
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[Vol. XIII
forth in City of Mobile v. Bolden, required proof of intent as opposed to
result or impact, making it much harder for plaintiffs to prove their
claims.27
In 1982, Congress moved to amend the Act after the Supreme
Court’s decision in Bolden.28 Plaintiffs could once again prove their
cases without proving that voting schemes were intentionally
dilutive; the amendment reestablished the burden of proof that
plaintiffs previously had to meet to establish a section 2 claim.29 The
Supreme Court took its first opportunity to consider the 1982
amendments in Thornburg v. Gingles.30 The Thornburg Court found
that the amended section 2 made clear that the appropriate test for a
section 2 case was the “results test” as opposed to the “intent test.”31
The Court also concluded that the intent test had to be rejected
because Congress believed the intent test was problematic for various
reasons.32 The Court held that that the intent test advocated for in
Bolden pitted communities against each other. Under the intent test,
charges of racism were frequently hurled against community
members.33 Furthermore, the Court found only that intent was
excessively difficult for plaintiffs to prove and did not reach the root
issue of section 2.34 Thus, the Court held that an intent test might only
regulate the most extreme cases of denial or abridgement.35 PostThornburg, Bolden’s intent test has been both rebuked and
repudiated.36 The language of section 2 of the Act, as of the 1982
27. Bolden, 446 U.S. at 62–64.
28. See Thornburg v. Gingles, 478 U.S. 30, 35 (1986).
29. Id. at 43–44.
30. Id. at 35.
31. Id.
32. Id. at 43–44.
33. Id.
34. Id.
35. Id.
36. Id. at 44. However, some courts have viewed the 1982 Amendments as an
amendment to Bolden. E.g., Brown v. Bd. of Comm’rs of Chattanooga, 722 F. Supp.
380, 389 (E.D. Tenn. 1989) (holding that if a system was conceived for a discriminatory
purpose and it continues to serve that purpose, the system is unconstitutional). In
practical terms, this distinction is not material.
4/20/2016 8:04 PM
amendments, was originally codified at 42 U.S.C. § 1973.
language now states, in part:
231
That
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner
which results in a denial or abridgement of the right of
any citizen of the United States to vote on account of race
or color….
(b) A violation of subsection (a) of this section is
established if, based on the totality of the circumstances,
it is shown that the political processes leading to
nomination or election in the State or subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) of this section in that
its members have less opportunity than other members of
the electorate to participate in the political process and to
elect representatives of their choice….37
In addition to the section 2 protections, section 5 of the Act
advanced voting rights protections for minority communities across
the country, especially in the Deep South.38 When the Supreme Court
invalidated section 4 of the Act—practically ending section 5
enforcement—these communities were left with the remedial
measures of section 2 in lieu of the preemptive measures of section 5.39
States are now presumably free to gerrymander electoral districts to
assure political victories for candidates that are not particularly in
favor of the political ideals shared by many in the Black community.
States may also be free to completely rid Black populations of
opportunities to meaningfully participate in the political process
37. 52 U.S.C. § 10301 (2015) (originally codified at 42 U.S.C. § 1973).
38. The following states were covered under section 5 prior to the Court’s decision
in Shelby County and were just recently bailed out of section 5 coverage in their entireties
per the Shelby County decision: Alabama, Alaska, Arizona, Georgia, Louisiana,
Mississippi, South Carolina, Texas, and Virginia. The following states were partially
covered under section 5 prior to the Court’s decision in Shelby County and were just
recently bailed out of section 5 coverage in their entireties per the Shelby County
decision: California, Florida, Hawaii, Idaho, Michigan, New York, North Carolina, and
South Dakota. See ABOUT SECTION 5 OF THE ACT, supra note 16.
232
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[Vol. XIII
through the nixing of popularly elected officials in favor of appointed
boards so long as states’ explicit racial animus is not evident in their
actions.
Although then-Attorney General Eric Holder and the United
States Department of Justice filed multiple actions under section 2
after the Court’s decision in Shelby County,40 political commentary
from various sources indicate that ending section 5 enforcement has
aided in the retrenchment of voting rights protections in the Deep
South.41 In her dissenting opinion, Supreme Court Justice Ruth Bader
Ginsburg mentioned several instances of premature attacks on the
voting rights of minorities.42 Some states moved to restrict the voting
rights of minorities even before or immediately after the dismantling
of the Act’s most powerful restrictions. To add to Justice Ginsburg’s
list, some other states attempted to pass restrictive identification
requirements, which have been linked to the obstruction of political
participation for minority voters.43
Louisiana completely disrupted and displaced the section 5protected, predominately Black and popularly elected Orleans Parish
School Board after Hurricane Katrina decimated its southeast coast.44
The state of Louisiana took advantage of the evacuation of New
40. See, e.g., Complaint, United States v. North Carolina, No. 13-cv-861 (M.D.N.C.
Sept. 30, 2013).
41. Jason Zengerle, The New Racism: This is How the Civil Rights Movement Ends,
NEW REPUBLIC (Aug. 10, 2014), http://www.newrepublic.com/article/119019/civilrights-movement-going-reverse-alabama; Myrna Perez & Vishal Agraharkar, If
Section 5 Falls: New Voting Implications, BRENNAN CTR. FOR JUST. (2013), https://www.
brennancenter.org/sites/default/files/publications/Section_5_New_Voting_Implicati
ons.pdf.
42. Shelby Cty., 133 S. Ct. at 2646–47.
43. See, e.g., Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015) (striking down restrictive provisions of a proposed Texas Voter Identification Law); but cf. Alice Ollstein,
After Alabama Enforces Voter ID, Shuts Down DMVs in Black Communities, Lawmaker
Wants Investigation, THINK PROGRESS (Oct. 6, 2015, 10:56 AM), http://thinkprogress.
org/politics/2015/10/06/3709020/alabama-dmv-voters/ (questioning the motives behind the implementation of voter identification requirements need in Alabama that
occur just prior to the closure of facilities that produce the required forms of
identification).
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233
Orleans’s predominately Black population to install an appointed,
predominately White and state-run school board that gave way to
self-selected, predominately White charter school boards.45 The
usurping of Black political and electoral power as pertaining to
education policy in New Orleans occurred under the restrictive watch
of section 5. Other reductions in Black voting protections and rights
still occur even though Blacks in the Deep South continue to play a
critical role in national politics.46
While Black Americans played a crucial role in electing the first
Black President, President Barack Obama, to the White House, there
are less obvious indicators of Black political involvement and
influence.47 In congressional elections, Black voters typically exercise
political influence by electing moderate or liberal White politicians to
office.48 In Louisiana, Mary Landrieu, the former-Democratic Senator,
relied on a large Black voter turnout to maintain her position in the
United States Senate.49 Some observers have, however, noted that
Black voters are not encountering similar and sustained electoral
success at the state and local level as they are at the federal level.50
This is true in Louisiana where there has never been a Black
governor,51 even with a third of the state’s population being Black.
Moreover, the state of Louisiana has had a decorated past of denying
the electoral franchise to minorities, even within the last decade.52
The crippling of section 5’s robust and powerful protections adds
to the list of cases that have retracted civil rights for minority groups.
Arguably, it is no coincidence that these cases began with seeking
45. Steven L. Nelson, Gaining Choice and Losing Voice: Is the New Orleans Charter
School Takeover a Case of the Emperor’s New Clothes?, in ONLY IN NEW ORLEANS: SCHOOL
CHOICE AND EQUITY POST-HURRICANE KATRINA 237, 246–47 (Luis Miron, Brian R.
Beabout, & Joseph Boselovic eds., 2015) [hereinafter Gaining Choice and Losing Voice].
46. Zengerle, supra note 41.
47. Id.
48. Id.
50. Zengerle, supra note 41.
51. Debo P. Adegbile, Voting Rights in Louisiana: 1982-2006, at 10 (2006), http://
www.protectcivilrights.org/pdf/voting/LouisianaVRA.pdf.
52. Id.
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[Vol. XIII
educational equity in public primary and secondary schools. Closely
scrutinizing the history of education law allows one to ascertain the
true depth of possible retrenchment that resulted from the Court’s
holding in Shelby County. The Supreme Court began to show signs of
exhaustion with the Civil Rights Movement as early as the mid-1970s.
School desegregation had experienced a short peak in the two prior
decades. Due largely in part to the Court’s efforts at consensus
building, previous Courts unanimously held in favor of Black
plaintiffs seeking once limited, if not totally foreclosed, educational
opportunities to Black students.
This era started in the 1950s when the Supreme Court held that
the state of Texas violated the Equal Protection Clause of the
Fourteenth Amendment when it created a law school for its Black
students as a method of avoiding the integration of its all-White law
school.53 The Court then unanimously decided that under the same
constitutional provision the state of Oklahoma could not mandate that
a Black student, admitted to graduate school, be required to sit in the
hallway near a classroom to prevent the integration of Black and
White students.54 This run of unanimity continued with Brown v.
Board of Education (Brown I).55 Brown I overturned the separate but
equal policy advanced in Plessy v. Ferguson56 and explicitly required
school districts nationwide to desegregate their schools.57 Brown I and
Brown II,58 the latter of which required schools to desegregate with “all
deliberate speed,” have become stalwarts of desegregation efforts
though some scholars have argued against such a solitary and
restrictive method of achieving educational equity.59
53. Sweatt v. Painter, 339 U.S. 629 (1950).
54. McLaurin v. Okla. State Regents, 339 U.S. 637 (1950).
55. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954).
56. Plessy v. Ferguson, 163 U.S. 537 (1896).
57. Although the school desegregation cases had national affect and effect, the
primary area of focus in desegregating schools was in the American South. Northern
segregation was, to some extent, not viewed as a problem (see Gary Orfield, Prologue:
Lessons Forgotten, in Erica Frankenberg & Gary Orfield, LESSONS IN INTEGRATION:
REALIZING THE PROMISE OF RACIAL DIVERSITY IN AMERICAN SCHOOLS 1–6 (2007).
58. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955).
59. Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests
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235
Throughout the 1960s, the Court extended its run of unanimous
rulings in favor of school desegregation and educational equity for
minority students. In 1968, a unanimous Court ruled that minimalist
desegregation strategies, or strategies that effectively maintained the
status quo, were unsatisfactory under the order issued in Brown II.60
In Green v. County School Board of New Kent County,61 the Court
established an integration checklist to determine if meaningful
desegregation had occurred in a given school district. The Green
factors consider the racial proportions of students, faculty, and staff
assigned to specific schools, as well as absolute equality of
transportation, facilities, and extracurricular activities.62 Until the
early 1990s, school districts were required to fulfill all of these
requirements in relative temporal proximity to each other to escape
federal district court supervision.63
In the early-to-mid 1990s, the Court issued a series of rulings that
placed barriers in the path of meaningful efforts at desegregating the
nation’s public schools.64 After Freeman v. Pitts,65 school districts could
fulfill these requirements individually or all at once, notwithstanding
the time of each individual fulfillment.66 When combining the
implications of Freeman with the Court’s decision on school
in School Desegregation Litigation, 85 YALE L.J. 470, 470–516 (1976).
60. Green v. Cty. Sch. Bd., 391 U.S. 430 (1968).
61. Id.
62. Id.
63. In 1992, in Freeman v. Pitts, 503 U.S. 467 (1992), school districts were generally
thought to be required to fulfill all Green factors simultaneously to achieve unitary
status. Post-Freeman, it was clear that the Court would allow school districts to fulfill
the Green factors in a piecemeal fashion, and once all Green factors were fulfilled—
notwithstanding the contemporaneous nature or lack thereof of the fulfillment(s)—
school districts would be released from federal supervision.
64. See, e.g, Freeman, 503 U.S. 467 (1992); see also, Missouri v. Jenkins, 515 U.S. 70
(1995).
65. Freeman, 503 U.S. 467.
66. The piecemeal fulfillment of Green factors often resulted in regression to segregative practices, and that regression was a notable consequence to the evaluation
of the fulfillment of other Green factors (see Gary Orfield, Turning Back to Segregation, in
DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION 1–
22 (Gary Orfield et al. eds., 1996).
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desegregation immediately preceding Freeman, school districts could
address one Green factor at a time.67 Once unitary status of each
individual factor was achieved, school districts were completely free
of federal mandates to address existing or prevent future school
segregation.68 Gary Orfield of the Civil Rights Project, a nationally
recognized expert on school desegregation, has asserted that school
districts were not only free of mandates to desegregate schools, but
under federal cases, such as Board of Education v. Dowell, Freeman and
Missouri v. Jenkins, school districts released from federal supervision
were also free to commence plans that would revert to practices that
led to the initially violative segregation of public schools.69
In the early 1970s, proponents of desegregated schools continued
to win in federal court although to a lesser extent. The Court
continued with unanimous decisions; as time progressed, however,
judicial decisions became split, with consensus-building becoming
less important than it was in the 1950s and 1960s. In Swann v.
Charlotte-Mecklenberg Board of Education,70 a unanimous Supreme
Court upheld the busing of students to and from school as a remedy
for de jure segregation. The Court, in Swann, reached a unanimous
decision, but the Court’s consensus began to dissolve by 1972. Wright
v. Council of City of Emporia71 and United States v. Scotland Neck City
Board of Education72 are both cases where proponents of school
desegregation avoided attempts to resegregate (or maintain
segregation) in public schools, but neither case enjoyed the consensus
opinion won before previous Courts. In both Wright and Scotland
Neck, all of the justices agreed in the result of the case, despite the fact
that four justices in each case submitted varying rationales for
reaching the holding in each case.
67.
68.
69.
70.
71.
72.
Freeman, 503 U.S. at 490–91.
Bd. of Educ. v. Dowell, 498 U.S. 237, 247–48 (1991).
Orfield, supra note 57, at 2.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30 (1970).
Wright v. Council of City of Emporia, 407 U.S. 451 (1972).
United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484 (1972).
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237
The cracks in the former consensus became insurmountable in
the first Milliken v. Bradley decision.73 In Milliken I, the Court limited
school desegregation plans to only those districts previously guilty of
de jure segregation.74 A majority of the Court drew a line in the
proverbial sand of desegregation and used artificial and arbitrary
geographic boundaries to do so. Post-Milliken I, integration-minded
school officials were left with the option to pursue equal educational
opportunity as opposed to desegregation in effectuating educational
equity.75 In effect, Milliken I chilled efforts at school desegregation.
Even state statutes pursuing integration became ineffective at
remedying segregation.76 Moreover, the guidance from the second
Milliken decision and other legal remedies aimed at increasing
financial capital for struggling minority school districts continued to
be of no or very little avail in efforts to funnel more money into
disproportionately poor and minority schools.77
As the Supreme Court reneged on its promise to desegregate the
nation’s public schools, there was a simultaneous return to segregated
schools. Research by the Civil Rights Project stated that the only
concentrated period of school integration was the decade
immediately following the enactment of the civil rights legislation of
the 1960s.78 This same research reported statistics that supported the
conclusion that schools became increasingly segregated over the
73. Milliken v. Bradley (Milliken I), 418 U.S. 717 (1974).
74. Id. at 752–53.
75. See Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977).
76. Steven L. Nelson & Alison C. Tyler, Examining Pennsylvania Human
Relations Commission v. School District of Philadelphia: Considering How the Supreme
Court’s Waning Support of School Desegregation Affected State-Based Desegregation Efforts,
40 SEATTLE UNIV. L. REV. (forthcoming 2017).
77. Cf. Alison Morantz, Money and Choice in Kansas City: Major Investments with
Modest Returns, in DISMANTLING DESEGREGATION, supra note 66, at 241.
78. GARY ORFIELD ET AL., CIV. RTS. PROJECT, E PLURIBUS . . . SEPARATION: DEEPENING
DOUBLE SEGREGATION FOR MORE STUDENTS 7–10 (2012), http://civilrightsproject.ucla.
edu/research/k-12-education/integration-and-diversity/mlk-national/e-pluribus...separati
on-deepening-doublesegregation-for-morestudents/orfield_epluribus_revised_complete
_2012.pdf.
238
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decades immediately following the 1960s.79 Thus, efforts at school
desegregation became regressive, and not simply static, following the
end of affirmative civil rights legislation. In particular, there has only
been significant progress in integrating the most segregated schools
in the country—those schools that are almost exclusively filled with
students of one race; the integration of all other schools has faltered
severely since the 1960s.80 This is unsettling considering the plethora
of literature that supports the notion that students in integrated
schools have better academic, social, and occupational trajectories
than students in segregated schools.81 The increasing number of
charter schools only contributes to the already-increasing segregation
in public schools,82 which are now more segregated than they were
during de jure segregation.83
Nonetheless, these schools may still provide adequate
educational experiences for their chiefly minority student bodies even
though judicial rulings continue to promote segregative policies.
Some literature suggests that assuring adequate minority
representation on school boards—at least in the traditional public
school setting—is one method of providing for educational equity.84
Further research is necessary to determine if this correlation also
79. ORFIELD ET AL., supra note 78, at 76.
80. Id.
81. See generally Erica Frankenberg, Introduction: School Integration—The Time
Is Now, in LESSONS IN INTEGRATION: REALIZING THE PROMISE OF RACIAL DIVERSITY IN
AMERICAN SCHOOLS 7–27 (Erica Frankenberg & Gary Orfield eds., 2007).
82. ERICA FRANKENBERG ET AL ., CIVIL RTS. PROJECT, CHOICE WITHOUT EQUITY:
CHARTER SCHOOL SEGREGATION AND THE NEED FOR CIVIL RIGHTS STANDARDS 37–38 (Jan.
2010), http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversi
ty/choice-without-equity-2009-report/frankenberg-choices-without-equity-2010.pdf.
83. ORFIELD ET AL., supra note 78, at 76.
84. See MICHAEL BERKMAN & ERIC PLUTZER, TEN THOUSAND DEMOCRACIES: POLITICS
AND PUBLIC OPINION IN AMERICA’S SCHOOL DISTRICTS (2010); Ted Robinson et al., Black
Resources and Black School Board Representation: Does Political Structure Matter? 66 SOC.
SCI. Q. 976 (1985); Kenneth J. Meier & Robert E. England, Black Representation and
Educational Policy: Are They Related?, 78 AM. POL. SCI. REV. 392, 397 (1984); but see
Joseph Stewart, Jr. et al., Black Representation in Urban School Districts: From School
Board to Office to Classroom, 42 W. POL. Q. 287 (1989) (questioning the relationship
between descriptive representation and substantive representation).
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239
holds true for public charter schools.85 Just as integrated schools are
linked to better academic results for minority students, the presence
of minority school board members is linked to better academic
indicators (outside of test scores). Another study, in the context of
New Orleans, found that a lack of political accountability has
produced greater entry points into the school-to-prison pipeline for
students.86
A. The Impact of Invalidating Section 4 of the Voting Rights
Act of 1965
The Supreme Court issued its most important and
groundbreaking decision on the Act in 2013. In Shelby County, the
Court held that Congress’ reauthorization of the coverage formula for
section 4 of the Act was unconstitutional.87 Shelby County, a section
5-covered jurisdiction in Alabama, challenged section 4(b) and section
5 of the Act as facially unconstitutional.88 Despite the fact that two
federal courts had found Congress’ evaluation of substantial evidence
in support of the Act’s most extreme—and effective—provisions, the
85. Compare Steven L. Nelson & Jennifer E. Grace, The Right to Remain Silent in
New Orleans: The Role of Self-Selected Charter School Boards on the School-to-Prison
Pipeline, 40 NOVA L. REV. (forthcoming Spring 2016) (finding links between better
student outcomes and more traditional educational approaches) with Christine H.
Roch & David W. Pitts, Differing Effects of Representative Bureaucracy in Charter Schools
and Traditional Public Schools, 42 AM. REV. PUB. ADMIN. 282 (2012) (finding better links
between better student outcomes and less traditional educational approaches, not
looking at teacher representation which is weakly correlated to board representation).
86. Nelson & Grace, supra note 85 (finding that school boards in New Orleans
that were not politically accountable were more likely to report dropout rates and
disciplinary rates that exceeded Louisiana state averages and also finding that school
boards that lacked political accountability were more likely to report college
matriculation rates that lagged behind the Louisiana state average); see also, Kenneth
J. Meier & Joseph Stewart, Jr., The Impact of Representative Bureaucracies: Educational
Systems and Public Policies, 22 AM. REV. PUB. ADMIN. 157 (1992) (discussing the various
methods of measuring substantive representation).
87. Shelby Cty., 133 S. Ct. 2612.
88. Id. at 2621–22.
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Court concluded otherwise.89 The Court reasoned that enforcement
of section 5 had become more stringent over time despite dramatic
improvements among some measures of voting equality,90 and that
other states—some with similar breaches of voting protections for
minorities—were also not covered under section 5.91 This ultimately
led the Court to agree with the findings of a dissenting federal appeals
court judge: that coverage under section 5 was an indicator of greater,
not lesser, political participation among minorities.92
The majority opinion in Shelby County discussed whether
improvements in political participation, measured by voter
registration and voter turnout gaps, were the product of section 5
coverage. This discussion, however, was limited to the past successes
of section 5, not the continued need for section 5’s protections.93 The
Court decided that the coverage formula of section 4, which had not
been altered in recent amendments to the Act, was unconstitutional.94
The Court issued its ruling in spite of the fact that the Court itself had
recognized that voting discrimination still existed.95
While some have argued that Justice Ginsburg’s dissent in Shelby
County was scathing, the Justice’s response to the majority opinion
appears to reveal as much confusion as anger. Justice Ginsburg’s
dissent questions whether the Act’s most effective tool to remedy
voting discrimination was a victim of its own success.96 Moreover,
Justice Ginsburg’s dissent argues there is more work to be done in the
area of voting rights in the Deep South.97 Justice Ginsburg also
89. Shelby Cty., 133 S. Ct. at 2621–23.
90. Id. at 2625–27.
91. Id. at 2629 (citing Northwest Austin v. Holder, 557 U.S. 193 (2009), to assert that
section 5 must determine the coverage states in an equitable and sensible manner).
92. Id. at 2622.
93. Id. at 2624–28.
94. Id. at 2627–28.
95. Id. at 2633 (J. Ginsburg, dissenting).
96. Id. at 2633–34 (J. Ginsburg, dissenting).
97. Id. at 2612, 2645 (J. Ginsburg, dissenting) (The Deep South, including Texas, but
excluding Florida and Arkansas, continues to lead the nation in the race for the dubious
honor of having the most confirmed incidents of voting discrimination. In particular,
Alabama was second only to Mississippi in successful section 2 challenges).
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241
discusses the changing nature of voting rights challenges, specifically:
first-generation issues—access to the franchise—versus secondgeneration issues—accessing adequate and effective representation.98
Justice Ginsburg’s confusion might originate from the fact that the
majority opinion, to a great extent, agrees that there is work to do in
promoting voting rights. The majority, in one watershed decision,
chose to eliminate section 4 and restrict section 5, two of the Act’s most
powerful provisions.
To be clear, the Court’s holding in Shelby County kept section 5
intact, but it is now practically unenforceable without a functioning
section 4 because section 4 dictates which jurisdictions are to be
covered under section 5. The Court also left open the door to reinstate
the bail-in provisions of section 4. Once the Court issued its holding
in Shelby County, scholars immediately began to analyze the holding’s
prospective impact on elections of national import. The holding’s
impact on local elections did not garner as much attention
immediately upon the release of the Court’s decision.
Furthermore, another cornerstone of the Civil Rights
Movement—equal
educational
access—was
simultaneously
undergoing substantial change in the form of the charter school
movement. As the number of charter schools increased, the number
of self-selected governing boards of those schools also increased.
Presumably, an enforceable section 5 could be used to restrict these
changes if the changes negatively affected minority voters in
jurisdictions covered under section 5. However, the Court’s holding
in Shelby County, in combination with the increased momentum of the
charter school movement provided the perfect storm of confusion for
the results of the Civil Rights Movement.
Two of the Act’s guarantees—protecting minority voting rights
and integration, the preferred method of gaining access to equitable
education—were at risk of retraction, if not outright defeat. While
access to a charter school education has been framed as a civil right to
a quality education,99 the lack of electoral accountability for charter
98. Shelby Cty., 133 S. Ct. at 2635.
99. Janell Scott, School Choice as a Civil Right: The Political Construction of a Claim
242
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schools,100 the fact that charter schools may contribute to the schoolto-prison pipeline,101 and the fact that charter schools are more
segregated than public schools102 juxtaposes the concept of charter
schools to traditional concepts of civil rights.103
In most areas of the country, charter schools encompass only a
small share of the public school enrollment, so there appears to be
very little need to address how the charter school movement affects
voting rights and broadly defined political participation for Blacks on
a national level. New Orleans, however, stands in contrast to the rest
of the nation. Its predominately Black voting age population and
almost entirely charter school educational structure provide the ideal
case study for evaluating Black communities’ ability to hold its
policymakers and implementers politically accountable under a near
exclusive, self-selected charter school governance regime. Assessing
the impact of charter schools on Blacks’ political power in New
Orleans is also important because New Orleans’s school reform
movement has been touted as a miracle in urban renewal and a
national model for urban school reform.104
A review of pertinent legal cases reveals that issues of
educational equity and equal educational access have not been a top
priority for the Supreme Court in recent years. The Court’s decision
in Shelby County, while not a decision about educational equity, may
have practical effects on the ability of Blacks to obtain, maintain and
retain political involvement at the local—especially school board—
level. The remainder of this Article will examine whether state
and its Implications for School Desegregation, in INTEGRATING SCHOOLS IN A CHANGING
SOCIETY: NEW POLICIES AND LEGAL OPTIONS FOR A MULTIRACIAL GENERATION 32, 32–52
(2011).
100. Gaining Choice and Losing Voice, supra note 45.
101. Nelson & Grace, supra note 83.
102. See generally Erica Frankenberg, Genevieve Siegel-Hawley & Jia Wang, Choice
Without Equity: Charter School Segregation, 19 EDUC. POL’Y ANALYSIS ARCHIVES 1 (2011),
http://epaa.asu.edu/ojs/article/view/779.
103. Steven L. Nelson & Heather N. Bennett, At the Intersection of the Voting Rights
Act, the Equal Protection Clause and the School Choice Movement: Have the Courts Built a
House of Cards? 10 DUKE J. CON. LAW & PUB. POL’Y (forthcoming May 2016).
104. Nelson, supra note 6, at 24.
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243
constitutional provisions requiring elected school boards might
provide additional protections for Black and/or Brown voters seeking
to influence school board composition through the political process.
If this is not the case, the Court’s holding in Shelby County could
pose an additional obstacle to educational equity in New Orleans’s
public and almost uniformly chartered schools. In particular, New
Orleans and most of Louisiana’s public charter schools utilize selfselected governing boards with little local political accountability
through the voting process. Thus, predominately Black school
districts that are taken over by the state consequently lose the ability
to impact education policy and the politics of education. These
districts also experience a reduced ability to influence race relations
in schools because minority school board members who might act to
ameliorate race-related issues are no longer present. This is true
because Louisiana is free to create alternative boards with more
political power than the school board elected by the predominately
Black electorate in New Orleans.
II. Charter Schools and the “New Civil Right:” Proven
Issues, Debatable Achievement, and a Mirage of
Accountability?
It is important that scholars research the impacts of the charter
school movement for various reasons. The rapid growth of charter
schools cannot be contested. Charter schools have experienced
substantial and exponential growth since their creation in 1991.105 In
just over two decades of existence, charter schools have faced an
assemblage of legal challenges. These schools have, for the most part,
survived those challenges and continued to thrive. At least one state,
however, has found the funding formula for charter schools to violate
105. FAILED PROMISES: ASSESSING CHARTER SCHOOLS IN THE TWIN CITIES, INST. ON
RACE & POVERTY 3 (2008), http://www1.law.umn.edu/uploa ds/5f/ca/5fcac972c2598a7a5
0423850eed0f6b4/8-Failed-Promises-Assessing-Charter-Schools-in-the-Twin-Cities.pdf.
244
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the state constitution since charter schools do not have elected
governing bodies.106
Legislation that authorizes charter schools is now almost
universally found across the United States even though charter
schools did not exist a quarter of a century ago.107 Currently, fortyfour states and the District of Columbia have charter school
legislation.108 Charter schools are experiencing growth in the number
of jurisdictions served as well as in both the number of operating
schools and the number of students served. Nationally, charter
schools account for about 6,500 schools109 and serve well over 2.5
million students110 with a near supermajority of charter schools
reporting that they have students on a waiting list.111
While there is some evidence that states have sought to slow the
pace of charter school growth by caps or moratoriums,112 more states
have started lifting caps on charter schools.113 Federal legislation and
106. See League of Women Voters v. Wash., No. 89714-0 (Wash. Sept. 4, 2015),
http://www.courts.wa.gov/opinions/pdf/897140.pdf.
107. Choice & Charter Schools: Laws & Legislation, THE CTR. FOR EDUC. REFORM,
https://www.edreform.com/issues/choice-charter-schools/laws-legislation/ (last visited
Mar. 20, 2016) (noting that Kentucky, Montana, Nebraska, North Dakota, South Dakota,
Vermont, and West Virginia do not have charter school authorizing legislation).
108. Id.
109. School Choice & Education: By the Numbers, THE CTR. FOR EDUC. REFORM,
https://www.edreform.com/2014/12/school-choice-education-by-the-numbers/ (last visited Feb. 18, 2016).
110. Id.
111. THE CTR. FOR EDUC. REFORM, ANNUAL SURVEY OF AMERICA’S CHARTER SCHOOLS, at
3 (2010). A more recent report, however, questions this waiting list data. In particular,
the report alleges that the waiting list data is suspect because the numbers are too
exact, unverifiable and do not adjust for a lack of backfilling. See KEVIN G. WELNER &
GARY MIRON, WAIT! WAIT. DON’T MISLEAD ME!: NINE REASONS TO BE SKEPTICAL ABOUT
CHARTER SCHOOL WAITLIST NUMBERS (2014), http://nepc.colorado.edu/publication/char
ter-wa itlists.pdf.
112. SCHOOLS, MEASURING UP: NO CAPS, http://www.publiccharters.org/law-data
base/caps/ (last visited Feb. 18, 2016) (listing some states, such as Maine, restricting
charter schools statewide to a total of ten within ten years).
113. THREE STATES LIFTING CHARTER CAPS?, AM. SCH. CHOICE, http://americansch
oolchoice.com/three-states-lifting-charter-caps/ (last visited Mar. 12, 2016) (citing that
more than half of states with charter school authorization legislation do not cap the
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245
policy have also encouraged their expansion. For example, thenSecretary of Education Arne Duncan proclaimed that states that
closed or limited charter schools’ growth would encounter barriers in
the competitive “Race to the Top” grant114 application process.115
Though some scholars argued that Race to the Top would not produce
meaningful change due to political obstacles, it is unmistakably
apparent that the federal pressure to enable charter schools was
present and effective in the Race to the Top program.116 Attesting to
this argument’s credibility is the fact that charter schools, while
unproven in the areas of integration, and academic innovation and
performance, receive significantly more money in the federal budget
than do their more proven school choice counterparts—magnet
schools.117 Charter schools are not a passing fad; they are a part of the
American educational system and will likely remain so for the
immediate future.
Issues of race and equity crescendo concomitantly with the rise
of charter schools. Charter school students are more segregated than
their traditional public school counterparts, an important measure of
educational equity.118 Black charter school students are approxi-
number of operating charters, and three more states are considering lifting caps on
the number of operating charter schools).
114. “Race to the Top” was perhaps President Barack Obama’s most important
education policy prior to the recent passage of the Every Student Succeeds Act. Race
to the Top sought to select only a few states for large grants to improve student
achievement. In order to receive Race to the Top funds, states aspiring to the grant
were required to adopt numerous items from the school reform agenda, including
embracing school choice and teacher evaluations that embraced merit pay.
115. Arne Duncan, Education Reform’s Moon Shot, WASH. POST (July 24, 2009),
http://www.ode.state.or.us/superintendent/yat/meetings/arne-duncan-announcingthe-guidelines.pdf; Press Release, White House, States Open to Charters Start Fast in
“Race to Top” (June 8, 2009), http://www2.ed.gov/news/pressreleases/2009/06/0608
2009a.pdf.
116. Patrick McGuinn, Stimulating Reform: Race to the Top, Competitive Grants and
the Obama Educational Agenda, 26 EDUC. POL’Y 136, 152 (2012).
117. GENEVIEVE SIEGEL-HAWLEY & ERICA FRANKENBERG, REVIVING MAGNET SCHOOLS:
STRENGTHENING A SUCCESSFUL CHOICE OPTION 5 (2012).
118. See Iris C. Rotberg, Charter Schools and the Risk of Increased Segregation, 95 PHI
DELTA KAPPAN 28 (2014); Erica Frankenberg et al., supra note 102; David R. Garcia, The
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[Vol. XIII
mately twice as likely to attend a charter school that is 90–100%
minority as their counterparts are likely to attend a similar traditional
public school.119 Erica Frankenberg and her colleagues found that half
of Latino students in charter schools attended such apartheid
schools.120 Similarly, more than two of every five Black charter school
students attended a school that was almost exclusively students of
color.121 These statistics are dismaying, at best, because higher
concentrations of minority students are statistically connected to
poorer educational, social and occupational opportunities, due in part
to the availability of fewer human and financial resources.122
The continued proliferation of charter schools in minoritypopulated areas aids in further segregation of charter school
students.123 A 2010 study commissioned by the Civil Rights Project
found that many charter schools operate in predominately minority
areas and result in disproportionate minority subscription.124 Other
studies corroborate the findings of the Civil Rights Project.125 These
charter schools often start with idealistic and noble missions: to
provide high-quality and equitable education to low-income,
minority students.126 The report from the Civil Rights Project, though
attacked for its methodology,127 identified charter schools as hyper-
Impact of School Choice on Racial Segregation in Charter Schools, 22 EDUC. POL’Y 805
(2007); Yongmei Ni, Are Charter Schools More Racially Segregated than Traditional Public
Schools?, 30 POL’Y REP. 6 (2007).
119. FRANKENBERG ET AL., supra note 82, at 6–7.
120. Id. at 26.
121. Id.
122. See RICHARD KAHLENBERG, BROOKINGS INST., ALL TOGETHER NOW: CREATING MIDDLE-CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE (2001).
123. FRANKENBERG ET AL., supra note 82.
124. Id.
125. Rotberg, supra note 118; Garcia, supra note 118; Ni, supra note 118.
126. See A SURVEY REPORT ON EDUCATION REFORM, CHARTER SCHOOLS, AND THE DESIRE
FOR PARENTAL CHOICE, in THE BLACK COMMUNITY, BLACK ALLIANCE FOR EDUC. OPTIONS
(2013), http://scoter.baeo.org/news_multi_media/20130723-Survey%20Reort-EW%5B9%
5D.pdf.
127. Gary W. Ritter, Nathan C. Jensen, Brian Kisida & Daniel H. Bowen, Choosing
Charter Schools: How Does Parental Choice Affect Racial Integration (Nat’l Ctr. for the
Study of Privatization in Educ., Working Paper 2012) (on file with author).
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247
segregated as well hyper-isolated.128 Even detractors of Choice
Without Equity found that charter schools were more segregated than
traditional public schools, although those same individuals
questioned the extent and importance of racial segregation in charter
schools.129 Even assuming, arguendo, that the detractors are correct—
charter schools are less segregated than leading research suggests—it
is problematic that charter schools are more segregated than
traditional public schools, which are themselves in a period of high
segregation, especially if segregation is linked to lower student
achievement.130 Of course, this line of argument assumes that families
who are racial and/or ethnic minorities are not self-segregating. A
rebuking of self-segregation is a simple euphemism for telling parents
who are racial and/or ethnic minorities how to best raise their
children, a slippery slope of replacing parental decision-making on
where and how to educate children from predominately minority
populations.
Charter schools, despite their issues with segregation, have
found tremendous support in minority communities. In a 2010
survey conducted by Harvard’s Program on Educational Policy
Governance and Education Next, a near supermajority of Black
Americans supported charter schools while less than one in six Black
Americans opposed charter schools.131 Nationally, the number of
supporters of charter schools is well short of half for all races
combined.132 The apparent affinity of Black Americans for charter
schools is reasonable given their potential benefits.133 Scholars have
argued that charter schools—rather than traditional public schools—
128. FRANKENBERG ET AL., supra note 82.
129. Ritter et al., supra note 127 (oscillating between city-based and metropolitanbased data to reach a conclusion that students in the Little Rock Metropolitan area
are only slightly more racially isolated in charter schools).
130. ORFIELD ET AL., supra note 78.
131. WILLIAM HOWELL, MARTIN WEST & PAUL E. PETERSON, MEETING OF THE MINDS
23 (2011), http://educationnext.org/files/ednext_2010_Survey_Article.pdf (finding
that sixty-four percent of Black Americans support charter schools and only fourteen
percent oppose).
132. Id.
133. ORFIELD ET AL., supra note 78.
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may more effectively serve the needs of Black and Brown students.134
Preston Green, of the University of Connecticut and Julie Mead, of the
University of Wisconsin, leading scholars on school reform and civil
rights, also highlighted the following potential benefits: charter
schools are able to adopt educational themes that specifically address
the educational needs of students of color, have small school sizes,
and are more flexible in hiring teachers.135 While some scholars have
emphasized the negative and uncertain effects of charter schools,136
Black and Brown parents, key stakeholders in movements for
educational equity, appear to be choosing charter schools when that
option is available.137
Given the resilient public relations teams supporting charter
schools, it is not surprising that they are perceived as benefitting
minority and low-income stakeholders.
Pro-charter school
organizations have convinced the general public that parental choice
is a civil right.138 This perspective combined with prevailing
134. See Preston C. Green, III, Preventing School Desegregation Decrees From Becoming Barriers to Charter School Innovation, 144 EDUC. L. REP. 15 (2000); see also Robin
Barnes, Black America and School Choice: Charting a New Course, 106 YALE L.J. 2375
(1997).
135. See PRESTON C. GREEN & JULIE MEAD, CHARTER SCHOOLS AND THE LAW: ESTABLISHING NEW LEGAL RELATIONSHIPS (2004).
136. See Preston C. Green, III, Erica Frankenberg, Steven L. Nelson & Julie Rowland,
Charter Schools, Students of Color and the State Action Doctrine: Are the Rights of Students of
Color Sufficiently Protected? 18 WASH. & LEE J. CIV. RTS. & SOC. JUST. 253 (2012); Erica
Frankenberg, Charter Schools: A Civil Rights Mirage? 47 KAPPA DELTA PI REC. 100 (2011)
[hereinafter A Civil Rights Mirage]; Pamela Frazier-Anderson, Public Schooling in PostHurricane Katrina New Orleans: Are Charter Schools the Solution or Part of the Problem? 93 J.
AFR.-AM. HIST. 410 (2008); Luis Miron, The Urban School Crisis in New Orleans: Pre- and PostKatrina Perspectives, 13 J. EDUC. FOR STUDENTS PLACED AT RISK 238 (2008).
137. HOWELL ET AL., supra note 131 (This study may be less accurate a picture in
New Orleans since nearly all of New Orleans’s public schools are now charter
schools); see generally NAT’L ALLIANCE FOR PUB. CHARTER SCH., MARKET SHARE REPORT
(2013),
http://www.publiccharters.org/wp-content/uploads/2013/12/Market-ShareReport-2013.pdf (New Orleans has since chartered most of its remaining traditional
public schools although not all public schools in the city are charter schools).
138. Jennifer Jacobs, Ted Cruz in Iowa: School Choice is “Civil Rights Issue,” DES
MOINES REG. (Mar. 18, 2014), http://blogs.desmoinesregister.com/dmr/index.php/20
14/03/18/texas-republican-ted-cruz-speaks-to-iowa-homeschool-families; Joan Kele-
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249
narratives of failing public schools, dating back to A Nation at Risk,139
has resulted in an attack on traditional public schools as being
ineffective at their primary mission: educating students. The
narrative of failing public schools has been targeted to specifically
address the failure to educate perhaps the most vulnerable student
populations: low-income and minority students.
Advocates for these students, unable to overcome the obstacles
to educational equity that the Supreme Court constructed in Milliken,
have now sought to overcome Milliken through methods that might
result in or ignore the problems of segregated schools. This focus has
been predominately on providing low-income and minority students
access to quality schools or equal educational opportunity, regardless
of the school’s status as segregated, desegregated or integrated. The
Milliken I decision effectively banned the incorporation of suburban
districts in the desegregation efforts of urban districts because it could
not be proven that suburban districts or the state produced policies
that resulted in the segregation of schools.140 The result of Milliken I
was that desegregation was improbable, if not impossible, due to the
lack of a sufficient number of White students to facilitate
desegregation.
This “new civil right,” school choice, has been framed as a selfactualization mechanism.141 Beyond being such a mechanism, others
her, Parental Choice Is A Civil Rights Issue, CHI. TRIB. (Apr. 2, 2013), http://articles.
chicagotribune.com/2013-04-02/opinion/chi-20130402-keleher_briefs_1_school-vouchersparental-choice-other-school-choice-options; Reverend H. K. Matthews, Alabama Accountability Act’s Parental Choice is an Extension of the Civil Rights Movement, AL.COM (Aug. 25,
2013, 2:04 PM), http://www.al.com/opinion/index.ssf/2013/08/alabama_accountability_
acts_pa.html; Michelle Bernard, School Choice is the Most Critical Civil Rights Issue of Our
Time: It’s the Modern Extension of Brown v. Board of Education, U.S. NEWS (Feb. 1, 2011,
12:20 PM), http://www.usnews.com/opinion/articles/2011/02 /01/school-choice-is-themost-critical-civil-rights-issue-of-our-time; Support Parental Choice in Education is Our
Civil Right, STAR LEDGER (Jan. 24, 2010), http://www.nj.com/opinion/times/oped/index.
ssf?/base/news-0/1264315512 205100.xml&coll=5 [hereinafter Support Parental Choice].
139. NAT’L COMM’N ON EXCELLENCE IN EDUC., U.S. DEPT. OF EDUC., A NATION AT
RISK: THE IMPERATIVE FOR EDUCATIONAL REFORM (1983).
140. Milliken I, 418 U.S. at 746–47.
141. Keleher, supra note 138; Bernard, supra note 138.
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suggest that school choice might be the pathway to the American
Dream and, perhaps more importantly, move the nation towards
admirable goals of “inclusion, integration and tolerance.”142 Despite
claims alleging the civil rights roots of the charter school movement
being pushed to the forefront of discussions about education in the
United States, little attention has been paid to the impact of this “new
civil right” on existing rights, at least through a critical lens.143 For
instance, school desegregation and voting rights were part and parcel
of the civil rights movement. Well before Brown I, starting in 1950
with Sweatt and McLaurin, civil rights advocates fought to exorcise the
“separate but equal” doctrine espoused in Plessy and integrate public
schools in the United States when it became clear that segregated
schools were inherently not equal. Similarly, civil rights advocates
have long thought that securing Blacks the right to the electoral
franchise—and simultaneously, the right to political participation—
was prominent.144 The charter school movement has seemingly
forgotten about, or perhaps ignored, the importance of these battles
in the movement’s efforts to stage a new civil rights agenda: quality,
yet segregated education—in other words, separate, but equal
education.145 Although there is no true or uniform national definition
of the term “charter school,” charter schools are generally thought to
be privately operated, yet publicly funded schools that contract with
a state to provide greater academic results in exchange for greater
autonomy.146 Charter school research has been generally confined to
consternations of student achievement147 and student racial
142. Bernard, supra note 138.
143. Scott, supra note 99, at 32–52.
144. See Gabrielle Chin, The Voting Rights Act of 1867: The Constitutionality of
Federal Regulation of Suffrage During Reconstruction, 82 N.C. L. REV. 1581 (2004).
145. Jacobs, supra note 138; Keleher, supra note 138; Matthews, supra note 138;
Bernard, supra note 138; Support Parental Choice, supra note 138; see also Derek Black,
Civil Rights, Charter Schools and Lessons to be Learned, 64 FLA. L. REV. 1723, 1769–72
(2012) (Scholars, however, continue to consider the efficacy of charter schools to
deliver universal educational equity and academic achievement).
146. GREEN & MEAD, supra note 135.
147. Black, supra note 145.
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251
composition and segregation.148 Although scholars are starting to
focus more on charter school board composition and
representation,149 very little, if any, scholarship exists that explores the
legal constructions that require board selection procedures based on
accountability, particularly when contrasting self-selected boards
against directly elected school boards’ accountability in the context of
school closures. If charter schools are given more autonomy than
traditional public schools in exchange for higher accountability,
scholars must determine how accountability, however it is defined, is
best achieved. This investigation is made more paramount by the fact
that charter schools enroll disproportionately poor and minority
student bodies—often times resulting in double segregation.150 Where
poverty and segregation are strongly correlated with diminished
academic achievement, multi-segregated students comprise our
nation’s most vulnerable student population.151 This remainder of this
Article explores the relationship between appointed charter school
boards who operate under the supervision of popularly elected school
boards and appointed charter school boards who operate without the
supervision of popularly elected school boards.
III. Problematizing Public Charter School Management:
Favoring Appointed, Predominantly White Charter
School Boards over Elected, Diverse Boards
At least one study has found that self-selected charter school
boards in New Orleans are predominately and disproportionately
White.152 While some researchers suggest that the changes in the
148. See generally Erica Frankenberg et al., supra note 102.
149. See MELISSA STONE ET AL., HUBERT H. HUMPHREY INST. OF PUB. AFF., CHARTER
SCHOOL GOVERNANCE, FINANCIAL MANAGEMENT, EDUCATIONAL PERFORMANCE AND
SUSTAINABILITY: RESEARCH PILOT STUDY REPORT (2012); see also Nelson, supra note 6; but
see Roch & Pitts, supra note 85 (finding better links between better student outcomes
and less traditional educational approaches, not including board representation).
150. A Civil Rights Mirage, supra note 136.
151. ORFIELD ET AL., supra note 78, at 5–8.
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number of boards and the composition of those new boards impact
the voting rights of Black parents153 and the academic outcomes of
students,154 other scholars question whether charter school board
representation has a significant impact on student achievement.155
Notwithstanding those debates, it is important to address how state
constitutional construction and interpretation affect greater academic
accountability, a stated goal of the charter school movement.156
Charter school advocates assert that New Orleans’s public
charter school boards are seeking diversity, but these boards report
very little emphasis on specifically achieving racial diversity. In a
recent survey of all charter schools operating in the city of New
Orleans in the 2012-2013 school year, only nine boards responded to
requests for information on board composition, reflecting the private
and insular nature of charter schools.157 Only six of the nine boards
answered questions regarding recruitment efforts for racial minority
board members. Only three self-selected charter school boards in
New Orleans reported efforts at recruiting racial minorities onto
charter school boards. Of the three boards reporting minority
recruitment activities, only one explicitly mentioned diversity, and
did so in broad terms. Diversity efforts were the last priority listed
for this board.
Two other boards did not directly mention minority recruitment.
Those boards did, however, have structures in place that would
recruit potential board members from racial minority backgrounds.
154. Nelson & Grace, supra note 85.
155. Id. (finding links between better student outcomes and more traditional
educational approaches); Roch & Pitts, supra note 85, at 282–302 (2012) (finding links
between better student outcomes and less traditional educational approaches, not
including board representation).
156. Danielle Holley-Walker, The Accountability Cycle: The Recovery School District
Act and New Orleans’ Charter Schools, 40 CONN. L. REV. 125, 128 (2007) (projecting that
charter schools would become a significant policy initiative for school districts caught
in the “accountability cycle,” a cycle in which forced choice implemented in response
to school reform policies results in reduced ability to achieve meaningful reformation
of struggling educational systems).
157. See infra Table 1.
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253
One of these two boards is the most representative self-selected
charter school board when compared to the racial compositions of the
student body of the schools the board manages, the student
population of New Orleans’s public schools, and the city’s voting age
population.158 The limited data shows that charter schools were
willing to share that self-selected boards—with policymaking and
enforcement powers in New Orleans public schools—were
predominately White boards that would effectively replace popularly
elected, predominately Black school boards.159 Although the state of
Louisiana made inappropriate requests from the federal government
to relieve the state of some section 5 restrictions following Hurricane
Katrina,160 the state has failed to return power to the popularly elected
and predominately Black Orleans Parish School Board. In fact, it has
done the opposite.
The state has altered regulations to allow the disproportionately
White, self-selected charter school boards to unilaterally decide when
they will return to the Orleans Parish School Board’s supervision.161
An enforceable section 5 would give Black citizens in New Orleans
158. Gaining Choice and Losing Voice, supra note 45, at 237–66 (The charter school
board of Algiers Charter School Association was not statistically different than the
voting age population of the city of New Orleans, the student population or the
composition of the Orleans Parish School Board. The charter school boards of the
International School of Louisiana as well the Morris Jeff Community School were not
statistically different than the student population or the composition of the Orleans
Parish School Board, but was statistically different than the voting age population of
the city of New Orleans. Both the International School of Louisiana and the Morris
Jeff Community School are as disproportionately non-Black as compared to the
student population of New Orleans Public Schools); see also Nelson, supra note 6.
159. Gaining Choice and Losing Voice, supra note 45, at 237–66.
160. See Damian Williams, Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform, 116 YALE L.J. 1116 (2007) (discussing how section 5 was not robust
enough to account for the situation that Hurricane Katrina introduced to the
predominately Black (sixty-seven percent) city of New Orleans).
161. Danielle Dreilinger, Second Recovery Charter Votes to Return to Orleans Parish
System (Jan. 2, 2015, 5:48 PM), http://www.nola.com/education/index.ssf/2015/01/second_
recovery_charter_votes.html (explaining that nearly ten years after Hurricane Katrina
enabled the charter school takeover of New Orleans’s public schools, only two of thirtyfour “recovered” schools have elected to return to the system that is electorally
accountable to the parents of New Orleans’s predominately Black public school students).
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the tools for challenging the indefinite replacement of its elected
school board with self-selected, predominately White boards created
to run parallel, or even above, the predominately Black, elected school
board. This is exactly the scenario that section 5 was designed to
address.
Self-selected charter school boards in Louisiana, and more
particularly New Orleans, are relatively unaccountable to any
immediately affected stakeholders. The state of Louisiana has offered
charter schools more autonomy in exchange for greater
accountability, but very little accountability actually exists, especially
for charter schools operating in the state’s largest predominately
Black city. There are numerous instances of the lack of supervision
and accountability from the state of Louisiana for New Orleans’s
charter schools. For instance, during a federal hearing for P.B. v.
Pastorek, the litigator for the state of Louisiana admitted that it had
failed to effectively monitor New Orleans charter schools’ compliance
with special education requirements.162 Additionally, Louisiana’s
former governor Bobby Jindal’s administration has been charged with
sharing charter school data regarding achievement with only those
researchers who support the charter school movement.163
More immediately, New Orleans charter schools routinely
decline to respond to information requests from the public.
Specifically, they have refused to answer questions regarding board
composition and efforts to recruit board members from diverse racial
backgrounds in this study. Some boards responded that they lacked
either the time or resources to discover the racial composition of their
162. Interview by Steven L. Nelson with Jessica L. Carter, former Outreach
Paralegal, Southern Poverty Law Center, in New Orleans, La. (Mar. 31, 2015).
163. Mercedes Schneider, Good News, Transparency: Louisiana CREDO Data No
Longer Exclusive to Credo (Apr. 5, 2015), https://deutsch29.wordpress.com/ 2015/04/05/
good-news-transparency-louisiana-credo-data-no-longer-exclusive-to-credo/.
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255
boards and make efforts to assure the diversity of those boards.164
Other boards expressed a fear of discussing race.165
The experience with New Orleans charter schools’ lack of
accountability and transparency is not isolated to southeast
Louisiana. There is a growing body of literature addressing the lack
of accountability for charter schools in the United States because of a
general lack of transparency.166 The general lack of transparency, as
well as the lack of supervision surrounding self-selected boards’
expenditure of public funds is troubling from an ethical standpoint.
Moreover, it is important to understand the impact of the charter
school movement on accountability, which is the primary argument
for the expansion of such schools. If charter schools are no more
accountable than traditional public schools, there is no real need for
them. The next Section will examine whether more or less direct
accountability to voters produces more overall accountability by way
of comparing two former section 5 jurisdictions.
164. While time is a precious resource, charter school boards had well over four
months to answer any of three emails regarding this matter. It is at least ironic that a board
that had the time to inform the surveyer of its inability to answer a survey because of time
constraints could respond in detail with the reasons for failing to answer the questions
posed on the survey. There was apparently time to answer the researcher’s email, but not
the questions posed (which could generally be answered with one sentence answers or
producing an already existing document).
165. It is important to note the difficulty often involved in discussing race in the
United States; however, the students enrolled in New Orleans’s public charter
schools—who are ninety percent Black—are unable to ignore the fact that they are
Black.
166. See THE CTR. FOR POPULAR DEMOCRACY & THE ALL. TO RECLAIM OUR SCH., THE
TIP OF THE ICEBERG: CHARTER SCHOOL VULNERABILITIES TO WASTE, FRAUD AND ABUSE
(2015), http://populardemocracy.org/sites/default/files/Charter-Schools-National-Re
port_rev2.pdf; see also THE CTR. FOR POPULAR DEMOCRACY & THE COAL. FOR CMTY. SCH.,
SYSTEM FAILURE: LOUISIANA’S BROKEN CHARTER SCHOOL LAW (2015), http://education
votes.nea.org/wp-content/uploads/2015/05/Charter-Schools-Louisiana-Report_web2.pdf;
see also Susan DeJarnatt, Keep Following the Money: Financial Account-ability and
Governance of Cyber Charter Schools, 45 URB. LAW. 915 (2013).
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IV. State Protections of the Electoral Franchise in Local
School Board Elections: Disparities in Louisiana
and Florida
The entire state of Louisiana and some portions of the state of
Florida were under section 5 coverage before the Supreme Court’s
decision in Shelby County.167 Therefore, any and all electoral changes
in any jurisdiction in the state of Louisiana and all electoral changes
in some jurisdictions in the state of Florida required preclearance from
the federal government before those electoral changes could take
place. In essence, section 5 of the Act protected all Black voters in
Louisiana and some Black voters in Florida from voting power
dilution.
Black voters in the state of Louisiana and the state of Florida,
however, were ostensibly covered under state constitutional
protections requiring the election of local school boards when the
Court issued the Shelby County decision. State constitutional
provisions did not protect Black voters in Louisiana; however, they
did protect Black voters in Florida. The remainder of this Article will
discuss the impact of these state constitutional decisions on the ability
and political will to hold charter schools accountable in each state.
The Louisiana state constitution requires that the state legislature
establish popularly elected school boards in each parish168 of the state
of Louisiana.169 Subsection 9(A) of Article 8 states that “the legislature
shall create parish school boards and provide for the election of their
members.”170 In Triplett et al. v. Board of Elementary and Secondary
Education and Louisiana Department of Education,171 a Louisiana Court
of Appeal addressed whether the Louisiana constitution allowed for
167. ABOUT SECTION 5 OF THE ACT, supra note 16.
168. Parishes are the Louisiana political subdivision equivalent of a county in
other states.
169. LA. CONST. art. VIII, § 9, cl. A.
170. LA. CONST. art. VIII, § 9, cl. A.
171. Triplett v. Bd. of Elementary & Secondary Educ., 21 So. 3d 401 (La. App. Ct.,
2009).
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the state legislature to establish nonelected, parallel school boards
within some, but not all, parishes. Analyzing Article VIII § (9)(A) of
the Louisiana constitution, the Louisiana state appellate court held
that the state may establish alternate, nonelected school boards so
long as the state established the required elected school boards.172 In
particular, the court reasoned that the plaintiffs in the case needed to
identify a specific constitutional provision that bars—or otherwise
limits—the state legislature from enacting the law at issue.173 The
court ruled that the provisions of the state constitution are limitations,
as opposed to grants of permission, on the otherwise plenary powers
granted to the states.174 After Triplett, nonelected school boards were
permitted in Louisiana. Thus, the legislature was free to create school
boards with any variety of selection schemes. Not only are school
boards allowed to be statewide with an appointed board; these
additional school boards are allowed to be self-selected if the state
legislature deemed such selections appropriate.
The state legislature exercised improper power in establishing
the Recovery School District—a statewide school district with an
appointed governing board according to the state court.175 Louisiana,
in ratifying its constitution, made great efforts to protect the right of
local citizens to manage, control and supervise public schools;
Louisiana citizens thought this protection so important that the
protection was placed in the state’s constitution.176 The court’s
decision in Triplett may seem logical when considering the schools
were taken over by the Recovery School District in 2009.177 The
Recovery School District took control of only eight schools in Baton
172. Triplett, 21 So. 3d at 405.
173. Id.
174. Id.
175. Id.
176. Id.
177. The schools prompting the state constitutional challenge in Triplett are located
in East Baton Rouge Parish, the seat of state government. At that time, only a small portion
of East Baton Rouge Parish’s schools would be under the control of the state’s appointed
school board if the state were allowed to take over the soon-to-be affected schools in East
Baton Rouge Parish.
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Rouge at that time.178 Even this minimal encroachment on local
control prompted a legal challenge that was entertained by the state
courts.179 The court’s reasoning that the Louisiana constitution does
not forbid the creation of additional, nonelected school boards loses
its credibility—if not its rationality—in the context of New Orleans
public schools.
In the New Orleans context, the Recovery School District seized
nearly every school and nearly every student under control of the
popularly elected Orleans Parish School Board.180
The
constitutionally mandated and popularly elected Orleans Parish
School Board maintained very little authority over the schools in
Orleans Parish. The court might be perceived as having approved of
the takeover circumstances in New Orleans although it was not tasked
with resolving New Orleans’s scenario. Whatever the case, the court’s
conclusions as applied to New Orleans appear outlandishly absurd.
The state must establish elected parish-level school boards.181 These
school boards can, however, have little or no political power to
operate and manage the parish’s schools or any substantial
proportion of the parish’s schools.182 It appears that the requirement
to have elected school boards is a mere formality and requires only
the illusion of power over education policy or involvement in the
politics of education. Such a conclusion may, in fact, be barred by
rules of statutory and constitutional interpretation in Louisiana.183
The Recovery School District assumed direct supervision of a few
schools in Baton Rouge; the East Baton Rouge Parish School Board, an
elected school board, still exercised considerable power of policy and
179. Id. at 405–06.
180. Holley-Walker, supra note 156, at 128.
182. Id. at 410.
183. Article 9 of the Louisiana Civil Code mandates that statutes be construed in a
manner that is sensical (see Fontenot v. Chevron, 676 So. 2d 557 (1996)). It is at least arguable
that to require elected school boards to govern parish schools, but also allow more
powerful boards that are not elected to govern a greater portion of those same schools is
absurd. In this case, what is the function of a constitutionally required school board that
can exercise little or no power over the jurisdiction’s school?
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politics. This was not the case in New Orleans, where the popularly
elected school board has little to no power over policy and politics.
Moreover, the Recovery School District chartered many of the
takeover schools in New Orleans.184 In chartering the schools, the
Louisiana state legislature and the Recovery School District granted
the self-appointed school boards the right to determine if those
schools would ever return to the Orleans Parish School Board’s
supervision, where the schools might be more accountable to New
Orleans’s voters.185 More than ten years after the state takeover, only
two school boards have agreed to return the popularly elected and
predominately Black local school board.186 Recently, two additional
schools have agreed to “conditionally return” to public
accountability.187
Just as the state courts in Louisiana have confronted legislative
attempts at establishing parallel school boards in school districts, the
state courts of Florida have also confronted these issues. In Duval
County School Board v. State Board of Education,188 a Florida state
appellate court found legislative attempts to install a separate
statewide authorizer of charter schools a violation of the state
constitution.189 According to the constitution of the state of Florida,
district school boards are required to be elected190 and are required to
“operate, control and supervise all free public schools within the
184. Miron, supra note 136, at 244–46.
185. Danielle Dreilinger, Recovery Schools Back to Orleans Parish? House Panel Says
OK, 9-8 (May 12, 2015, 6:41 PM), http://www.nola.com/education/index.ssf/2015/
05/bill_returning_rsd_schools_to.html (discussing the Louisiana state legislatures
debate over returning adequately performing, previously state-taken over schools to
local and elected control).
186. Dreilinger, supra note 161.
187. Danielle Dreilinger, 2 more Recovery Schools to Return to Orleans Parish – Maybe,
(Feb. 11, 2016, 10:26 PM), http://www.nola.com/education/index.ssf/2016/02/new_begin
nings_return_opsb.html (discussing the conditional vote of a New Orleans charter board
to return its eligible schools to control of the popularly elected schools board).
188. 998 So. 2d 641 (Fla. Dist. Ct. App. 2008).
189. Id.
190. FLA. CONST. art. IX, § 4(a).
260
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school district.”191 In 2006, the Florida state legislature passed section
1002.335 of the Florida Statutes.192 This provision created the “Florida
Schools of Excellence Commission,” which operated as an
independent, state-run agency with the authority to approve charter
schools throughout the state.193
Section 1002.335 effectively displaced popularly elected school
boards throughout the state of Florida with an appointed, state-run
body as authorizers and supervisors of charter schools within district
boundaries.194 The state of Florida could and did allow some
popularly elected school boards to remain the exclusive authorizers
and supervisors of charter schools in certain districts.195 Under section
1002.335, this privilege could only be extended if the state of Florida
deemed the decision to be appropriate.196 Multiple popularly elected
school boards, including the Duval County School Board, challenged
the state’s decision to deny the exclusivity of control of all schools,
including charter schools in their respective school districts, on the
grounds that section 1002.335 was facially unconstitutional and
violated Article 9 of the Florida Constitution.
The Florida appellate court hearing the case agreed with the
popularly elected district school boards. The state constitution
explicitly restricted the ability of the state legislature to create school
boards. The court reasoned, “Section 1002.335 provide[d] for the
creation of charter schools throughout Florida. The state permitt[ed]
and encourage[d] the creation of a parallel system of free public
education escaping the operation and control of local elected
boards.”197 Moreover, the new statute specifically bestowed the
powers reserved for popularly elected school boards upon the newly
appointed state-run board.198
191.
192.
193.
194.
195.
196.
197.
198.
FLA. CONST. art. IX, § 4(b).
Duval Cty., 998 So. 2d at 642.
Id.
Duval Cty., 998 So. 2d at 642–44.
Id. at 642.
Id.
Id.
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261
The court did not find the state’s arguments in support of the
legislation persuasive.199 The state argued that section 1002.335 would
further the constitutionally mandated uniform system of schools and
the equity interest of charter schools, while affecting a marginal
portion of the total school market share in Florida’s public schools.200
The court also did not find persuasive the argument that the Florida
Department of Education could grant permission for school districts
to remain the sole operator of all schools in the district.201 In
particular, the court expressed concern that the same statute that
allowed the state to grant school districts permission to remain the
exclusive operators, controllers and supervisors of all public schools
simultaneously granted the authority to strip such districts’ powers.202
The effect of the statute was to disallow constitutionally required,
popularly elected school boards to have exclusive authority over all
schools in their respective districts; instead, popularly elected school
boards could only serve as agents for the state of Florida in achieving
the state’s agenda.203 If school boards did not comply with the state’s
wishes, the state could presumably force acquiescence by threatening
to remove the school board’s authority to supervise the district’s
charter schools.
A. Comparing and Contrasting Minority Voter Protection in
School Board Elections in Louisiana and Florida
The states of Louisiana and Florida both have constitutional
requirements to establish popularly elected county or parish-level
school boards. Different constitutional interpretations have led to
varying results in locals’ abilities to advance political and policy
agendas pertaining to education. The Louisiana state constitution
does not require that all boards be elected. Certainly, the state must
establish the constitutionally mandated school boards, but the state
199.
200.
201.
202.
203.
Id. at 643–44.
Id. at 644.
Id.
Id.
262
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[Vol. XIII
may also choose to establish alternative, parallel-running school
boards.204 Florida’s constitution requires that all school boards be
elected and that those elected school boards be the only governing
body responsible for the education of each district’s schools and
students; thus, the state may not establish alternate school boards that
are equivalent or superior in power to the elected, countywide school
board.205
Louisiana and Florida—aside from merely sharing
constitutional requirements to elect school boards—are particularly
unique among former section 5-covered jurisdictions. Only Louisiana
and Florida, of all states with any section 5-covered jurisdictions, have
constitutionally mandated voting protections pertaining to school
board elections.
The Supreme Court’s holding in Shelby County, while not
purportedly a case about primary and secondary education, has
substantial implications for school board selection processes. In
particular, section 5-covered jurisdictions would have been required
to seek preclearance from the federal government to install school
board selection processes aside from elections in Louisiana and
Florida. The Florida state courts have protected the voting rights of
all, but particularly minority, voters in educational policy and politics
by mandating that elected county school boards remain the only
school boards in the state of Florida. Although the protection of
minority voters may not have been the intent of the Florida
constitution, the effect of the state’s constitution is to maintain the
ability of minority voters to control or influence education politics and
policy in local school districts. Thus, in Florida, charter school boards,
which in some areas have been found to be disproportionately White,
are still accountable to elected county school boards. So long as
minority voters are allowed to freely participate in school board
elections, they will have some impact on education policy and politics.
This is not the case in Louisiana. Louisiana requires elected
parish-wide school boards, but the state may establish parallel boards
with substantially more power than the elected parish-wide school
205. Duval Cty., 998 So. 2d 641.
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263
board.
If the state legislature would prefer to not have a
predominately Black, elected school board, then it can establish an
alternative school board that is either appointed or self-selected. If the
Supreme Court had not thwarted the enforcement of section 5 by way
of finding section 4 of the Act unconstitutional, the Louisiana state
court’s decision might have been for naught. Though Louisiana
would maintain a state right to establish multiple school boards, that
right would be restricted by the preemptive powers of section 5. The
federal government would have required the state to prove how it
would protect minority political participation before allowing the
state to unilaterally install an appointed or self-selected,
predominately White school board in lieu of an elected,
predominately Black school board.
While many scholars may discuss the implications of Shelby
County on national and statewide elections, municipal and countylevel elections, arguably, more directly impact the lives of most voters.
School boards, in particular, are perhaps the institution in the United
States most similar to direct democracy; thus, school board elections
are of great import to the analysis of the potential impacts of the
Court’s decision in Shelby County. While investigating the impact on
the election of national and statewide office has great merit,
examining the potential impacts of the Court’s most recent case for
the protection of minority voting rights in the most local of elections
is imperative for multiple reasons.
First, the method by which national and state officials are
appointed is generally well-prescribed. The circumstances when state
or national officials are to be appointed are also generally limited to
specific officials who are generally not the ultimate or sole originators
and implementers of policies. This fact pattern might remain in the
case of appointed school boards, but charter school boards have even
less electoral accountability than appointed school boards. Charter
school boards are practically self-selected, which might restrict the
ability of charter school boards to remain accountable in a manner that
satisfies the charter school board’s promise of more accountability in
exchange for more autonomy. It is important, then, to assess the
impact of different structures of accountability for self-selected
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[Vol. XIII
charter school boards. The remainder of this Article will discuss
potential issues created by the Court’s decision in Shelby County and
the state court decisions in Louisiana and Florida.
B. Collapsing a House of Cards: Issues at the Intersection of
Shelby County, Triplett and Duval County
The small differences in constitutional language and
interpretations between Louisiana and Florida have substantial
differences in how accountable charter schools may or may not be to
constituents in each state. These differences are not merely semantic
in nature. All charter school boards—although appointed or selfselected—in the state of Florida are granted autonomy. However,
within that autonomy, these boards are still accountable—though to
what extent, is debatable—to the popularly elected county school
boards of the state of Florida. On the contrary, only some appointed
or self-selected charter school boards in Louisiana are held
accountable to popularly elected parish school boards; this occurs if,
and only if, those self-selected charter school boards seek the
accountability of the popularly elected parish school boards in
Louisiana since charter school boards may be granted operational
permission through the appointed statewide school district if they do
not want the popularly elected school board to oversee the operations
of the charter school.206
The aforementioned differences in constitutional construction
and interpretation are not just technical. On its face, the fact that
Florida’s charter schools are required to operate within the confines
206. The irony in the context of New Orleans is that the charter schools under
the control of the popularly elected Orleans Parish Public Schools are those least likely
to be academically unsatisfactory since the schools left under the control of the elected
school board are the schools that 1) were academically exceptional prior to the state
takeover, 2) those schools that have recovered to academically acceptable levels and
have voted amongst their self-appointed board to leave the Recovery School District
and return to the Orleans Parish School Board, or 3) have been recently approved by
the popularly elected Orleans Parish School Board, which only recently regained the
right to charter schools in the city of New Orleans.
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265
of an existing school district framework seems to afford more
accountability to Florida’s electors than Louisiana’s charter schools,
which may select to—but are not required to—operate within an
existing school district’s framework. To some extent, it could be
argued that citizens in Florida may hold charter school boards to
greater accountability since they may politically pressure elected
school boards to open, close, or alter existing charter schools. In
contrast, in Louisiana, parents may only have this option if charter
schools opt to give parents that option; such a result flies in the face
of concepts of accountability. Parents in Louisiana may elect to vote
with their feet, but given the accountability structure—or lack thereof
in Louisiana—that parent might well find him or herself in the same
or worse position even after exercising their right to vote.
Take the following reasoning as evidence supporting this
hypothesis. The state of Florida closes a higher percentage of charter
schools than Louisiana. Although state accountability structures vary
greatly, it cannot be dismissed that Florida’s charter schools are
typically higher performing than those in Louisiana (as defined by
each respective state). In support of this argument is the fact that each
state establishes the criteria by which a school could be considered
“low performing” or “failing.” The state of Florida has closed roughly
thirty percent of its charter schools,207 while Louisiana has closed only
about nineteen percent of its charter schools.208 If charter schools gain
autonomy in exchange for greater accountability, then states should
be closing low-performing schools or academically unacceptable
schools.209 Florida appears to close a greater proportion of its charter
207. Jacob Carpenter, Part 1 – Florida’s Failed Charter Schools: Cracks in the System,
NAPLE DAILY NEWS (Sept. 13, 2014, 4:31 PM), http://www.naplesnews.com/news/
education/part-1---floridas-failed-charter-schools-cracks-in-the-system-ep-59572009
1-340772961.html.
208. CTR. FOR RES. ON EDUC. OUTCOMES, CHARTER SCHOOL PERFORMANCE IN LOUISIANA 11 (2013), https://credo.stanford.edu/documents/la_report2013_7_26_2013_final.
pdf (on file with author).
209. For purposes of this Article, low-performing schools are considered schools
with the grade of C or below. Academically unacceptable schools are schools with
the grade of D or F.
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[Vol. XIII
schools than does Louisiana210 despite the fact that Louisiana (eightytwo percent)211 has a greater portion of low-performing charter
schools when compared to Florida (thirty-eight percent).212
Likewise, Louisiana (forty-two percent)213 has a greater portion of
its charter schools that are academically unacceptable than does
Florida (seventeen percent).214 It follows, then, that if Louisiana has a
larger number of charter schools at risk of failing academically, it
should be closing more charter schools than Florida, which has a far
smaller proportion of struggling charter schools. Though the
comparisons of proportions do little in the way of suggesting
causation, the marked differences (and correlation) in the ultimate
accountability measurement—school closure—may warrant further
investigation into the effects of district supervision on charter school
accountability.215
V. Conclusions and Implications for the Creation and
Implementation of Charter School Legislation
Concerning Governance and its Relation to
Accountability
The decisions of many parties, as well as the interaction of the
consequences of those decisions, dictate policies. In the United States,
210. Louisiana school performance data is reported as of the 2013-2014 school
year while Louisiana school closure data is reported from the 2010-2011 school year.
Florida school performance data is reported as of the 2012-2013 school year, while
Florida school closure data is reported as of the 2013-2014 school year. Thus,
accountability comparisons may be slightly skewed. Given the inability to access
public data regarding school closures, this is the best available consideration.
211. LA. DEP’T EDUC., RAISING THE BAR: LOUISIANA TYPE 2, 4, AND 5 CHARTER
SCHOOLS 2014-2015 ANNUAL REPORT 13–19 (2014), https://www.louisianabelieves.
com/docs/default-source/school-choice/2014-2015-charter-annual-report.pdf?sfvrsn=2.
212. FLA. DEP’T EDUC., FLORIDA’S CHARTER SCHOOLS: FACT SHEETS (2014), http://
www.fldoe.org/core/fileparse.php/7696/urlt/fast_facts_charter _schools.pdf.
213. LA. DEP’T EDUC., supra note 211.
214. FLA. DEP’T EDUC., supra note 212.
215. See infra Table 2 (illustrating the statistical test used to determine correction
between state school board election requirements and charter school closures).
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267
schools might have the largest cross-section of stakeholders, for they
are one of few institutions in which nearly every citizen is required to
participate in some manner. There are very few exceptions to the rule
that every citizen will participate in the educational system; as such,
stakes are generally high in debates about education policy, even if
voting in school board elections is generally low.216 Schools and
schools board elections are local affairs, and if all politics are local,
schools and school boards are perhaps the most local. School board
elections are relatively inexpensive217 and even candidates with little
political experience or an unrecognizable name can rise to power with
ease in the right context. These scenarios may lead to one’s cousin,
neighbor, or even a child’s soccer coach becoming a local political
figure via the school board.
On the other side of the school boards’ refreshingly local
influence is the increasingly demanding guidance of the federal
government. Many scholars have noted that the federal government
has tied incentives to accountability measures and “objective” results;
this same federal intervention pressures states to adopt school choice
policies.218 Moreover, the rise in these accountability measures and
the concomitant rise of reliance on objective results has resulted in a
decrease in public schools that are governed by traditional, local
school boards.219 It is important, therefore, to assure that all schools
and individuals who hold representative positions are actually being
216. See generally FREDERICK HESS, NAT’L SCH. BD. ASS’N, SCHOOL BOARDS AT THE
DAWN OF THE 21ST CENTURY: CONDITIONS AND CHALLENGES OF DISTRICT GOVERNANCE
33 (2002), http://files.eric.ed.gov/fulltext/ED469432.pdf.
217. Id. at 35.
218. See generally Joseph P. Viteritti, The Federal Role in School Reform: Obama’s
“Race to the Top,” 87 NOTRE DAME L. REV. 2087 (2012); Erica Frankenberg & Genevieve
Siegel-Hawley, Choosing Diversity: School Choice and Racial Integration in the Age of
Obama, 6 STAN. J. C.R. & C.L. 219, 249 (2010); see generally David Hursh, Assessing No
Child Left Behind and the Rise of Neoliberal Educaiton Policies, 44 AM. EDUC. RES. J. (2007);
see also Nick Lewin, The No Child Left Behind Act of 2001: The Truimph of School Choice
over Racial Desegregation, GEO. J. ON POVERTY L. & POL’Y 95 (2005); Roslyn A. Mickelson,
When Opting Out is Not a Choice: Implications for NCLB’s Transfer Option from Charlotte,
North Carolina, 38 EQUITY & EXCELLENCE IN EDUC. (2005).
219. See Holley-Walker, supra note 156.
268
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[Vol. XIII
held accountable. Analyzing the differences between Louisiana,
where relatively fewer charter schools are closed and more charter
schools perform poorly, and Florida, where the situation is the
opposite, provides some insight into developing legislation that
authorizes charter schools in a manner that might increase
accountability. In sum, political pressure appears to be related to
increased accountability.
Lawyers are wordsmiths. Judges might be the greatest of the
wordsmiths. The disparate opinions in Louisiana and Florida are to
some extent semantic in nature. The state court wordsmiths in each
state treated the wording of constitutional provisions very differently.
In Florida, the language of the state constitution made clear that
countywide school boards should be elected and that schools should
be the sole province of county school boards. The same did not hold
true in Louisiana where there was no restrictive language barring the
creation of parallel school boards to run parallel to the constitutionally
mandated, elected school board.
As a result of the court’s analysis in Louisiana, Black voters have
little, if any, power over education policy and politics in New Orleans.
Those same voters, however, exercised great power in the areas of
policy and politics prior to Hurricane Katrina. The inability of Black
voters to control education policy and politics in proportion to their
political presence is not the only issue with the Louisiana court’s
decision in Triplett. Louisiana’s inability to hold charter schools
accountable is a result of the state’s lack of reliable and inexpensive
methods of accountability. In a cash-strapped state like Louisiana,220
having citizens patrol some issues may be more reliable and
inexpensive since people are more likely to respond politically when
an issue affects them personally, and especially where the state is
required to run school board elections.
220. Jeff Guo, Louisiana So Poor That Bobby Jindal’s Budget Won’t Fund Presidential
Primaries in 2016, WASH. POST (Mar. 23, 2015), https://www.washing tonpost.com/blogs/
govbeat/wp/2015/03/19/louisiana-is-so-poor-that-it-cant-afford-to-hold-presidentialprimaries-in-2016/ (last visited Oct. 11, 2015) (revealing that Louisiana’s $1.6 billion
budget gap was so large that the state could not afford to host some elections).
4/20/2016 8:04 PM
269
State legislatures, who have the power to create and amend
legislation authorizing the operation of charter schools, should make
concerted efforts to develop strategies that hold charter schools to
account by way of political pressure from the general public while
granting charter schools the autonomy to be innovative and flexible.
Charter schools in Florida are directly accountable to the popularly
elected county school board. If county voters are unhappy with the
progress or behavior of a charter school, the county school board must
act to correct the charter school’s misfeasance, malfeasance, or
nonfeasance. If the county school board does not act according to the
wishes of the county electors, the electors can unseat the obstinate
county board member(s) during the next school board election. This
could be, but is often not, the case in Louisiana.
If parents in New Orleans are unhappy with the actions or
inactions of a charter school, the parents have very little recourse
against the charter school. Of course, parents can always remove their
children from the charter schools in New Orleans; this might not,
however, be a sufficient remedy since nearly every school in New
Orleans is a charter school. It might be advantageous, particularly in
encouraging accountability, if all charter schools were directly
accountable to popularly elected school boards; local electors would
then have the power to most directly address the issues associated
with these boards. The fact that public accountability might decrease
the charter schools’ ability to satisfy the demands of accountability
structures is easily rebuttable with the fact that a lack of electoral
accountability in Louisiana has resulted in relatively few charter
schools—low or high performing—closing down as opposed to the
fact that greater electoral accountability in Florida has resulted in
relatively more charter schools being closed—despite the fact that
charter schools in Florida are higher performing than those in
Louisiana.
Finally, Congress must agree upon legislation to reinvigorate
section 4 of the Act. This will reestablish section 5 as a viable,
enforceable protection of minority voting interests and perhaps
enhance the ability of Black voters to pursue educational equality
through influencing education policy and the politics of education.
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[Vol. XIII
Many voting rights scholars and voting rights attorneys are
discussing the need for section 5 to combat unannounced shifts in
polling places, voter identification requirements, the reduction of
early voting places and times, and other scandalous attempts to
prevent minority voters from casting ballots. All of these issues
deserve the attention that advocates give to them. It is also important
to document and discuss that some states, such as Louisiana, are
converting previously elected boards into appointed or self-selected
positions; the newly appointed or self-selected positions, which are
typically predominately White are replacing predominately Black
positions.
Congress specifically envisioned that section 5 would prevent
states from limiting minority involvement in political activity via rule
changes as minorities ascended to political power.221
Some
conservative politicians and political commentators suggest that the
Act, and particularly section 5, have accomplished this goal.
Louisiana’s changing rules—exchanging Black policymakers for
White policymakers—indicates that we still have work to do in
protecting minorities’ right to political involvement. Congress has
work to do. Some states, including Louisiana, can move to
immediately protect minority voting rights— in terms of school board
representation—by requiring that all new and alternative school
boards answer directly to the politically elected boards before them.
221. S. Rep. No. 97-417, at 6 (1982).
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271
Table 1. Summary of Charter School Board President Responses
to Requests for Information on Efforts to Recruit Black
Board Members
Charter School Board
International School of
Louisiana
Lagniappe Academy of
New Orleans
The Future Is Now
Schools: New Orleans
Morris Jeff Community
School
Algiers Charter Schools
Association
Effort at Recruiting Black Board
Members
Recruitment efforts are in
conjunction with other forms of
diversity recruitment, which might
create conflict. In a numbered list,
diversity is the last priority listed.
No specific recruitment efforts
mentioned. Board nominations are
solicited from parents, board
members and community partners.
mentioned, but the board seeks to
include alumni (who, in recent times,
are disproportionately Black).
Members are selected on the
recommendation of board members,
community and political leaders.
mentioned. Referrals to the board
are made specifically by trustees and
generally by “stakeholders.”
The board uses a parental proxy to
assure parent participation. The
board is aggressive in recruiting
potential board members, using
various methods of publically
available advertisements as well as
recommendations from key
stakeholders. Also, long-term
residency in the predominately Black
Algiers area of New Orleans is a
272
4/20/2016 8:04 PM
FirstLine Schools, Inc.
Charter Schools
New Orleans College Prep
Educators for Quality
Alternatives
ReNew Charter Schools
[Vol. XIII
basic requirement for consideration
for board membership.
mentioned. A nominating committee
refers potential board members to
the general board after nominations
and interviews.
The board president did not answer
questions regarding board selection
process.
process.
process.
Table 2. Fisher Exact Test of Independence for Ratio of Charters
Closed and Remaining Open in Louisiana and Florida222
Charter School
Status
Louisiana
Marginal
Rows
Florida
223
Closed
21
269
290
Open
Marginal
Columns
91
631
722
112
900
1012 (Total)
222. P-value = 0.0145 (There is evidence that supports the claim that the ratio of
school closures (rows) is associated with individual states (columns)).
223. Carpenter, supra note 207.
5 PARKS&HERNANDEZ_MACRO_FINAL_SK.DOCX (DO NOT DELETE)
4/27/2016 4:03 PM
Fortitude in the Face of Adversity:
Delta Sigma Theta’s History of Racial
Uplift
GREGORY S. PARKS* AND MARCIA HERNANDEZ**
The uninvolved, disengaged citizen has no place in America.1
–Barbara Jordan, Texas State Senator
Political power may not be all that Black women are after.
Historically, it has been the humanity, compassion and courage of
Black women that has set them apart, gotten them through their
most difficult times and made a difference in America. 2
–Melba Tolliver, author
Introduction
Black Greek-Letter Organization (BGLO) scholarship presents a
long-standing involvement of fraternity and sorority engagement in
civil rights, philanthropy and community service.3
Although
* Assistant Professor of Law, Wake Forest University School of Law; National
Chair, Commission on Racial Justice for Alpha Phi Alpha Fraternity, Incorporated.
The authors thank Alena Baker and Tenika Neely for their diligent research
assistance.
** Associate Dean, College of the Pacific; Associate Professor of Sociology,
University of the Pacific.
1. Barbara Jordan, In Defense of Rights, DELTA, 31st National Convention, 1971,
at 47.
2. Melba Tolliver, Black Women Politics; Invisible but Powerful, DELTA, 1985, at 13.
3. PAULA GIDDINGS, IN SEARCH OF SISTERHOOD (1988); Jessica Harris, Women of
[273]
274
4/27/2016 4:03 PM
[Vol. XIII
scholars have praised Black Greek-Letter Organizations for their
commitment to community empowerment, literacy advancement,
Black women’s involvement in politics, and racial uplift, some
scholarship suggests a critical examination of BGLOs is required.
Arguing that BGLOs tend to focus on traditional forms of advocacy,
there is a risk of becoming irrelevant in the contemporary landscape
of social justice movements and African-American social and
political organizations.4
In this Article, we examine the historical organizational efforts
by one BGLO, Delta Sigma Theta, to influence local communities
and national policy for social justice. Delta Sigma Theta boasts one
of the largest memberships among BGLO sororities.
The
organization has a long, storied history of civic engagement and
political activism. By examining relevant scholarship and historical
records, such as sorority newsletters, we assess how Delta Sigma
Theta members have employed a variety of collective action
strategies at both the local level within individual chapters, and at
the national level, to be a force for change in society. We conclude
with a discussion of the importance of linking past accomplishments
to current civic engagement strategies and social justice movements
as sorority members address the needs of their local communities
and participate in national movements in the 21st century.
Delta Sigma Theta was founded on January 13, 1913 by twentytwo young women on the campus of Howard University in
Washington, D.C.5 When these women arrived on campus, they
Vision, Catalysts for Change: The Founders of Delta Sigma Theta, in BLACK GREEK-LETTER
ORGANIZATIONS IN THE TWENTY-FIRST CENTURY: OUR FIGHT HAS JUST BEGUN 75
(Gregory S. Parks ed., 2008); Marybeth Gasman, Passive Activism, Empirical Studies of
Black Greek-Letter Organizations, in BLACK GREEK-LETTER ORGANIZATIONS 2.0: NEW
DIRECTIONS IN THE STUDY OF AFRICAN AMERICAN FRATERNITIES AND SORORITIES 28 (G.
S. Parks & M. W. Hughley eds., 2011); see also Marybeth Gasman, Patricia Louison,
& Mark Barnes, Giving and Getting: Philanthropic Activity Among Black Greek-Letter
Organizations, in BLACK GREEK-LETTER ORGANIZATIONS IN THE 21ST CENTURY: OUR
FIGHT HAS JUST BEGUN (Gregory S. Parks ed. 2008).
4. G.S. PARKS, R. RAY, & S.M. PATTERSON, COMPLEX CIVIL RIGHTS ORGANIZATIONS
(2014); JESSICA HARRIS & VERNON C. MITCHELL, JR., A NARRATIVE CRITIQUE OF BLACK
GREEK-LETTER ORGANIZATIONS AND SOCIAL ACTION (2008).
5. Harris, supra note 3, at 75–91; see Appendix, for the biography of the Founders.
Summer 2016]
FORTITUDE IN THE FACE OF ADVERSITY
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were bright-eyed, eager, and seeking to bring change upon the
American landscape that still embraced overt racism and sexism as
acceptable aspects of everyday life. These young women joined
Alpha Kappa Alpha, an African-American sorority on campus, in an
effort to pursue their goals for change. However, the goals and
activities supported by Alpha Kappa Alpha were not nearly
ambitious enough for those desiring immediate action for social
change. The group of twenty-two women broke ties with Alpha
Kappa Alpha and founded Delta Sigma Theta to offer an alternative
organization for like-minded college students at Howard
University.6
Since its founding, Delta Sigma Theta has become one of the
largest African-American women organizations in the world. Its
growth is due in part to the reputation of its civically engaged
membership, which has contributed significantly to race and gender
rights. Most BGLOs promote passive activism for their members,7
but Delta Sigma Theta seems to be an exception; its members have
engaged in public protests and acts of civil disobedience. While
BGLOs share similar values and goals for advancing civil rights, “the
women of Delta Sigma Theta sometimes put themselves at risk and
have engaged in the most direct forms of activism of any of the
BLGOs.”8 In fact, Delta Sigma Theta’s identity as an organization
harkens back to women, many of whom would later become Delta
Sigma Theta members, like Coralie Franklin Cook, who served as
pillars of Black women’s involvement in the suffrage movement.9
6. GIDDINGS, supra note 3, at 49.
7. See Gasman, Passive Activism, supra note 3, at 27-41.
8. Id. at 40.
9. Coralie Franklin Cook was a professor at Howard University. She taught English,
headed the Department of Oratory, and founded the School of Expression at the
Washington Conservatory of Music. In 1880, Cook graduated Storer College and became a
teacher in 1882. Her husband George Cook was also a professor and dean at Howard
University. Cook was heavily involved in the Civil Rights Movement in Washington, D.C.
She belonged to the DC Colored Women’s League, served on the DC Board of Education,
and helped to found the National Association of Colored Women. She is an honorary
member of Delta Sigma Theta.
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Contained in the seven organizational goals of the sorority are
guiding principles for every Delta Sigma Theta chapter: (1) To
develop an appreciation of Delta Sigma Theta’s potential for
influence in the community and nation; (2) To increase knowledge of
current national and local issues so that every Delta Sigma Theta will
be an informed and effective citizen and voter; (3) To encourage
active participation in political activity; (4) To influence enactment of
legislation, national and local, of particular interest to Negroes and
women; (5) To maintain vigilance over action or inaction by local
judicial and administrative agencies and officials; (6) To cultivate a
person-to-person relationship with the community power structure;
and (7) To join volunteer leadership in civic and other Social Action
organizations, including interracial groups.10 To this end, Delta
Sigma Theta members have worked tediously to accomplish all of
these goals since the sorority’s inception. Although the members’
contributions have been diverse, most notable among them are
advances to civil rights, public policy, philanthropy, and community
service; these four categories will be discussed in depth in the
foregoing pages.
We examine relevant scholarship and archival data to highlight
Delta Sigma Theta’s achievements. Specifically, there are many
advantages to conducting a document analysis of sorority
newsletters to gain insight on how chapters and individual members
have advanced the sorority’s mission for civic engagement over the
years.11 In this study, we drew upon sources that would examine the
10. Gasman, Passive Activism, supra note 3, at 44. See also Effective Social Action:
To Be Seen and Heard, DELTA SIGMA THETA (2009), http://www.deltasigmatheta.org/
downloads/conf09docs/pdf/Effective_Social_Action_Regional_Conference_2009.pdf
(last visited April 26, 2016).
11. Document analysis is an ideal research method for “studies designed within an
interpretive paradigm . . . [and when] it may be simply [one of] the only sources, as in
historical research and cross-cultural research.” Glenn A. Bowen, Document Analysis as a
Qualitative Research Method, 9 QUALITATIVE RES. J. 27, 29 (2009). Documents such as an
organization’s newsletters allow researchers to “[b]ear witness to past events and
provide background information as well as historical insight . . . [as] a means of tracking
change and development. Moreover, documents are ‘unobtrusive and non-reactive’ and
are exact in the inclusion of names, references and details of events.” Bowen, supra, at
29–31.
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range of Delta Sigma Theta’s community involvement and social
justice work.12
Newsletters provide detailed accounts of the
activities and strategies employed by both Delta Sigma Theta’s
alumnae and undergraduate membership to address social problems
and concerns.13 Black sororities were conceived as safe spaces on
college campuses for Black women to share a sisterhood, support
intellectual achievements, and develop leadership skills.
Over time, as the membership grew and alumnae chapters
formed and expanded, the organizations transformed into
multifaceted, intergenerational institutions. In short, Delta Sigma
Theta, like all BGLOs, is a complex civil rights organization.14
Organizational complexity involves the identity, goals, strategy, and
structure of a group.15 This Article highlights how Delta Sigma
Theta members have worked for generations to build and expand
upon a strong foundation of sisterhood and service to achieve their
goals. Although the organization’s achievements are vast, it is still
adapting to social and political changes and “must come to grips
with its own complexity in order to remain sustainable and
productive, especially in the realm of civic activism and shaping
public policy around issues of race.”16 Understanding the multiple
dimensions of BGLOs provides a way to examine Delta Sigma
Theta’s goals, mission, and actions over the past 100 years with a
deep appreciation for the founders’ challenges and the current
members’ opportunities.
12. Bowen, supra note 11, at 31.
13. Id. at 27.
14. Gregory S. Parks, Rashawn Ray & Shawna M. Patterson, Symposium, Complex
Civil Rights Organizations: Alpha Kappa Alpha Sorority, An Exemplar, ALABAMA C.R.-C.L.L
REV. (2014), http://gregoryparks.net/wp-content/uploads/2016/02/Alpha-Kappa-Alphaand-Civil-Rights-1.pdf (symposium on The Ghosts of 1964: Race and Gender Inequity
Fifty Years Later).
15. Id.
16. Id. at 30.
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[Vol. XIII
I. 1910s–1930s: The Early Years
Since its inception, Delta Sigma Theta has maintained a constant
focus on using its position in society to promote higher standards in
human treatment and to improve race and gender relations.17 Two
months after the formation of Delta Sigma Theta, the new members
participated in what would be their first public effort for civil rights.
On March 3, 1913, Osceola Adams led the new Delta Sigma Theta
members—along with 5,000 to 10,000 other women—down
Pennsylvania Avenue in support of women’s voting rights.18 Over
the next decade and a half, Delta Sigma Theta quietly continued its
involvement in civil rights.
It wished to remain a viable
organization, but its outward support of such controversial topics
would potentially disrupt its ability to operate.19 Delta Sigma Theta
members found ways of being actively involved with and
supportive of civil rights organizations by strategically engaging in
both indirect and direct action.
Delta Sigma Theta also promoted its public policy goals by
extending honorary membership offers to prominent AfricanAmerican leaders. Honorary members such as Mary Church Terrell
and Coralie Franklin Cook—two women active in the Washington
Women’s Colored League—were some of the first honorary
members. Terrell eventually became President of the National
Association of Colored Women’s Clubs, Chairman of the
Coordinating Committee for the Enforcement of the District of
Columbia Anti-Discrimination Laws, and the first African-American
woman elected to the United States Congress of Women.20 Terrell
remained a strong voice for Delta Sigma Theta throughout her life
by giving speeches on behalf of the sorority and lending her name to
most of Delta Sigma Theta’s endeavors. Nannie H. Burroughs,
another honorary member, was the founder of the National Training
17. MARY E. VROMAN, SHAPED TO
FIFTY YEARS 9 (2007).
19. Id. at 112.
20. Id. at 64.
ITS
PURPOSE: DELTA SIGMA THETA—THE FIRST
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School for Girls in Washington, D.C.21 Hallie Quinn Brown, a
renowned professor and dean at Allen University in South Carolina
and ultimately Wilberforce University in Ohio, became another
honorary member.22 Brown was well known for her traveling
presentations and her leadership in a wide variety of organizations
in Ohio.23 One of the most important honorary members was Mary
McLeod Bethune, founder of Bethune-Cookman College in Florida
and founder of the National Council for Negro Women, a cabinet
position under Franklin Delano Roosevelt.24 Bethune also proved to
be instrumental in promoting the goals and policies of Delta Sigma
Theta throughout her lifetime as an honorary member.25
More broadly, public policy has served as an important interest
to Delta Sigma Theta since its inception. The cornerstone of Delta
22. Id. at 70.
23. Id.
24. Id. at 96. Mary McLeod Bethune was an extraordinary educator, civil rights
leader, and government official who founded the National Council of Negro
Woman and Bethune-Cookman College. Bethune was born on July 10, 1875, in
Maysville, South Carolina one out of seventeen children of former slaves. Bethune
was the only child in her family to go to school, when a missionary opened a school
nearby for African-American children. Doing so well in school Bethune got offered
a scholarship to Scotia Seminary School in Concord, North Carolina earning her
teaching degree in 1893. She then headed back down south where she taught nearly
for a decade. Feeling that education was a very important pressing issue, Bethune
opened the Daytona Normal and Industrial Institute in 1904, which then later
became the Bethune-Cookman College. Bethune served as the school’s president,
and remained its leader even after the integration of men in the college and stayed
with the college until 1942.
While serving as the president of her college she also pushed for activist rights,
founding the National Council Negro Women in 1935. She worked under President
Roosevelt as a Special Advisor for Minority Affairs from 1935 to 1945. She was the
first African-American woman to work alongside four presidents for minority
rights. In 1973, Bethune was inducted into the National Women’s Hall of Fame.
While in 1974 she became the first Black leader and the first woman to have a
monument, the Bethune Memorial statue, erected on the public park land in
Washington, D.C. Bethune married Albert McLeod Bethune in 1898, having one son
named Albert, before ending their marriage in 1907. Bethune died on May 18, 1955
in her retired home in Daytona, Florida.
25. Id. at 64.
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Sigma Theta’s Five-Point Program focused on education,
employment, housing, and race and intercultural relations. These
initiatives continue to drive the sorority’s community service and
policy work. The organization’s involvement in the political sphere
has taken a wide variety of forms from lobbying efforts, voter
registration, and supporting members running for public office, to
sending members as representative delegates to conferences,
political events, and international excursions.26
In December 1913, the sorority sent M. Frances Gunner to the
Intercollegiate Socialist Society conference in New York. Though
Gunner was the only African-American student present at the
conference, her voice was heard during the three-day conference.
Her presence established a strong foundation in public policy that
Delta Sigma Theta built upon for years to come.27 Perhaps Delta
Sigma Theta’s most significant endeavor during this time of activity
was its leading role in urging the United States to remove its forces
from Haiti. Delta Sigma Theta lobbied very hard for President
Wilson to leave Haiti. When Wilson’s administration decided to use
a commission to determine the best course, Delta Sigma Theta
worked to get two members on that commission, Mary Church
Terrell and Alpha Phi Alpha member Rayford Logan. Neither were
appointed, but Delta Sigma Theta’s work was not in vain; the
president of the Tuskegee Institute, Dr. Robert Russa Moton, served
as an advisor in the process that ultimately resulted in U.S.
withdrawal from Haiti in 1934.28
27. Id. at 63.
28. Id. at 131. Mary Church Terrell was a writer, educator, and activist who cofounded the National Association of Colored Women and served at the
organization’s first president. She was born on September 23, 1863, in Memphis,
Tennessee. Her parents Robert Reed Church and Louisa Ayers, were both former
slaves who used their freedom to become small business owners, and made
themselves vital members of Memphis’s growing Black population. After her
parents divorced, she left home early to attend the elementary school at the Antioch
College Laboratory in Ohio, where she also attended Oberlin College. Four years
later she completed her master’s degree in education.
After college Terrell accepted a teaching job at Wilberforce College in Ohio and
then moved to D.C. to work at Dunbar High School. While in Washington, D.C. she
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In 1925, the sorority established the Alpha Beta Chapter at Fisk
University. Later, when there were numerous African-American
student uprisings focused on equal rights, Delta Sigma Theta’s
established chapter on campus lent its support to this cause.29
Toward the end of the 1920s, Delta Sigma Theta issued its first
public statement regarding race relations stating: “We feel deeply
the need for protest against the growing prejudice of all kinds in the
United States of America. The time has come when we feel called
upon to give voice for the first time to the strong feelings that have
possessed us.”30 Since 1930, the National Pan-Hellenic Council
(NPHC) has worked to promote projects that better the lives of Black
people.31
Throughout this time, Delta Sigma Theta members maintained
strong connections with the NPHC that allowed for a greater impact
in the fight for social justice due to the collective efforts of BGLO’s
working towards common goals.32 In the early 1930s, civil rights
groups challenged the civil codes, which governed most of everyday
life for African Americans. Delta Sigma Theta joined the fray as an
important ally in the fight for social justice. As the review date for
met her future husband, Robert Heberton Terrell, a talented attorney who would
eventually become Washington D.C.’s first Black municipal judge. They married in
1891. While in D.C., Terrell was politically involved in woman’s rights issues,
eradicating segregation, and increasing access to education. In 1896 she was named
the president of the National Association of Colored Women, where she continued
to champion women’s voting rights. Terrell became a member of the National
Association for the Advancement of Colored People and later became the first
African-American admitted to the Washington Chapter of the American Association
of University Women. She laid the groundwork for an eventual court order in
District of Colombia v. John R. Thompson Co. that ruled that all segregated restaurants
in the city were unconstitutional. She lived to see the Brown v. Bd. of Educ. Supreme
Court decision and the end of de jure educational segregation. Her home in
Washington D.C. is now considered a national historic landmark. Terrell died on
July 24, 1954, in Annapolis, Maryland.
30. Id.
31. Id. at 97–98.
32. Id. at 156–157.
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the codes neared, Delta Sigma Theta members all over the country
mailed in letters protesting the codes and advocating for change.33
Delta Sigma Theta has a long history of community service and
donating its time and efforts to numerous causes. Additionally,
Delta Sigma Theta has constantly provided scholarships to its
members to promote and ensure higher education for AfricanAmerican women. Beginning in 1922, the sorority created the
Scholarship Award Fund and the College Tuition Fund, which Delta
Sigma Theta chapters and members have funded each year.34 The
first fund helped young women afford college; the latter funded
graduate level work.35
The most common and celebrated philanthropic act, however, is
the Jabberwock.36 The Jabberwock, created in 1925 by the Iota
chapter in Boston, Massachusetts, is a variety show with skits,
dances, and songs.37 The goal of the Jabberwock is to raise money
for the sorority’s scholarship funds.38 A typical Jabberwock requires
countless hours of rehearsal and production by numerous
competing teams. In the end, the audience decides the best team,
and all of the money raised goes towards benefiting women with the
most promise for the future.39 Since its inception, almost all chapters
have adopted some form of the Jabberwock as a staple of Delta
Sigma Theta life.40
Community service may arguably be the area in which Delta
Sigma Theta’s efforts have been most felt throughout its history. The
organization’s commitment to communities through empowerment,
sisterhood, and leadership has not waivered since its inception.
Many of the founding members could be found at the local
Freedmen’s Hospital providing cheer to sick children and making
33.
34.
35.
36.
37.
38.
39.
40.
GIDDINGS, supra note 3, at 158.
VROMAN, supra note 17, at 26.
Id. at 27.
Id. at 82.
Id. at 83.
Id.
Id.
Id.
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nightgowns for adult patients.41 Leadership through service and
sisterhood are common themes that bind Black Greek sororities;
among the groups, Delta Sigma Theta’s accomplishments are stellar.
Delta Sigma Theta members have not only engaged in passive
activism, they have also been proactively and passionately at the
forefront of movements for equality and social justice as
membership expanded beyond college campuses.
Beginning in the 1920s, May Week became a staple of Delta
Sigma Theta’s service. It was implemented by Delta Sigma Theta’s
first National President, Sadie Alexander, a civil rights activist and
outspoken critic of racial discrimination, segregation and
employment inequality.42 Alexander created May Week as an
outreach initiative to inform grade school children of the benefits of
41. VROMAN, supra note 17, at 17.
42. Id. at 25. Sadie Tanner Mossell Alexander was an esteemed lawyer who
was the first African-American woman to gain admission to the Pennsylvania Bar,
which started her long career advocating for civil and human rights. Alexander was
born in Philadelphia, Pennsylvania, on January 2, 1898, to the esteemed parents of
Dr. Nathan Mosell (founded the first African-American hospital) and mother Louise
Tanner (founding editor of the nation’s first African-American scholarly journal).
Alexander, following the prestige of her family, earned a scholarship to Howard
University and was directed by her mother to attend the University of Pennsylvania
instead. In 1918 she graduated with honors and a B.S. degree in education, but at
the same time was denied election into Phi Beta Kappa.
Alexander continued her studies at the University of Pennsylvania, earning an
M.A. degree and then a Ph.D. in Economics, becoming the first Black woman in the
U.S. to earn a doctorate in Economics. Unable to find work as an African-American
woman in Pennsylvania, she was hired by the Black-owned North Carolina Mutual
Life Insurance Company in 1921 and stayed there until 1923. She then returned to
Philadelphia to marry her college sweetheart, Raymond Pace Alexander, an
attorney. They had two daughters, Mary and Rae. In 1924 Alexander became the
first woman admitted to the University of Pennsylvania Law School, where she
graduated with honors. In 1927 she became the first Black woman to gain
admission to the Pennsylvania bar. She was also the first African-American woman
to hold both a Ph.D. and J.D. degree. She decided to open up a law firm with her
husband working on cases in the orphan’s court. Finally, in 1970, Alexander was
granted membership to Phi Beta Kappa. Alexander continued to practice law until
her retirement in 1982 and died in 1989 from the complications of Alzheimer’s in her
home in Philadelphia at the age of 91.
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higher education.43 Every year, for one week in May, each chapter
reached out to the local community through a series of presentations
and activities to demonstrate the importance of higher education to
young students.44 Not long after the initial implementation, the May
Week programs were expanded to create study groups for high
school students and college freshman led by the local Delta Sigma
Theta chapter.45
As the Depression gripped the country, Delta Sigma Theta
members mobilized to help the most vulnerable in society.
Throughout the country, Delta Sigma Theta chapters presented
money to charitable organizations, gave food baskets to those in
need, provided aid to the elderly, donated clothes, purchased
playground equipment, and paid nursery workers’ salaries.46 Delta
Sigma Theta members also spent much of their funds on supporting
children during this time—providing milk, toys, and various picnics
and parties for underprivileged children.47 One of the most common
projects was furnishing African-American hospitals with beds,
linens, and hospital machinery, as well as painting the facilities, and
providing other necessities.48
In 1929, under the direction of Ethel LaMay Calimese, Delta
Sigma Theta engaged in one of its largest public policy-related
endeavors, the Vigilance Committee. Layle Lane and Sarah Speaks
created the Vigilance Committee—which later became the Public
Affairs Committee—at the National Convention in order to maintain
meaningful and sustained connections with the political goals of the
sorority.49 Soon after creation, the Vigilance Committee began its
work by sending a questionnaire to all chapters requesting their
views on anti-lynching laws, reorganization of the courts, education
funding, military expenditures, and unemployment protections.50
43.
44.
45.
46.
47.
48.
49.
50.
Id. at 106.
Id. at 144.
Id. at 123.
Id. at 126.
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285
These questionnaires shaped Delta Sigma Theta policies for the
following decade. The Vigilance Committee worked in various
ways to bring attention to and rectify a wide range of acts of
injustice.
In 1930, there was a vicious lynching in Sherman, Texas, which
prompted the Vigilance Committee to send a written condemnation
to the Mayor of Sherman for his actions during and after the
incident.51 In 1930, the Hoover administration sent mothers overseas
to view their slain sons lost at war; however, African-American
mothers were given inferior accommodations on the trip to France.
Delta Sigma Theta spoke out to protest such treatment and
demanded the administration rectify the problem.52 Similarly, the
Hoover administration later would not allow an African-American
football player from Ohio State University to play in a game against
the U.S. Naval Academy. Delta Sigma Theta chapters around the
nation wrote letters to the administration to protest the unfair
treatment.53 Delta Sigma Theta also wrote to President Hoover to
urge his support of disarmament with other nations at the London
51. GIDDINGS, supra note 3, at 127. Cast against the backdrop of The Great
Depression, white tenant farmers had exhibited hostility toward Blacks in many
parts of Texas. In May 1930, George Hughes, a Black farm hand, was accused of
raping an unidentified white woman. Hughes admittedly went to the farm just
southeast of Sherman, Texas in search of the woman’s husband, who owed him
wages. Hughes reportedly demanded his wages at gunpoint and raped the woman.
He ultimately surrendered to authorities and was indicted for criminal assault by a
grand jury. In the days just before the trial, rumors spread about the case, among
them that Hughes’ alleged victim was unlikely to survive the injuries inflicted by
Hughes. A medical examination of the woman and of Hughes proved the rumors
to be false. In the midst of the jury trial, a white mob forced its way into the
courtroom. Despite Rangers’ efforts to secure Hughes, he was seized upon and
dragged behind a car to the front of a drugstore in the Black business section.
There, he was hanged from a tree by the mob. Furnishings from the local Black
businesses were used to fuel a fire under Hughes’ hanging corpse. The mob also
burned down various Black businesses in the area and prevented firemen from
saving the burning buildings. By daybreak, most of the town’s Black businesses
and a residence were in ashes. See Sherman Riot of 1930, TEX. ST. HISTORICAL ASS’N,
https://tshaonline.org/handbook/online/articles/jcs06 (last visited Apr. 16, 2016).
53. Id.
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[Vol. XIII
Naval Conference.54 Delta Sigma Theta did not limit its lobbying to
the White House either. When the Hawley-Smoot Tariff Act was up
for review before Congress, Delta Sigma Theta urged Congress not
to pass the bill, which would have imposed the highest tariff on
imports in American history. Delta Sigma Theta viewed the tariff as
counter-productive to its economic goals of free trade and economic
growth.55
Lobbying was not contained to the government either, as Delta
Sigma Theta also used its lobbying powers on many other
institutions, including at predominantly white colleges and
universities. Delta Sigma Theta applied pressure at the University of
Michigan and Ohio State University to end discriminatory practices.
Through Delta Sigma Theta’s work, both Universities made
concessions that ultimately led to more equal treatment for AfricanAmerican students.56 At the University of Illinois, then-Delta Sigma
Theta President Ethel Calimese wrote letters to the Dean of Women,
held numerous meetings with her, and ultimately convinced her to
openly acknowledge and address campus climate issues impacting
African-American students.57 Delta Sigma Theta members expanded
their policy proposals beyond traditional civil rights issues.
Many Delta Sigma Theta members were committed to achieving
economic justice and actively supported public policy initiatives to
address employment inequality. In 1930, members wrote to the
Secretary of Labor urging him to create a long-range public works
program. In conjunction with this endeavor, Delta Sigma Theta
enlisted the help of Oscar DePreist, the first African American
elected to Congress from the north.58
When the Roosevelt
administration created the Joint Committee on National Recovery
during the Great Depression, Delta Sigma Theta sent Esther Popel
54.
55.
56.
57.
58.
Id.
Id. at 136.
Id.
Id. at 128.
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287
Shaw to represent its interests before the committee while
contributing significant funds to the project to ensure its success.59
Delta Sigma Theta members also fought on the frontlines for
social justice during the 1930s, putting them on a trajectory for even
greater achievements over the decades. For example, Amelia
Boynton Robinson’s early activism began around the 1930’s when
she met her co-worker and ex-husband Samuel Boynton in Selma,
Alabama.60 Together they co-founded the Dallas County Voters
League in 1933, where they advocated for voting, education and
property rights for underprivileged African Americans. Robinson’s
work continued even decades later when she worked with Alpha
Phi Alpha member Rev. Dr. Martin Luther King, Jr. to plan the
Selma to Montgomery March on March 7, 1965, an event that
became known as “Bloody Sunday.” Publicity of Robinson and
other protesters being beaten in the streets prompted a national
outcry that led to the signing of the Voting Rights Act on August 6,
1965, by President Lyndon B. Johnson. In her later years, Robinson
served as the Vice-President of the Schiller Institute, where she
continued to be an active member in promoting civil and human
rights, and in 1990, she was awarded the Martin Luther King, Jr.
Medal of Freedom.61
60. Amelia Boynton Robinson was born on August 18, 1911 and spent her life
as an American civil rights activist on the front lines of the Civil Rights Movement
in Selma, Alabama. Robinson then became the founding Vice-President of the
Schiller Institute and was awarded the MLK Freedom Medal in 1990. She was born
in Savannah, Georgia to George and Anna Plats, whom both encouraged religious
and educational upbringing. Robinson attended Georgia State College, what is now
known as Savannah State University, for two years before completing her
undergraduate education at Tuskegee University and then furthering her education
at Tennessee State University, Virginia State University, and Temple University.
After being featured in the film, Selma in 2014, Robinson was honored by President
Barack Obama at his State of the Union address in January 2015; in March 2015, the
two held hands at the Edmund Pettus Bridge as they marched to celebrate the 50th
anniversary of the Selma to Montgomery March. After serving a life dedicated to
human rights and freedom, Robinson passed away on August 26, 2015, at the age of
104.
61. See Amelia Boynton Biography, BIOGRAPHY.COM, http://www.biography.com/
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During the 1930s, Delta Sigma Theta members assisted
individuals unfairly targeted for their civil rights work. For
example, when Louise Thompson’s arrest became national news in
1934, Delta Sigma Theta members immediately stepped forward to
support her. Thompson was a member of the International Workers
Order (IWO), a socialist organization working to promote a more
socialist agenda. The IWO was founded in 1930 to provide workers
with affordable life insurance; it was unique among fraternal groups
as membership included “more than fifteen different nationalities,
organized in their own national sections, plus native born black and
white workers.”62 The IWO was one of the most “leftwing of all
fraternal organizations and the most successful Communist-led mass
organizations . . . by the mid-1930s it was one of the fastest growing
fraternal organizations.”63
When Thompson was arrested during a raid on her apartment,
Delta Sigma Theta immediately began working on her release.
Although the sorority’s efforts did not directly impact Thompson’s
case, Delta Sigma Theta’s open support cemented its place among
social activist organizations and demonstrated a high level of
commitment to social justice among its members.64 As early as the
1930s, Delta Sigma Theta supported organizations such as the
National Urban League, the NAACP, the Association for the Study
of Negro Life and History, and the National Youth Administration.65
BGLOs were beginning to expand and connect with other civil rights
organizations and solidify relationships that would last for decades.
It was during this time, particularly during National President
Vivian Osborne Marsh’s administration, that Delta Sigma Theta
began working with Alpha Kappa Alpha on two of its initiatives, the
people/amelia-boynton-21385459#related-video-gallery (last visited Oct. 2, 2015);
Margalit Fox, Amelia Boynton Robinson, a Pivotal Figure at the Selma March, Dies at 104,
N.Y. TIMES (Aug. 26, 2015), http://www.nytimes.com/2015/08/27/us/amelia-boyntonrobinson-a-pivotal-figure-at-the-selma-march-dies-at-104.html?_r=0.
62. Roger Keeran, National Groups and the Popular Front: The Case of the International
Workers Order, 14 J. AM. ETHNIC HIST. 3 (1995).
63. Id.
65. Id. at 161.
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289
Mississippi Health Project and the National Non-Partisan Council.66
The Mississippi Health Project helped provide medical care and
immunizations to those living in rural Mississippi, and the National
Non-Partisan Council worked with the NAACP to promote its
future goals.67 While Alpha Kappa Alpha took the lead on the
projects, Delta Sigma Theta contributed regularly to promoting these
endeavors.68 Delta Sigma Theta members continued their work with
the NAACP on the Fund for Freedom project, to which members
annually contributed money and support.69 By the 1970s, eightyseven percent of chapters pledged life membership to the NAACP,
while sixty-seven of the chapters annually contributed to other civil
rights organizations.70
Another common endeavor for Delta Sigma Theta was
promoting education. In 1937, Congress was on the verge of passing
66. GIDDINGS, supra note 3, at 180. Vivian Osborne Marsh was born in Houston,
Texas on September 5, 1897. Marsh received her bachelor’s and master’s degrees in
Anthropology from the University of California, Berkeley (UC Berkeley); she was one of
the first African Americans to receive a master’s degree from UC Berkeley. Marsh
founded Berkeley’s Kappa Chapter of Delta Sigma Theta Sorority; she also founded
several other chapters and served as President, Far West Regional Director, and National
President. Marsh was the National President of Delta Sigma Theta Sorority from 193539.
Marsh married Leon F. Marsh, Sr. with whom she was involved in many fraternal
organizations throughout California. Marsh was a community activist, a Republican,
and government official. She ran in 1959 for a City Council position in Berkeley, but did
not win. Her two major projects included Traveling Library and Teen Lift. She was also
elected President of the California State Association of Colored Women which later,
under her supervision, established the Fannie Wall Children’s Home and Day Nursery
in Oakland. She was also involved in the National Council of Negro Women as a State
Supervisor of the National Youth Administration where she helped find employment
for unemployed youths during the Depression. Marsh died in March 1986, after
suffering a stroke during a convention earlier that year.
67. Tom Ward, Medical Missionaries of the Delta: Dr. Dorothy Ferebee and the
Mississippi Health Project, 1935-1941, 63 J MISS. HIST. 189, 189–203 (2001); DEBORAH E.
WHALEY, DISCIPLINING WOMEN: ALPHA KAPPA ALPHA, BLACK COUNTERPUBLICS, AND
THE CULTURAL POLITICS OF BLACK SORORITIES 47 (2010).
70. DELTA, 1979, at 9.
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the Harrison-Black-Fletcher Bill for Federal Aid to Education.71
Although the bill increased funding, it made no allocations to
African-American institutions. In response, hundreds of Delta
Sigma Theta members sent letters to their Congressional
representatives and staged protests to the bill, which ultimately
failed.72 Delta Sigma Theta also became active in supporting
Congressman Arthur W. Mitchell, who regularly introduced bills
that worked to eliminate discrimination and segregation.73
In 1937, Delta Sigma Theta began one of its largest, most
ambitious projects—the National Library Project (NLP)—after seeing
the lack of library facilities afforded to minorities in the South.74
Created at the Delta Sigma Theta National Conference, the sorority
appointed Anne Duncan as the first leader to guide the NLP until
1950, when it became incorporated into the Five-Points Program.75
By 1940, there were only ninety-nine libraries that served African
Americans throughout the South and only about five percent of rural
African Americans had access to libraries.76 Realizing a significant
need, Delta Sigma Theta mobilized its membership and each chapter
began purchasing books and organizing them into locked baskets for
efficient transportation.77 This work continued for decades, with the
sorority implementing a “bookmobile,” which traveled across the
country educating and encouraging reading among school
children.78 The bookmobile project soon earned the title “Ride The
Winged Horse” and eventually won awards including a special
Certificate of Merit, a Community School Improvement Award, and
the coveted American Library Award.79 Delta Sigma Theta also
created a similar project on Saint Helena Island in South Carolina,
71. DELTA, 1979, at 42.
72. Id.
74. Library, DELTA, June 1960, at 8.
78. Appraising Values, DELTA, supra note 74, at 8.
79. Id. See also National Deltas Hire Associate Director Washington, L.A. TRIBUNE,
May 8, 1959, at 10.
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where the local Delta Sigma Theta chapter created nine small
libraries across the island to provide the residents with access to
library materials.80 Delta Sigma Theta has incorporated the library
service into the Five-Points Program. Many chapters across the
nation continue to provide reading materials to those without access
and now include communication skill seminars to provide services
to communities lacking resources or that are geographically
isolated.81
With the books purchased, the first decision was where to
begin. With the guidance of Mollie Houston Lee and Dr. Virginia
Lacy Jones, the sorority chose numerous cities throughout the South,
beginning in Franklin County, North Carolina.82 Franklin County
had over forty schools, most only had one or two teachers. For this
reason, Delta Sigma Theta provided hundreds of books for the
county. By the end of the project, “thank you” letters were flowing
in from across Franklin County for all that Delta Sigma Theta had
provided.83 Franklin County even built a local library and named it
after Delta Sigma Theta; in response, Delta Sigma Theta provided
$500 for the purchase of new books for the library.84 Carrolton,
Georgia created another library with the local Delta Sigma Theta
chapter providing $500 of start-up money, in addition to helping the
local library raise $2,000 from other sources.85 After it was built, the
library fell short on funds and could not provide film readers,
furniture, or broad services to local residents. Delta Sigma Theta
stepped in and covered the costs, which allowed the library to
remain open and flourish.86
80.
81.
82.
83.
84.
85.
86.
Id.at 110.
Id. at 47.
Id. at 48.
Id.
Id. at 49.
Id.
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[Vol. XIII
II. 1940s–1960s: Emerging Civil Rights Concerns
At the dawn of a new decade, Delta Sigma Theta members were
making great strides in the area of anticolonial activism. The
Council on African Affairs (CAA), until 1941 called the International
Committee on African Affairs (ICAA), was a volunteer organization
founded in 1937. It was the leading voice of anticolonialism and
Pan-Africanism in the United States, and internationally before the
Cold War. Among its founders and early, key members were Alpha
Phi Alpha Fraternity brothers Paul Robeson and W. E. B. Du Bois, as
well as Max Yergan, Alphaeus Hunton, Jr., Raymond Leslie Buell,
and Ralph J. Bunche. Robeson’s wife and Delta Sigma Theta
member, Eslanda Goode Robeson,87 was an active member of the
CAA, which articulated and promoted the connection between the
87. Eslanda Goode Robeson had an unconventional but extraordinary life due
to her experiences in both anthropology and being married to her first husband Paul
Robeson. Robeson was born on December 15, 1896, in Washington, D.C. She was
the only daughter and the youngest of three children to John J. Goode and Eslanda
Cardozo. Robeson’s father unexpectedly died causing their family to move to
Chicago in 1912. Robeson graduated high school at the age of sixteen and entered a
domestic science program at the University of Illinois on a full scholarship. Over
time Robeson lost interest in the curriculum and decided to transfer to Teachers
College of Columbia University in New York City, where she graduated with a
Bachelor’s of Science degree in 1920.
After college Robeson secured a job in the surgical pathological laboratory at
the Presbyterian Hospital where Robeson met her future husband Paul Robeson,
who attended Columbia Law School. They married a year later on August 17, 1921,
and continued to work in the hospital until 1925. They had one son named Paul
Robeson Jr. After Robeson’s husband committed to becoming a full-time actor,
Eslanda decided to follow him on all his assignments as his manager. While on the
road in the late 1920s Robeson wrote her first manuscript, which was a biography of
her husband who she divorced two years later. Robeson decided to enroll in
graduate school at London University from 1933 to 1935, specializing in
anthropology with a focus on colonized Black people around the world. She later
graduated in 1937 from the London School of Economics. After anthropological
visits in Costa Rica and Honduras in 1940, the Robeson’s moved from New York
City to Enfield, Connecticut. Throughout World War II, she lectured frequently on
race relations and worked professionally with Pearl Buck. Robeson obtained a
Ph.D. at Hartford Seminary in Connecticut in 1945. She died on December 13, 1965,
in New York City.
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struggle of African Americans in the United States and the destiny of
colonized, indigenous peoples around the world.88
In 1941, Elsie Austin presented a Delta Sigma Theta report
entitled “Jobs Analysis and Opportunities Project.”89 The aim of the
project was to determine where African-American women lacked job
opportunities, then use Delta Sigma Theta resources to raise
awareness and educate women on how to help.90 Delta Sigma Theta
launched its job opportunity program in 1941.91 Through the job
program, Delta Sigma Theta set up clinics in high schools and
colleges around the country educating youth about available job
fields.92 Delta Sigma Theta’s job program eventually expanded to
include teachers, guidance counselors, and parents. Its goal was to
encourage parents and raise the aspirations of their children. Delta
Sigma Theta also contacted prospective employers who were
perpetuating discrimination to inform them that sorority members
were working to end employment discrimination.93 In 1947, Delta
89. Library, supra note 74, at 10. Austin was born in 1908 in Tuskegee, Alabama.
Her mother taught Household Science at Tuskegee Institute and her father served as
Commandant of Men. Her mother later taught at the Stowe School and her father
worked in insurance, after the family moved to Cincinnati.
Graduating from high school in 1924, she enrolled at the University of
Cincinnati. Austin earned her undergraduate degree in 1928 and law degree in
1930, within one year at the University of Cincinnati Law School. While completing
her law degree, she worked on the staff of the Rocky Mountain Law Review and the
Cincinnati Law Review. She was the first African-American woman to receive a law
degree from the University of Cincinnati. Austin was the National President of
Delta Sigma Theta Sorority from 1939 to 1944. She was appointed Assistant to the
Attorney General of Ohio, and was the first Assistant to the Attorney General of any
U.S. state. She later worked in the legal divisions of several federal government
agencies. After retiring, she spent almost a decade in Africa, working with the
United States Information Agency, where she helped found and operate several
educational and cultural programs. She was appointed to the Board of Trustees of
Wilberforce University in 1934 and was an active member of the National
Association for the Advancement of Colored People. Austin died in October 2004.
91. Library, supra note 74, at 10.
92. Id.
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Sigma Theta redoubled its efforts for fair employment and adopted a
new resolution highlighting its efforts, which included: promoting
better training for African-American workers, increasing awareness
of the labor market challenges for African-American workers, and a
stronger effort to enact policy changes that would improve the status
quo for African-American workers.94 The Beta Alpha chapter began
lobbying the tobacco industry to promote equal rights for their
mostly African-American workforce.95 In 1967, Delta Sigma Theta
supported Job Opportunity Clinics in the southern region cosponsored by Natural Urban League. In 1969, the sorority launched
national programs—Delta Womanpower in the World of Work and
the Career Motivation Program—conducted on forty college
campuses.
When the United States became involved in World War II, Delta
Sigma Theta rose to the challenge and began a wide variety of warrelated projects. At Delta Sigma Theta’s 1942 National Convention,
the sorority adopted the slogan, “Delta Dynamic for Defense,” and
began investing in government bonds to support the war effort, as
well as bolstering support for United Service Organizations,
especially African-American servicemen.96 Later, Delta Sigma Theta
began the Victory Book Drive led by Victoria McCall, which
collected books for servicemen overseas to provide them with
entertainment while spending time in their camps. Delta Sigma
Theta further provided countless Red Cross kits and even purchased
an ambulance to help the servicemen fighting the war.97 As the war
ended and the new United Nations was readied, Delta Sigma Theta
authorized Bertrell Wright to send a letter to each member of the
Dumbarton Oaks Delegation from the United States and advocated
for a more robust proposal to further promote equal rights for
people in the United States and across the world.98 In 1947, Sadie T.
94.
95.
96.
97.
98.
Id. at 209.
Id. at 199.
Id. at 200.
Id. at 207.
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M. Alexander was appointed to the Presidential Commission on
Human Rights.99
Delta Sigma Theta members frequently engaged in
presentations and held beauty pageants to raise money for various
philanthropic causes. A chapter in Ohio held a pageant that raised
money for the CAA, which received all of the proceeds from the
pageant.100 In 1946, the Beta Beta chapter in Texas raised over $7,000
through various activities and events to help build a child welfare
center in Houston, and the Beta Kappa chapter in Virginia raised
$1,070 to help build a nursery school.101 Two chapters in Michigan,
Alpha Pi Sigma and Tau, worked together to raise money to build a
boarding house for delinquent young women and girls.102 The Delta
Home for Girls, as it would be called, soon became operational and
housed numerous troubled women, two of which were accepted into
a Catholic institution.103
In 1947, Delta Sigma Theta teamed up with the National Urban
League and created experimental programs in Atlanta and Detroit
that worked to compare the vocational counseling needs of young
people in segregated and nonsegregated communities.104 When
Founder Jessie Dent sued the Galveston Independent School District,
Delta Sigma Theta members in the area mobilized to help with
Dent’s landmark victory to gain equal pay for African-American
teachers in the district.105 In 1954, the Supreme Court handed down
the historic Brown v. Board of Education decision. This decision led
many African-American teachers to question their position in this
new system. Delta Sigma Theta answered those questions by
conducting reports on what this decision would bring and providing
support to African-American teachers around the nation as they
faced an uncertain future.106 Delta Sigma Theta also sent numerous
99. Corporate Report, DELTA, 1949, at 40.
101. Id.
102. Id. at 210.
103. Id.
104. Id. at 206.
105. Id. at 208.
106. Id. at 232, 233.
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[Vol. XIII
members from all over the country to the South to participate in the
Freedom Summer—a move designed to help enforce the newly
minted Voting Rights Act and ensure all eligible voters were
registered properly.
In 1948, Delta Sigma Theta formed an affiliation with the
American Council on Human Rights (ACHR), which organized
Black opinion on numerous legislative and policy implications and
provided a unified opinion in favor or in opposition to these
policies.107 Delta Sigma Theta’s work with the ACHR lasted for a
decade and a half. In 1952, Delta Sigma Theta members attended the
ACHR meeting in Cleveland, Ohio, where 3,000 delegates from
various fraternities and sororities represented their organizations.108
Many Delta Sigma Theta members held positions in the ACHR.
Patricia Roberts Harris, a graduate from Howard University and an
Alpha chapter initiate, was in charge of ACHR’s social action
programs.109
Other prominent members of the sorority held
positions as well, including Mae Downs,110 first Vice-President;
Dorothy Height,111 Vice President in 1952; and Bertell Wright,
109. Id. at 222.
110. Id. at 222.
111. Id. Dorothy Irene Height was an American educator and civil rights activist
who channeled most of her energy to addressing problems faced by African-American
women including voting rights, education, and unemployment. For forty years, Height
was the president of the National Council of Negro Women. In 1994 President Bill
Clinton honored her with the Presidential Medal of Freedom and in 2004 she was
awarded the Congressional Gold Medal by Congress. Height was born in Richmond,
Virginia, on March 24, 1912, but moved with her family to Pittsburgh, Pennsylvania,
during her childhood. After receiving a scholarship from the Elks, Height was admitted
to Barnard College in 1929; however, she was turned away upon entrance due to an
unwritten policy stating that only two Black students were allowed in each year. Soon
after, Height applied to New York University, where she earned an undergraduate and
master’s degree in educational psychology.
Throughout her life Height was an active member of Delta Sigma Theta sorority,
implementing numerous leadership and educational programs. Height began her
career at age twenty-five with the New York City Welfare Department and proceeded to
get involved as a civil rights activist, joining the National Council of Negro Women.
Height was appointed president in 1957. Furthermore, during the peak of the Civil
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297
President in 1953 and 1954. In the early 1960s, Delta Sigma Theta
participated in the Student Emergency Fund created by the ACHR.
The fund was designed to pay fines and bonds for those arrested
during the Civil Rights Movement. The fund supported a variety of
activities, including helping to pay the tuition of the first North
Carolina Agricultural and Technical (NCA&T) students to
participate in a sit-in.112 Other student activists, such as Charlayne
Gault, a Delta Sigma Theta member from Georgia who worked to
integrate the University of Georgia, were supported by the fund.113
The ACHR had both short- and long-term impacts on Delta
Sigma Theta’s internal organization.114 Several sorority activities—
formerly delegated to sorority committees—were now channeled
through the intra-fraternal council.115 While national programs were
running smoothly and some of the internal structures were
coordinated through the ACHR, the sorority focused on its next
stage of development.116 The sorority took this time to reevaluate
itself; the result was a more streamlined sorority structure.117 Delta
Sigma Theta was a dedicated member of ACHR; but by the 1960s,
the sorority believed its resources would better support other
organizations.118 The ACHR leadership agreed to disband the
Rights Movement, Height organized many programs including, “Wednesdays in
Mississippi” which united both white and black women of the north and south, to create
conversation and mutual understanding. Height was influential among American
leaders including President Lyndon B. Johnson, President Dwight D. Eisenhower, and
First Lady Eleanor Roosevelt. Height continued to be a prominent civil rights figure
even in her later years. Height and fifteen other African-American women formed the
African-American Women for Reproductive Freedom in 1990. Height was a notable
guest at President Obama’s inauguration on January 20, 2009. Sadly, on April 29, 2010,
at the age of 98, Height passed away from unspecified reasons. Height’s legacy and
achievements will forever be commemorated and honored.
115. Id.
116. Id. at 224.
117. Id.
118. Id. at 242.
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Council in 1963 due to financial reluctance among its allies and
pressure from the NAACP.119
Under the presidency of Jeanne Noble, Delta Sigma Theta
produced a project manual for its Delta Five-Points Project. This
manual “present[ed] suggested blueprints for project organization”
for any of the points in the Delta Five-Point Project.120 The Five
Points in the project were library, job opportunities, community
120. DELTA SIGMA THETA’S FIVE POINT PROJECT MANUAL, at 24 (on file with
authors) [hereinafter FIVE POINT PROJECT]. Jeanne L. Noble was born in Albany,
Georgia on July 18, 1926, as the first child of Floyd and Aurelia Noble. Noble
earned a B.A. from Howard University in 1946 and a master’s degree from
Columbia University in 1948. Noble was the National President of Delta Sigma
Theta Sorority from 1958-1963 as well as vice-president with financial assistance and
moral support to the Little Rock Nine. She helped DST desegregate Albany and
open a chapter in Liberia, as well as sponsor a maternity wing in a remote Kenyan
hospital. Ebony magazine named her “one of the 100 most influential Negroes of the
Emancipation Centennial Year [1963].”
She taught summer school at Albany State College and later accepted a position
as Dean of Women at Langston University. She studied Black college women and
their backgrounds, educations, and achievements with a grant from Pi Lambda
Theta. In 1955 she earned a doctorate in Educational Psychology and Counseling,
and studied at the University of Birmingham. Noble was later hired by New York
University as Associate Professor of Teaching at the Center for Human Relations in
the Steinhardt School of Culture, Education, and Human Development. She
advanced to full professor and held summer visiting professorships at the
University of Vermont and Tuskegee Institute. She then served as Assistant Dean of
Students at City College of New York. Noble worked on a forty-page plan to
increase jobs for girls and women aged sixteen to twenty-one for President Johnson
to help plan the Women’s Job Corps. Noble also served on educational and
investigative commissions for Presidents Nixon and Ford.
Noble’s publications include: The Negro Woman’s College Education, published by
Columbian University Teachers College in 1956; “Negro Women Today and Their
Education” in The Journal of Negro Education; College Education as Personal
Development in 1960, The Negro Woman College Graduate in 1970; and Beautiful, Also,
Are the Souls of My Black Sisters in 1976. Noble was honored with the Pi Lambda
Theta Research Award for her book The Negro Woman College Graduate. Noble was
active in the Episcopal Church in New York City. She was named Professor
Emeritus of Brooklyn College and City University of New York’s Graduate Center.
Noble died on October 17, 2002, at New York University Medical Center of
congestive heart failure.
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volunteerism, mental health, and international affairs.121 It was
intended that this project be a “flexible and expressive vehicle to
confront and help eradicate the problems of the day.”122 Moreover,
chapters showed creative approaches to motivate youth through job
opportunity and library outreach programs; chapters also shared
skills and goods through the Volunteers for Community Service.123
As Delta Sigma Theta chapters worked to combine civil rights,
job readiness, and education efforts in their communities, their work
was recognized and supported by the federal government. For
example, Berkeley’s chapter secured a $4,000 federal grant used to
help motivate junior high school students toward college and future
careers.124 A chapter in St. Louis received federal funding to assist
with the costs of college entrance exams and college application fees
for low-income students.125 Delta Sigma Theta members have not
limited scholarship offers to only members within the sorority. The
sorority has consistently provided money to young women looking
to pursue studies overseas, much like Dorothy Maynor, a young
woman looking to conduct music and study in Europe.126
Kumari Paul was another young woman who received money
from Delta Sigma Theta to study in India.127 Also, Delta Sigma Theta
has given money to graduates of Lincoln and Virginia Union
Universities to enable women to further their studies after
graduation.128 The sorority also supported efforts to increase literacy
in underserved areas and schools. In 1950, the Delta Sigma Theta
Bookmobile extended service in Northwest Georgia as part of the
West George Regional Library.129 In 1956, Delta Sigma Theta gifted a
sewing machine to a young woman from Ghana while she visited
121. FIVE POINT PROJECT, supra note 120, at 24.
122. Achievement and Potentiality, DELTA, 1962, at 32.
123. Id.
124. Dr. Geraldine P. Woods, Decisive Action for Freedom through Education, DELTA,
Mar. 1967, at 18.
125. Id.
126. Id. at 191.
127. Id.
128. Id.
129. DELTA, 1979, at 40.
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the United States. Once the young lady returned to Ghana, she
reported that she had become a leader in African fashion and was
wildly successful due to Delta Sigma Theta’s donation.130 In 1959,
under then-National President Jeanne Noble, Delta Sigma Theta
sponsored Lucy Lameck, a young political leader of the Tanganyika
African National Union who was working to promote women’s
rights in many of the new African nations.131
In 1951, the Urban League conducted a study to determine the
prevalence of discrimination among downtown hotels and
restaurants in Portland, Oregon. As a member of Delta Sigma Theta,
Ellen T. Law volunteered to be a human “guinea pig” for the
discrimination study.132 As a member of the study, Law visited
restaurants and took notes about her dining experience. From that
survey, Oregon enacted a state law against discrimination in public
accommodations in 1953; it was later broadened in 1957.133 These
events led to the founding of the Civil Rights Division at the U.S.
Department of Justice, which was established to replace the Fair
Employment Practices Division in 1957.134
Ignited by student protests, the Civil Rights Movement caught
fire nationwide. Less than two years later, over thirty-five percent of
Delta Sigma Theta’s membership had participated in sit-ins.135 When
conditions turned violent in Little Rock, then-Delta Sigma Theta
President Jeanne Noble paid a visit to the city to survey the scene.136
She found numerous members active in the cause and attempting to
maintain order amongst the more violent factions.137 Delta Sigma
Theta chapters across the nation also continued to run advertisement
131. Id.
132. Ellen T. Law, Overcoming Barriers to Intergroup Communications, 46 DELTA:
COMMUNICATIONS, 1960, at 23.
133. Id.
134. Id.
135. VROMAN, supra note 17, at 127, 256.
136. Id. at 244.
137. Id.
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301
space in the Arkansas State Press—a pro-equal rights paper run by the
husband of Daisy Bates that lost all of its funding during this time.138
Through the chapters’ generous donations, the paper was able
to stay afloat and continue business for a few more months.139 Delta
Sigma Theta women worked with “Black families in Albany,
Georgia, whose means of income had been cut off due to their efforts
to obtain the right to vote.”140 Moreover, Delta Sigma Theta
members in Albany were often in the middle of protest activities,
which placed them at risk. The then-chapter President, Marion
King, was attacked by police officers who knocked her to the ground
as she delivered food to peaceful teenage protesters. King was six
months pregnant and lost her baby as a result of the police attack.141
In 1953, Delta Sigma Theta sponsored a town meeting with
Stanley High, Editor of Reader’s Digest, and Dr. Charles S. Johnson,
the founder of the National Urban League’s Opportunity magazine
and President of Fisk University. The goal of the town meeting was
to discuss the moral fabric of the community and determine whether
it was eroding.142 The sorority held another town meeting in Detroit
and discussed the role of race in America on an international scale.143
Both meetings served the purpose of providing knowledge and
awareness to the community of problems Delta Sigma Theta
believed needed attention.144 The sorority also sponsored the
Portland Conference on Counseling Minority Youth. The Delta
Workshop directed attention to the less tangible needs of Negro
youth, which are still some of the most fundamental needs.145
Beginning in 1955, Delta Sigma Theta implemented the Delta
Volunteers for Community Service program, in conjunction with the
Five-Point Project. The Five-Point Project was designed to motivate
139. Id.
140. See Gasman, Passive Activism, supra note 3.
141. Id.
143. Id. at 220–21.
144. Id.
145. Geraldine Woods, Delta Meets the Challenge of Tomorrow's Opportunities for Minority
Youth, DELTA, 1963, at 55.
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Delta Sigma Theta chapters to become more involved in their
community and increase volunteerism with Delta Sigma Theta
partners like the YWCA, American Red Cross, the National Urban
League, Girl Scouts of America, and the National Community Chest
and Councils.146 As part of the mental health initiative for the FivePoint Project, Delta Sigma Theta chapters throughout the Midwest
raised money to provide radios, television sets, toiletries, games, and
magazines to local mental health patients.147 Many chapters also
held informative sessions on mental health to provide the public
with knowledge of what remains a shrouded problem.148
Under the goals of the Five-Point Program, Delta Sigma Theta
also established the Southern Regional Project, an endeavor led by
Cecil Edwards designed to improve services to children with
impaired hearing.149
Delta Sigma Theta members located in
Atlanta—the site of the Southern Regional Project—contributed to
the programs by helping the specialists involved and running the
center’s day-to-day needs.150 Continuing its programs in the South,
Delta Sigma Theta began the “Ride the Winged Horse” program in
Tuskegee, Alabama.151 The program was designed to foster good
reading habits in local children; the local Delta Sigma Theta chapter
ran the entire program.152 This program eventually spread to
chapters in St. Petersburg, Florida, and Bradenton, Florida, where
the local chapters would continue to run the program.153 Delta
Sigma Theta continued to make notable strides in literacy and
education with support and services related to education as one of
the primary community service activities.
Delta Sigma Theta possessed a large national influence as well.
The newly created International Project, a part of the Five-Point
Program, grew significantly. In 1955, Hurricane Hazel hit Haiti and
146.
147.
148.
149.
150.
151.
152.
153.
VROMAN, supra note 17, at 108, 121.
Id. at 135.
Id.
Id. at 111.
Id.
Id. at 113.
Id.
Id. at 116.
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303
caused millions of dollars worth of damage.154 Delta Sigma Theta
had recently established a chapter there and felt the need to
contribute. Delta Sigma Theta sent $1,000 to the heavily damaged
village of Jeremie to provide tools, sewing machines, food, and other
necessities.155 The economic level of the village was raised so much
by this donation that Delta Sigma Theta was not allowed to give any
more money to the region for fear of unbalancing the region.156
Individually, Delta Sigma Theta members also worked to
integrate public educational institutions. As a teenager, Daisy Bates
met her husband Christopher, who was an experienced journalist.157
They married and moved to Little Rock, where they operated the
Arkansas State Press, a weekly African-American newspaper that
championed civil rights. Bates also became president of her NAACP
chapter in 1952. After the landmark 1954 Supreme Court ruling in
Brown v. Board of Education, when school segregation continued in
Arkansas, the Bateses used their media presence to report on these
events. In 1957, Daisy Bates used her authority as NAACP chapter
head and as a reputable newspaper publisher to help the famous
Little Rock Nine become the first African-American students to
attend Central High School in Little Rock. On September 4, 1957,
Arkansas Governor Orval Faubus sent members of the Arkansas
National Guard to prevent the Little Rock Nine from entering the
school. Undeterred, the Little Rock Nine had their first integrated
day of school on September 25, 1957, guarded by U.S. soldiers sent
by President Dwight D. Eisenhower.
155. Id. at 126.
156. Id.
157. Daisy Bates was an African-American civil rights activist, newspaper publisher, and journalist. She is well-known for documenting the battle to end segregation in
her home state of Arkansas. Born November 11, 1914, in Huttig, Bates suffered loss
early on in life. Her mother was the victim of a deadly hate crime, and her father left
soon after. She has been recognized by the Associated Press as the 1957 Woman of the
Year in Education and one of the top ten newsmakers in the world. In 1960, she moved
to New York to write The Long Shadow of Little Rock, her memoir of her experiences with
the Little Rock Nine. Daisy Bates was also the only female to speak at the Lincoln
Memorial at the 1963 March on Washington. She is an honorary member of Delta Sigma
Theta Sorority, Inc.
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In 1958, Delta Sigma Theta launched a national drive to raise
money for Africa’s first native-opiated hospital. Through the drive
and additional fundraising, the sorority raised a total of $5,000 for
that hospital.158 In the 1960s Delta Sigma Theta supported projects
that stressed the importance of person-to-person relationships in the
world community. It joined twenty-four other organizations in
Harrington, New York, for the 1962 American Negro Leadership
Conference on Africa.159 The resolutions passed at that conference
were presented to the President by the Call Committee.160
In 1961, under the presidency of Jeanne L. Noble, Delta Sigma
Theta again used its philanthropic arm to fund another project—this
time in Kenya. Using money from various sources, Delta Sigma
Theta contributed $5,000 and helped build the maternity ward in the
Njore Mungai Hospital in rural Kenya.161 In 1962, forty-five
members went on the African Study Tour and took Friendship Trees
with them.162 Following the study tour, Delta Sigma Theta projects
involving international affairs emerged. The sorority presented over
$1,500 to the National Council of Women in Liberia and the
Women’s Association for Aid to Rwanda Women for village
developments that taught girls vocational and educational skills.163
They also pledged $5,000 to the Thika Hospital that opened in 1964.
Not only does that hospital provide medical services, it also trains
nurses and midwives. New York’s Queen Alumnae Delta Sigma
Theta chapter underwrote the education of six children in Kenya.164
For many years, Delta Sigma Theta chapters across the nation
have held annual Christmas parties where the chapter provides
underprivileged children with Christmas presents, food, and holiday
cheer.165 Across the nation, Delta Sigma Theta has held these annual
parties to support those in need. As tensions rose in Little Rock,
158.
159.
160.
161.
162.
163.
164.
165.
Lena Horne Honorary Member, DELTA, 1959, at 7.
American Negro Leadership Conference on Africa, DELTA, 1962 at 51.
Id. at 52.
The Story of the Friendship Trees, DELTA, 1962, at 47.
International Understanding, DELTA, Mar. 1967, at 56.
Id. at 57.
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305
Arkansas, Delta Sigma Theta provided gifts and money to Little
Rock students who endured the tedious situation.166 When an entire
class of African-American students were refused graduation at
Prince Edward County High School in Virginia because the school
shut down to avoid integration, Delta Sigma Theta provided all fiftyseven seniors with a Christmas party that raised scholarship money
for them to attend school elsewhere.167 In 1960, Delta Sigma Theta
held a Christmas party for four six-year-olds who were the first to
desegregate a school in New Orleans.168 In 1961, Delta Sigma Theta
gave Christmas gifts to seventy high school students in McComb,
Mississippi, who were expelled after refusing to sign a pledge to
stop their nonviolent demonstrations against the arrest of a fifteenyear-old student named Brenda Travis who violated travel
segregation laws.169
Delta Sigma Theta also continually wrote to President
Eisenhower during this time to urge him to take a stronger stance on
civil rights.170 When the Civil Rights Act of 1964 was proposed,
Delta Sigma Theta not only sent hundreds of members to march on
Washington in support of the bill, but also used all of its resources to
apply pressure and ensure the bill passed.171 Delta Sigma Theta
managed to acquire a room in the capital where Delta Sigma Theta
leadership met with numerous Senators and urged their support of
the bill.172 Delta Sigma Theta followed a similar path with the Voting
Rights Act.173
The tone of President Geraldine Pittman Woods’ address to
sorority members in 1964 was that of encouraging participation. In
her address, she urged all members to either remain active or to
become active and for all members to work together to help the
166.
167.
168.
169.
170.
171.
172.
173.
Id. at 255.
Id.
Id. at 248.
Id. at 263.
Id. at 264.
Id. at 263.
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sorority reach its goals.174 Delta Sigma Theta made a deposit for the
purchase of a John F. Kennedy Chair at the John F. Kennedy Center
for the Performing Arts in Washington D.C.175 The sorority was also
involved in voter registration and education in cooperation with the
NAACP, Urban League, and N.C.N.W.176 Additionally, Delta Sigma
Theta aided the National Scholarship Service Fund for Negro
Students and awarded scholarships to Ugandan girls at the request
of the State Department.177
During the 1960s, individual Delta Sigma Theta members flew
the sorority banner in their social justice work. Among them was
Joan Trumpauer Mulholland, who participated in the Mississippi
Freedom Ride during the summer of 1961.178 She had arrived in
Jackson, Mississippi by train from New Orleans, Louisiana. She was
shortly arrested by Jackson police and taken to a waiting paddy
wagon; she was refused bail and transferred to Parchman State
Prison Farm. There she was put on trial and found innocent. After
the Freedom Rides, Trumpauer Mulholland studied at Tougaloo
College and was a Freedom Summer organizer in 1964. As one of
the first white women to become a Delta Sigma Theta member,
Trumpauer Mulholland set an example of white-black solidarity
with respect to social justice activism.
In 1962, honorary member Fannie Lou Hamer became a civil
rights activist after attending a protest meeting.179 That year, she
174. Geraldine Woods, Delta Sigma Theta Regional Conferences, 1966 Presidential
Address, DELTA, 1967, at 13–14.
175. Id. at 71.
176. Id.
177. Id.
178. Joan Trumpauer Mulholland attended Duke University and was a part-time
secretary in the Washington office of Senator Clair Engle of California. While in
Washington D.C. Mulholland participated in over three dozen sit-ins. She later
worked at the Smithsonian with the Community Relations Service at the Departments
of Commerce and Justice before teaching English as a second language at an
Arlington, Virginia elementary school.
179. Fannie Lou Hamer was born in Montgomery, Mississippi, on October 6,
1917. She was the youngest of twenty children and began working the fields when
she was six years old. She dropped out of school at age twelve to help out her family.
In 1944, she married Perry Hamer and worked on a cotton plantation near Ruleville.
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307
was one of a small group of African Americans in her area to register
to vote. Because of this, she was fired from her job at the plantation.
She then dedicated her life to fighting for civil rights. She also
worked for the Student Nonviolent Coordinating Committee.
During her service, she was threatened, harassed, beaten, and shot
at. In 1963, she was booked in a Winona, Mississippi, jail, where she
suffered severe kidney damage after being horribly beaten. She also
helped found the Mississippi Freedom Democratic Party in 1964,
which was established to oppose Mississippi’s all-white delegation
to the Democratic National Convention. The civil rights struggle in
Mississippi was brought to national attention by a televised session
at that year’s convention.
Similarly, Delta Sigma Theta member Joyce Barrett joined the
Civil Rights Movement in the early 1960s.180 She was one of the few
white northerners involved. When she was in college, she joined the
Student Nonviolent Coordinating Committee and worked to
promote voting rights. In the spring of 1963, she was jailed in
Albany, Georgia, for handing out voter registration forms. For her
activism and service to the Civil Rights Movement, she was inducted
as an honorary member of Delta Sigma Theta, one of the only white
women to receive such an honor.
Also in 1963, Vivian Malone Jones, along with another Black
student James Hood, matriculated at the University of Alabama,
making them early trailblazers in desegregating the university.181
In 1965, Hamer ran unsuccessfully for Congress the following year. On March 14,
1977, she died of breast cancer. Her tombstone reads “I am sick and tired of being sick
and tired.” This is one of her most famous quotes. She is an honorary member of
Delta Sigma Theta and the recipient of the Mary Church Terrell Award.
180. Joyce Barrett joined the Civil Rights Movement in the early 1960s. As a
white northerner, she was one of a few. When she was in college, she joined the
Student Nonviolent Coordinating Committee and worked to promote voting rights.
In the spring of 1963, she was jailed in Albany, Georgia, for handing out voter
registration forms. For her activism and service to the Civil Rights Movement, she
was inducted as an honorary member of Delta Sigma Theta, one of the only white
women to receive such an honor.
181. Vivian Malone Jones was born on July 15, 1942, in Mobile, Alabama. She
was the oldest of eight children. She has received many awards for her service
including the first Lurleen B. Wallace Award for Courage in 1996. Former Governor
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Jones began her college education at the predominantly Black
Alabama Agricultural and Mechanical (A&M) College. The school
was unaccredited, so Jones applied to the Culverhouse College of
Commerce and Business Administration at the all-white University
of Alabama. Though Brown v. Board of Education had been decided
nearly a decade earlier, the University of Alabama only complied
with the ruling when it was ordered to do so. Even so, Alabama
Governor George Wallace attempted to prevent the two Black
students from entering the school.
He physically stood in the doorway to Foster Auditorium and
proclaimed “Segregation now! Segregation tomorrow! Segregation
forever!” It took a military intervention by President John F.
Kennedy to safely allow the students to enter. The rest of that day
and the next day, Jones and Hood were able to enter the school
without incident. Jones’s experiences at the university ranged from
hostile threats of violence to warm promises of friendship. In 1965,
Jones graduated with honors and became the university’s first Black
student to graduate. The same year, Jones moved to Washington
D.C. to begin a career fighting injustice with the U.S. Justice
Department and its Voter Education Project. Jones and her husband
moved to Atlanta in 1969. She worked as the Director of Civil Rights
and Urban Affairs for the Environmental Protection Agency and also
as the Director of its Environmental Justice program. Later, she
worked as a Personnel Specialist at the Veterans Administration
Hospital, as well as Acting Executive Director of the Voter Education
Project in Atlanta.
Other individual Delta Sigma Theta members also sacrificed
much during the Civil Rights Movement. Myrlie Evers-Williams
married her husband, Medgar, in December of 1951.182 Medgar
George Wallace presented her with the award named for his late wife. Later, they
spoke “of forgiveness.” She received an honorary Doctorate of Humane Letters and
had a scholarship named for her at the University of Alabama. She was a member of
the Delta Delta chapter of Delta Sigma Theta, which she joined at Alabama A&M.
182. Myrlie Evers-Williams was born on March 17, 1933, in Vicksburg, Mississippi.
She was raised by her grandmother, a schoolteacher, and grew up with a love of
learning and music. She went to Alcorn Agricultural & Mechanical College, where she
was initiated into Delta Sigma Theta. She made an unsuccessful bid for Congress in
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309
became the secretary for the NAACP, and Evers-Williams worked
alongside him, fighting to end racial segregation of schools and
other public facilities; they also campaigned for voting rights.
Medgar was shot by white supremacist Byron De La Beckwith on
June 12, 1963, and soon died. Evers-Williams fought for thirty years
to see Beckwith jailed.
She kept the case alive after two all-white juries could not reach
a verdict. In the early 1990s, a multiracial jury convicted him. After
her husband’s death, Evers-Williams moved with her children to
California and continued fighting for civil rights and speaking on
behalf of the NAACP. She made an unsuccessful bid for Congress in
1970. She married Walter Williams in 1976 and continued to serve
her community and work with the NAACP. In 1987, she was
appointed to the Board of Public Works as a Commissioner. She also
joined the board of the NAACP. In 1995, Evers-Williams was elected
chairperson of the NAACP. Board of Directors. Her goal was to help
the organization move past a dark period marked by scandal and
economic problems. She received many honors, including the title of
“Woman of the Year” in Ms. Magazine. She is a member of Delta
Sigma Theta’s Delta Epsilon chapter, which she joined at Alcorn
Agricultural & Mechanical College.
During this same period, Delta Sigma Theta member Marian
Wright Edelman became involved in the Civil Rights Movement,
was arrested for her engagement, and then enrolled at Yale Law
School. In 1963, Edelman earned her J.D. and became the first
woman admitted to the Mississippi Bar.183 She immediately began
1970. She married Walter Williams in 1976 and continued to serve her community and
work with the NAACP. In 1987, she was appointed to the Board of Public Works as a
Commissioner. She also joined the board of the NAACP in 1995; she was elected
chairperson of the NAACP Board of Directors. Her goal was to help the organization
move past a dark period marked by scandal and economic problems.
183. Marian Wright Edelman is an American-born children’s civil rights activist.
She has spent much of her life advocating for the rights of underprivileged children and
in 1973 she founded and became President of the Children’s Defense Fund. Edelman
was born on June 6, 1939, in Bennettsville, South Carolina, where she attended Marlboro
Training High School and went on the Spartan College. Today, Edelman continues to
advocate for youth prenatal care, child-care funding, greater pregnancy prevention, and
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working on civil rights issues with the NAACP Legal Defense and
Educational Fund’s Mississippi office.
Edelman moved to
Washington D.C. in 1968 where she continued working for the Poor
People’s Campaign of Rev. Dr. Martin Luther King, Jr. and the
Southern Christian Leadership Conference.
In 1965, under the leadership of National President Geraldine
Pittman Woods, Delta Sigma Theta co-sponsored the East African
Women’s International Seminar in Nairobi, Kenya.184 Two decades
serves as a member of the Robin Hood Foundation in New York City.
184. DELTA, 1985, at 6; Inspiration and Encouragement, DELTA, 1964, at 42. Geraldine
Pittman Woods was born on January 29, 1921, in West Palm Beach, Florida, to Susie
King Pittman and Oscar Pittman. Woods transferred from a private Episcopal school to
Industrial High School in the fourth grade, where she graduated in 1938. She went on to
attend Talladega College and then transferred to Howard University in 1940 to be closer
to her sick mother. Woods attended Radcliffe College and Harvard University through
a partnership program, where she earned a Master of Science degree in 1943 and a Ph.D.
in Neuro-Embryology in 1945. Dr. Louis Hansborough, a professor at Howard
University, encouraged her to continue studying embryology after graduation. Woods
was elected into Phi Beta Kappa, a national honors society, in 1945. Woods was the
National President of Delta Sigma Theta Sorority from 1963-1967; while she was in
office, Delta Sigma Theta founded the Delta Research and Educational Foundation.
Woods briefly worked as an instructor at Howard University until 1946, when she
took a hiatus to focus on family. She married Robert Woods, a dentistry student at
Meharry Medical School and had three children, Jan, Jerri, and Robert. Woods became
involved in volunteer and community efforts. She served a four-year term on the
Personnel Board of the California Department of Employment starting in 1963, became a
member of the National Institute of General Medical Sciences the following year, and
was the first African-American woman appointed to the National Advisory General
Medical Services Council. The NIGMS appointed her a Special Consultant in 1969.
Woods was invited to help launch Project Head Start with First Lady Johnson and
Delta Sigma Theta. In 1968, President Johnson appointed her Chairman of the Defense
Advisory Committee on Women in the Services. From 1968-1972, she worked as the
Vice Chair of the Community Relations Conference of Southern California. In 1972, two
programs Woods worked on at NIGMS, the Minority Access to Research Careers
Program and the Minority Biomedical Research Support Program, were initiated.
Woods headed Howard University’s Board of Trustees from 1975-1988 and she retired
from the NIH and leadership positions in 1991.
Woods received the Mary Church Terrell Award of Delta Sigma Theta, Scroll of
Merit of the National Medical Association in 1979, Howard University Achievement
Award in 1980, and the Distinguished Leadership Achievement Award from the
National Association for Equal Opportunity in Higher Education in 1987. In 1978,
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311
later, under the leadership of National President Hortense Canady,
international awareness was emphasized as a prominent theme for
chapters to explore. She encouraged members to review their past
work abroad, including: the building and maintenance of a
maternity wing at the Thika Memorial Hospital in Nairobi, support
for Haitian refugees, sending books to libraries and schools in West
African countries to embrace future initiatives, and projects across
the African diaspora.185 The Chapter in Little Rock, Arkansas,
entertained foreign guests for twelve years and joined the Little Rock
International Hospitality Committee in 1964.186 In Detroit, a trip to
Africa by Soror Bernice White led to a book collection project by the
Detroit Alumnae Chapter where the Chapter collected over 1,000
books for donation.187 The St. Louis, Missouri Alumnae Chapter
sponsored an exhibit for its second shipment of articles and hospital
supplies for the Riruta Clinic in Kenya, and the San Francisco,
California Alumnae Chapter sent a contribution of $200 to the Riruta
Woods had the sixth annual NIGMS Minority Biomedical Support symposium at the
Atlanta University Center dedicated to her. Delta Sigma Theta established the Geraldine
P. Woods Sciences Award in 1994. NIGMS unveiled the Geraldine Woods Award at the
2003 Annual Biomedical Research Conference for Minority Students. A fellowship in
biology at Howard University and in chemistry at Atlanta University have been
established in her name and honorary degrees at Benedict College, Talladega College,
Fisk University, Bennett College, Meharry Medical College, and Howard University
have been given to her. Woods died on December 27, 1999, in her Aliso Viejo,
California, home after succumbing to a long illness.
185. DELTA, 1985, at 6. Hortense Golden Canady was born Elizabeth Hortense
Golden on August 18, 1927, in Chicago, Illinois. She enrolled in Fisk University at age
sixteen, where she met her husband, Clinton Canady, Jr. They married on her
eighteenth birthday before his deployment during World War II. They had a daughter,
Alexa, who was the first African-American woman to become a neurosurgeon. She
received a Bachelor of Science degree in Zoology from Fisk University. Later on, she
went back to school to receive her master’s degree in Higher Education from Michigan
State University.
Canady was the National President of Delta Sigma Theta Sorority from 1983-1988.
Canady was a civil rights leader and the first African American elected to the Lansing
Board of Education. She died on October 23, 2010.
186. Toward International Understanding, DELTA, 1962, at 46.
187. Id.
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Clinic.188 The Beta Omega Chapter in El Paso, Texas, corresponded
with a Catholic School in Uganda.189 The Tuskegee, Alabama
Chapter named its international project “Operation Friendship,”
which focuses on helping foreign students at the Tuskegee Institute
adjust to local customs and etiquette.190
During the 1960s, the U.S. Commission on Civil Rights was
created to conduct studies on how federal laws and policies affect
civil rights.
Delta Sigma Theta chapters around the nation
contributed hundreds of witness testimonies by members, all of
whom testified at the studies’ hearings.191 Throughout the 1960s,
Delta Sigma Theta’s regional and annual meetings were dedicated to
informing and rallying members to join different social justice
causes. For example, the 1966 theme “Decisive Action for Freedom
Through Education” was chosen as the regional conference theme to
provide members with “greater insight and sensitivity in the area of
voting, education and the family” to motivate members to face the
challenges before them.192 Conferences provided Delta Sigma Theta
members an opportunity to celebrate accomplishments of chapters,
and to recognize the hard work of individual members throughout
the organization.
Notable leaders and high-ranking officials in civil rights and
government organizations were invited to speak, provide a platform
for their work, and inform members of progress in the movement
and upcoming changes in legislation and public policy. Guests
included leaders from the Urban League, the NAACP, the U.S.
Department of Justice, the Equal Employment Opportunity
Commission, and the Office of Education, as well as members of
Congress. President John F. Kennedy addressed Delta Sigma Theta
members at the Golden Anniversary Luncheon in Washington D.C.,
in 1963. The President congratulated members for their service
stating, “At this anniversary we should look to the past and
188.
189.
190.
191.
192.
Toward International Understanding, supra note 186.
Id.
Id.
Woods, Presidential Address, supra note 174, at 16.
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313
recognize the extraordinary contributions that this sorority has
made, but I think that all of us will say that there’s a great deal left
undone and to the finishing of these tasks we commit ourselves.”193
He specifically congratulated the sorority for raising over $600,000
over the last several years for scholarships.194 Delta Sigma Theta’s
goal for the upcoming year was to raise over $250,000 because the
members recognized that financial resources were absolutely
necessary to reach meaningful goals.195 In 1963, newly elected Delta
Sigma Theta President Geraldine Woods reminded the Delta Sigma
Theta women of their important responsibilities in all movements at
the time. In her remarks, she proclaimed: “Women not only play a
key role in these social movements, but also have ‘vital stakes’ in
them.”196
In 1965, Delta Sigma Theta participated in the Civil Rights
Luncheon.197 Mr. Clarence Mitchell, Director of the NAACP,
acknowledged the organization’s efforts during a speech to the
organization at the Annual Conference. In his speech, Mitchell
quoted: “[T]he victories of 1964 and 1965 [Civil Rights Bills] are
accomplishments for your organization because your representatives
worked for the results.” Mitchell acknowledged Dr. Geraldine
Woods and Marie Barksdale as “consistent and effective as
participants in the Leadership Conference on Civil Rights.”198
However, along with his outstanding reclaim, Mitchell further
challenged the Delta Sigma Theta members to continue working for
the same accomplishments moving forward into 1966.199 “Action for
Freedom” became the main topic of discussion, especially at the 1965
Annual Delta Sigma Theta Meeting.200 To this end, the sorority
193. President John F. Kennedy, Address at the Golden Anniversary Luncheon
(1963).
194. Id.
195. Edith Green, Education, DELTA, at 21.
196. Geraldine Woods, New Directions Emerge, DELTA, 1963, at 11.
197. Civil Rights Luncheon, DELTA, 1965, at 16.
198. Director of the NAACP Clarence Mitchell, Jr., Address at the Civil Rights
Luncheon (1965).
199. Samuel C. Jackson, Public Meeting Address, DELTA, Mar. 1967, at 27.
200. Wiley Branton, Social Action Address, DELTA, Mar. 1967, at 37.
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created the Social Action Committee to give direction in voter
education, civil rights, and education on housing and
employment.201 Additionally, the Culturemobile Project, or “Delta
Teen Lift,” began in June of 1963.202 The purpose of this project was
to broaden the horizons and experiences of young adults by
introducing them to new places and people.203 Thirty “culturally
deprived” junior and high school students traveled by bus from
Atlanta to Washington D.C., while touring other states along the
way.204
During the 1950s, under the leadership of National President
Dorothy Penman Harrison, Delta Sigma Theta created numerous
additional programs to aid African-Americans in their job searches.
Programs like the Parents’ Clinic, the Ninth Grade Clinic, the Search
201. Woods, New Directions Emerge, supra note 196, at 30.
202. Toward Brighter Horizons, DELTA, at 35. Vivian Osborne Marsh played a
crucial role in this project. She was a notable activist and government official and
was one of the most prominent African-American leaders in San Francisco,
California. Marsh was born in Houston, Texas, on September 5, 1897. After
growing up in Texas, Marsh applied to the University of California, Berkeley where
she was required to take multiple entrance exams due to her southern education.
Because she scored so highly on each exam, Marsh was admitted to the university
and also helped discontinue this discriminatory policy. During her time at
Berkeley, Marsh founded the Kappa chapter of Delta Sigma Theta sorority, in which
she served as president and then continued founding Delta Sigma Theta chapters on
several other campuses. Marsh received both an undergraduate and master’s
degree from UC Berkeley in anthropology, becoming one of the first AfricanAmerican women to receive this degree.
In her early adulthood, Marsh built two successful organizations, the
Traveling Library, which brought books to rural Georgia, and Teen Lift, which gave
underprivileged teenagers opportunities to attend events like concerts and
museums. Marsh was president of the California State Association of Colored
Women and she participated in the National Council of Negro Women where she
oversaw the National Youth Administration, helping young adults find
employment during the Great Depression. Marsh was a Republican and ran for City
Council in 1959 but did not win. This defeat did not deter her passion for activism
and community involvement. In 1982 the Mayor of Berkeley declared February 21
to be Vivian Osborne Marsh Day. In 1986, Marsh suffered a stroke and passed away
at the age of 89.
203. Toward Brighter Horizons, supra note 202, at 35.
204. Id.
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315
for Future Scientists, and the Conference of Counselors all worked to
promote job growth and knowledge growth for their respective
audiences.205 The Parents’ Clinic was a program where Delta Sigma
Theta members would meet with local ninth-graders and their
parents in an effort to create positive attitudes with parents, which
studies show lead to positive results for the child.206 The NinthGrade Clinics were job clinics that showed teenagers job possibilities
in an attempt to motivate them toward one profession and
encourage the development of goals.207 The Search for Future
Scientists was a testing program run by Delta Sigma Theta to find
future Black American scientists.208 The Conference for Counselors
was a Delta Sigma Theta program where local chapters would invite
counselors of all races to meet together to put stereotypes to rest.209
In 1958, Delta Sigma Theta held a conference in Shreveport,
Louisiana, for homeroom teachers from the surrounding areas and
205. GIDDINGS, supra note 3, at 246. Dorothy Penman Harrison was born
Dorothy Marie Penman on December 8, 1907, in Portsmouth, Ohio, as the daughter
of a teacher, Annabelle Layne, and chef, Victor Logan Penman. She graduated from
high school in 1924 and then studied history at Fisk University. She graduated from
Ohio State University in 1932 with a degree in education. Harrison joined the
Epsilon chapter of Delta Sigma Theta and was the National President of Delta Sigma
Theta Sorority from 1956-1958 and then Treasurer.
She married Gerald Lamar Harrison, president of the Colored Agricultural and
Normal University (now Langston University) in 1940. He earned his Ph.D. in
Education from Ohio State University in 1936 while serving as head of the
Education Department at Prairie View A&M College. In 1948, her eldest son,
Gerald, died at age thirteen in a car accident and her second son, Richard died of an
asthma attack at the same age in 1950. Her husband died in 1986.
She returned to Ohio to work as a teacher following her parents’ death in 1926.
She served as a board member for a range of organizations including Chicago
Metropolitan YMCA, Central Review Team, Chicago Urban League, and Art
Institute of Chicago. She is a life member of the NAACP and the National Council
of Negro Women. She was selected as co-chair of the federal Head Start program in
1965 and was awarded an honorary doctorate from Langston University in 2003.
Harrison died on Wednesday, December 22, 2010, in Flossmoor, Illinois, after
suffering from a brief illness.
207. Id.
208. Id.
209. Id.
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trained them to better counsel their students and contribute to their
future development.210 Troubled by the low numbers of people of
color employed in government positions, Delta Sigma Theta lobbied
federal agencies to evaluate their hiring and promotion practices.
For example, Delta Sigma Theta sent a resolution to the State
Department to call for an end to “the restriction of ambassador
appointments to one or two persons of color … [and] called upon
them to appoint distinguished and competent American Negroes to
their Boards and to top staff positions.”211
College-aged members participated in a range of community
service activities during the 1960s in addition to civil rights activities.
Traditional forms of service were common and encouraged to
maintain community ties and assist those who had immediate needs.
For example, in the early 1960s, the Epsilon Theta chapter
volunteered to provide recreational activities for patients at the
Community Hospital, King’s Daughters Hospital, and Norfolk
General Cerebral Palsy, Inc. Volunteerism and community service
are foundational to sorority life and provide alternative images of
Blacks as college-educated, civically engaged citizens. Alumnae
chapters in particular provide their members, and by extension their
communities, with technical and professional expertise, monies, and
networks that few organizations can offer. Delta Sigma Theta was
invited by the Johnson Administration to meet at the White House to
learn about the Headstart Initiative and consider taking a lead in the
program. The Headstart Program was designed to provide underprivileged preschoolers with mentors who could help direct them
down more successful paths.212 Seven Delta Sigma Theta chapters
were successful in securing federal grants to support Headstart
programs in their communities as part of the initial launch of the
program.213
During the 1950s and 1960s, Delta Sigma Theta began to branch
out and support a wider variety of programs. In Oklahoma, Delta
210.
211.
212.
213.
Id. at 54.
Project Headstart, DELTA, 1967, at 67.
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317
Sigma Theta provided a daycare for single mothers who needed the
help.214 In Baltimore, Delta Sigma Theta began a counseling
program for unwed mothers—a program ahead of its time.215 Delta
Sigma Theta also established a mentoring program called “Teen
Lift,” in the early 1960s under the guidance of Jeanne Noble. The
program was designed to take young southern African Americans
with little resources and move them to a new city, such as St. Louis,
Detroit, or Los Angeles. Once moved, Delta Sigma Theta members
in the city would then mentor the young students and ensure they
continued along an appropriate path.216 Sorority member Vivian
Washington became concerned with the plight of the adolescent,
unwed mother when forty-four girls withdrew from school due to
pregnancy all within one school year.217 The Baltimore Alumnae
Chapter sponsored a project that gave services to these young girls,
as well as researched what information and services were needed to
help combat this issue.218 The results of the project showed that
services were needed for unwed mothers, especially services that
would go to the mother.219 The project also found that there was a
need for a continued education program for mothers during
pregnancy and post-birth.220
Improved coordination between
already existing services and resources was needed as well.221
Furthermore, the project found that a service was needed to help
improve family relationships so parents would teach their children
proper sex education.222
The Los Angeles Alumnae Chapter created Project DRIC (Delta
Reading Improvement Class) for elementary school students.223 This
project was created to improve the reading skills of third and fourth
214.
215.
216.
217.
218.
219.
220.
221.
222.
223.
Id.
Id. at 257.
The Adolescent Unwed Mother – Baltimore Alumnae, DELTA, 1963, at 21.
Id.
Id. at 22.
Id.
Id.
Id.
Geraldine Woods, Project DRIC – Los Angeles Alumnae, DELTA, 1964, at 21.
318
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[Vol. XIII
graders and consisted of three eight-week sessions that were staffed
by sorority members.224 The members of the St. Louis Alumnae
Chapter sponsored a Charity Ball for Mental Health that was well
supported by the community.225 The funds were used to sponsor a
craft arts workshop for the patients.226 The Delta Pi Chapter of the
sorority launched a new project to help improve the grade point
averages of on-campus students.227 This project was called Operate
Doe and used a series of study-ins. Dedicated staff and sorority
members helped raise students’ grade point averages.228 The
members wished to show that making a “concentrated effort” would
bring about higher grade point averages.229
In the years following, Delta Sigma Theta launched programs
designed to serve the community. In 1966, Delta Sigma Theta
launched the College Application program, which covered the costs
in full or in part for students to apply to college.230 The Application
program aimed to overcome the inequality of educational
opportunities that economically deprived students faced.231 Along
with the College Application Program, Delta Sigma Theta formed a
Social Action Commission in 1968.232 Additionally, Delta Sigma
Theta launched a National Program on Womanpower in the World
of Work in 1969, which aimed to spread career options and motivate
women to pursue careers.233
224. Woods, Project DRIC, supra note 223, at 21.
225. Geraldine Woods, A Charity Ball for Mental Health – St. Louis Alumnae, DELTA,
1964, at 21.
226. Id.
227. Geraldine Woods, Delta Pi Launches Operation Doe, DELTA, 1965, at 63.
228. Id.
229. Id.
230. Eugene L. Baum, Delta Sponsors College Test and Application Fees for Students
of Low Income Families, DELTA, 1967, at 66.
231. Id.
233. Id.
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319
III. 1970s-1990s: Balancing Interests
Moving into the 1970s, Delta Sigma Theta became involved in
the Black Power Movement by tailoring some of its new endeavors
and activities to the needs of the blossoming movement.234 Delta
Sigma Theta also began chastising the Nixon Administration for
reversing positions on its initial policies; members often wrote to
urge the administration to change its position.235 During the 1970s,
there was an expansion of civil rights work focused on various ways
to address areas in which Black communities were underserved
including health care awareness, mental health services, and training
for Black health professions.236 Delta Sigma Theta members realized
it was necessary to hone leadership skills to carry on the group’s
work in a quickly changing world. The organization quickly
expanded into new areas of service and the South to strengthen
connections with other civil rights agencies and government offices.
Delta Sigma Theta created the Leadership Training Laboratories
so that “persons carrying a leadership role would be fortified with
the skills needed to advance the business of Delta.”237 The
Leadership Training Laboratories were to be completed in two
phases during this era as a “process to undergird the decision
making, the planning, the freedom and the on-going leadership, [to]
develop the framework of a moving organization.”238 Establishing
leadership training was vital for the health of local chapters as
internal relations and community work became increasingly
complex. Frankie Muse Freeman, the 14th National President—as
well as a civil rights lawyer, activist, and the first female member of
the U.S. Commission on Civil Rights—encouraged members to give
not only their money, but also their expertise, time, and networks to
aid multiple causes for civil rights.239
234.
235.
236.
237.
238.
239.
Id. at 282.
Mona Bailey, President Speaks, DELTA, Dec. 1979, at 3.
DELTA, 1979, at 6.
Id.
Frankie Freeman, A Summary of the President’s Address, 31ST NATIONAL CONVEN-
320
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[Vol. XIII
Lillian P. Benbow, the 15th National President, in her address to
the membership urged her sisters to reflect on “Delta Priorities” and
encouraged members to use “moral excellence” as a guide for their
actions against injustice, oppression, and all human suffering.240 As
necessary changes were slowly realized within the political system,
vast inequality in health care, education, housing, and employment
continued. Delta Sigma Theta members attempted to address the
TION OF DELTA SIGMA THETA, 1971, at 34.
Frankie Muse Freeman was born on November
24, 1916, in Danville, Virginia. Both parents, Maude Beatrice Smith Muse and William
Brown Muse, came from college-educated families. Freeman herself attended
Westmoreland School and learned how to play the piano. At the age of sixteen, she
enrolled into her mother’s alma mater, Hampton Institute, which she attended from
1933 through 1936. While in New York, Freeman met and married Shelby T. Freeman.
In 1944 she was admitted to Howard University School of Law and graduated second in
her class in 1947. After not hearing back from graduate schools in 1949, Freeman
decided to open up her own law firm in Jackson Bank Building engaging in civil rights
issues.
Freeman was the lead attorney in the landmark NAACP case Davis et al v. the St.
Louis Housing Authority, which fought for no racial discrimination when it came to public
housing in St. Louis. Then in 1958, she became a charter member of the Missouri
advisory committee to the U.S. Commission on Civil Rights. In 1964 she was appointed
as the first female member of the U.S Commission on Civil Rights by President Lyndon
Johnson and served the position for sixteen years. Freeman continued to work in the
government as the Inspector General for the community services administration during
the Carter administration. Once Reagan came into office, Freeman returned to St. Louis
and worked as a municipal court judge. Freeman has won many accolades such as
being inducted into the National Bar Association’s Hall of Fame in 1990, serving as the
founder of the Citizen’s Commission on Civil Rights, founded in 1982, being honored
with a place on the International Civil Rights Walk of Fame at the Martin Luther King Jr.
National Historic Site in Atlanta in 2007, and on February 5, 2015, President Obama
appointed her to serve as a member of the Commission on Presidential Scholars. At the
age of ninety-nine, she is still practicing law with Montgomery Holie Associates in St.
Louis.
240. Lillian Pierce Benbow, Delta Priorities: Address by Lillian P. Benbow 15th
National President (31st National Convention of Delta Sigma Theta), DELTA, 1971, at
62. Lillian Pierce Benbow was the National President of Delta Sigma Theta Sorority
from 1971-1975. She served as the Assistant Director of Housing Programs for the
Michigan Civil Rights Commission; and she implemented the Delta Arts and Letters
program. Lillian Pierce Benbow (Omega Omega Chapter): 15th National President (19711975), Legacy of National Leadership, DELTA SIGMA THETA, http://www.deltasigmathe
ta.org/centennial/ (last visited Apr. 15, 2016).
Summer 2016]
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321
needs of their community on those issues. By the end of the 1970s,
Delta Sigma Theta secured a reputation as a powerful ally for social
justice among civil rights groups. In later decades, Delta Sigma
Theta members employed new strategies to increase political
participation and raise awareness.
Women’s rights and support for Black families were always a
concern for Delta Sigma Theta members, which was reflected in the
increasing intersectional nature of their civil rights work. For
example, beginning in the 1980s, Delta Sigma Theta worked with
around 100 attorneys to distribute a pamphlet entitled “Know Your
Rights,” which informed single mothers of their rights against their
children’s fathers and the state.241 In 1984, under the leadership of
Hortense Canady, the sorority announced a call for participation in
“Summit II—A Call to Action in Support of Black Single Mothers” in
Washington D.C., to create a set of recommendations and actionable
items for members to address challenges faced by black women.
More than fifty graduate and undergraduate chapters across thirtyeight cities participated in the event. Participants included churches,
legislators, government agencies, nonprofits, as well as sorority and
fraternity members.
In 1971, Delta Sigma Theta members received $45,000 in
funding from the National Urban Coalition to conduct a Public
Information Program on Health Careers and Training for Minority
Youth. The project operated in cities discussing the availability of
health careers in an effort to influence educators and broaden their
awareness of health care as a reasonable career field.242 Two years
later, at its 32nd National Convention in 1973, Delta Sigma Theta
adopted a resolution setting out its beliefs that a woman is entitled
to choose abortion and that no one should deprive a woman of that
decision.243 Delta Sigma Theta funded a socioeconomic development
program in rural areas of Green County, Alabama, in 1972.244
241.
242.
243.
244.
Corporate Report, DELTA, 1964, at 42.
DST is Pro- Choice, DELTA, Winter 1990, at 19.
Corporate Report, DELTA, 1979.
322
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[Vol. XIII
In 1971, the Nixon Administration appointed Delta Sigma Theta
as the lead organization to carry out a rehabilitation program for
female law offenders.245 Delta Sigma Theta received a $500,000 grant
from the Department of Justice for its co-sponsorship on a program
designed to rehabilitate women who were victims of abuse.246
During that year, the organization also established a grant for
students pursuing law degrees called the “Sadie T.M. Alexander
Grant.”247 During the following years, Delta Sigma Theta funded an
Alabama socioeconomic program created to help youth in poor rural
areas and implemented the “Right-to-Read Project,” which helped
functionally illiterate people learn how to read.248
On the
international front, the first Delta Sigma Theta chapter in the Virgin
Islands was established in 1973 in St. Croix.249 Across the nation and
throughout the Virgin Islands and West Germany, Delta Sigma
Theta members mounted high-level action projects focusing on their
Five-Point Program, the arts, and social and political action.250
In 1973, the Baltimore Alumnae Chapter was recognized for
receiving funds from the U.S. Department of Health, Education, and
Welfare in the amount of $88,253 to help improve race relations in
two local elementary schools and advance children’s classroom
work.251
Delta Sigma Theta’s “Right-to-Read Project” was a
nationally coordinated effort supported by volunteers.252 Many
alumnae chapters have supported historically Black colleges and
universities through funding and sponsorship of faculty. In 1977,
the Tuskegee Institute was the inaugural recipient of the
Distinguished Chair grant from Delta Sigma Theta.253 Delta Sigma
247. Id. at 40.
248. Id.
249. Id.
250. Corporate Report: “I Will Not Shrink from Undertaking,” 50 DELTA, no.7, 1964, at 7.
251. Lillian P. Benbow, Baltimore Alumnae Awarded $88,000 for Special School Project,
DELTA, 1973, at 60.
252. Lillian P. Benbow, Delta Implements Right-to-Read Project (reprint from 1943
30th Anniversary Issue), DELTA, 1973, at 48.
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323
Theta has a long lasting partnership with the United Negro College
Fund (UNCF). Houston Alumnae chapter adopted the UNCF and
supported it through the local projects Committee.254
A major philanthropic and educational work of Delta Sigma
Theta, featured in 1976 under National President Thelma Thomas
Daley’s term, was the production and financing of the film
Countdown at Kusini.255 The film starred all Black actors, was shot on
location in Nigeria, and was one of the first major films produced by
an all African-American team. The film was designed to raise
money for the sorority and its causes, but also raise awareness of
African-American art, culture, and theatrical abilities. Sorority
members who donated personal funds to the production largely
financed the film. Delta Sigma Theta believed that the film could
address a variety of issues including the “media’s treatment of
Blacks, and by extension, repair their social image, [. . .and] improve
the public profile of Black sororities and fraternities that seemed to
254. The Action Is…, DELTA, Apr. 1979, at 7.
255. Robin Means Coleman, The Making and Demise of Countdown at Kusini, in BLACK
GREEK LETTER ORGANIZATIONS 2.0: NEW DIRECTIONS IN THE STUDY OF AFRICAN AMERICAN
FRATERNITIES AND SORORITIES 181, 182 (M. W. Hughley & G. S. Parks eds., 2011). Thelma
Thomas Daley was born on June 17th in Annapolis, Maryland. She attended Bowie State
University and graduated at nineteen with her B.S. degree. She earned her M.A. in
Counseling and Personal Administration from New York University. She received her
Ed.D. in Counseling from George Washington University. She and her husband, Guilbert,
live in Maryland. Daley was the National President of Delta Sigma Theta Sorority from
1975-1979 as well as National treasurer from 1963-1967. She has served as President of four
national organizations, including the American Counseling Association. As National
President, she established the Distinguished Professor Endowed Chair.
She served as the Coordinator for Guidance and Counseling Services at Baltimore
County Board of Education as well as a visiting professor at North Central Western
Maryland College, University of Wisconsin and Harvard University. She also served as
National President of the American School Counseling Association from 1971-1972 and
President of the American Personnel & Guidance Association from 1975-1976. She has
been active with the United Negro College Fund, National Director of WIN, the Women in
the NAACP, and promotes knowledge of Sudden Infant Death Syndrome and AIDS
prevention within the African-American Community. Daley became the first woman to
chair the National Advisory Council on Career Education; she also appeared in Who’s Who
Among Black Americans and has served on the Board of Directors of the National Testing
Service.
324
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[Vol. XIII
only generate press attention during hazing scandals.”256 Delta
Sigma Theta members in arts and media, including Lena Horne,
Nikki Giovanni, Ruby Dee, Roberta Flack, and Charlayne Hunter
Gault lent their expertise to the project.257
Members were used in more conventional forms of
philanthropy and community service, such as donating time to
hospitals and funding bookmobiles. Entering into the world of
filmmaking was a bold step for Delta Sigma Theta. Despite high
expectations and noble efforts of sorority members, the film fell
short in its delivery to usher in a new era of film making by and for
African Americans. Ultimately the film was a failure due to poor
distribution, poor ratings, long and expensive production, and
uneven marketing from mainstream studios who were unsure how
to sell the film. However, the film did raise a decent amount of
money for numerous chapters and helped provide countless
scholarships to incoming Delta Sigma Theta members.258 The film
provided Delta Sigma Theta a new platform to fulfill “its fostering
mission of educational and political engagement, economic
empowerment, and self-sufficiency.”259
During this era, Delta Sigma Theta also established two new
projects—the Delta Education and Research Foundation (DREF) and
the Black Diaspora Project. The DREF was created to raise money
toward research and education projects for Black female scholars.260
The Black Diaspora Project was created to promote awareness and
education on study, international travel, and an awareness of
African culture.261 Delta Sigma Theta members pursued these goals
through different strategies, including sponsoring international
travel for education, raising awareness and philanthropic work, and
fundraising to support local and international causes with donation
of time, funding, and expertise.
256.
257.
258.
259.
260.
261.
Coleman, supra note 255, at 181, 182.
Id.
Coleman, supra note 255, at 181, 187.
Id.
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325
Beginning in the late 1970s, Dorothy Stanley and Constance
Clayton created the concept of Delta Sigma Theta houses across the
nation called “Life Development Centers.”262 The houses became
community centers that provided public services to anyone who
needed them. Houses were implemented in Durham, North
Carolina, and Houston, Texas. The houses were very successful and
served as the center for many of Delta Sigma Theta’s programs
throughout the community.263 In 1979, a year of transition from
National President Thelma Thomas Dailey to National President
Mona Humphries Bailey, Delta Sigma Theta also sponsored the
creation of the Delta Towers in Washington D.C.—two towers
created to house elderly and handicapped individuals in a safe and
nurturing environment.264 The Delta Housing Corporation was
263. Id. at 295.
264. Id. Mona Humphries Bailey received a B.S. in Chemistry from Florida A&M
University in 1954 and was elected Miss Florida A&M University in her senior year.
She earned her Master’s of Science in Science Education from Oregon State University
and pursued her Ph.D. in Educational Administration at the University of
Washington. Bailey was the National President of Delta Sigma Theta Sorority from
1979-1983. Bailey serves as President of the Delta Research and Educational
Foundation and was honored at the Sorority’s 40th National Convention in 1990 with
the Mary Church Terrell Award. Bailey married William Peter Bailey; they have two
sons, Major Peter Govan Bailey, United States Air Forces, and Christopher Evans
Bailey, Founder and CEO of Mindseekers. They also have twin grandsons, Tre and
Taylor.
Bailey served as Assistant State Superintendent of Public Instruction for the State
of Washington from 1974-1986, District’s Assistant Superintendent from 1986-1990,
Deputy Superintendent of Seattle Public Schools from 1990-94, Director of the
National Faculty’s Western Region from 1995-1998, Head of Forest Ridge School of
Sacred Heart from 1998-2000. Prior to all of this, she has also served in various
positions in the Seattle School District including Middle School Principal, Personnel
Administrator, High School Counselor and Science Teacher as well as teaching
courses at the University of Washington and Seattle University.
Bailey serves as a Senior Associate with the Center for Educational Renewal at the
University of Washington and the Institute for Educational Inquiry. Id. She also
serves as Chair of the State Board for the Washington MESA Program and is a
member of the following boards: Delta Research and Educational Foundation, Delta
Sigma Theta Sorority, Inc., The National Network of Sacred Heart Schools, and the
Forest Ridge School; she is also an Associate of the Pacific Science Center Foundation.
326
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[Vol. XIII
funded by a $5-million grant from the Housing and Urban
Development Agency in 1977. Land was secured to build the
property in a transitional area near Capitol Hill, and the apartments
were earmarked as Section 8 housing to guarantee a low-income
option for residents in the D.C. area.265
After the Delta Executive Board Session in 1976, national
officers reached out to Chapters to share what they absorbed from a
newly designed leadership program that they attended.266 By 1977,
590 Chapters had undergone an Executive Training Lab. In 1978,
Delta Sigma Theta co-sponsored both the National Conference on
Educational Issues that Impact the Black Community and a service
of exhibitions of African Contemporary Art with Howard
University.267 Also in 1978, Delta Sigma Theta’s Grand Chapter
contributed $1,500 to a reading shelf in the library of the Hubert
Humphrey Institute of Public Affairs.268 The shelf held books
explaining the role of women in the Civil Rights Movement of the
1960s. Over the course of the following year, Delta Sigma Theta was
also given a grant from the Department of Health, Education, and
Welfare worth $134,230. The grant was awarded to administer and
conduct Delta Sigma Theta’s “Educational Equity Training and Self-
Her previous public service include serving on the National Board of TransAfrica; the
Mary McLeod Bethune Memorial Museum Foundation; The American Civil Liberties
Union National Advisory Committee; Washington State Vendor Rates Advisory
Committee; the Washington State Crime and Delinquency Board; Seattle’s University
Preparatory Academy Board of Trustees; Women + Business Board of Directors;
Pacific Science Center Board of Trustees; the City of Seattle Advisory Committee for
the African American Heritage Museum; Board of Directors for the Washington
Special Olympics; In Roads of Puget Sound; Mothers Against Violence; The
Northwest Regional Laboratory’s Advisory Committee on the Education Profession
and Improving the Outcome of Schooling; and the Pacific Science Center Foundation
Advisory Committee.
265. Washington D.C. Alumane Receives $5 Million HUD Grant to Build Delta Towers,
DELTA, Summer 1979, at 8.
266. DELTA, Dec. 1979, at 44.
267. Id. at 44.
268. Id. at 10.
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327
Awareness” project aimed at conquering sex-based stereotypes and
promote equity for women.269
At the highest echelon of the federal government, Delta Sigma
Theta members were working to ensure equal access to justice for
all. Because of such early success, in 1977, President Jimmy Carter
named Mary Frances Berry Assistant Secretary for Education in the
Department of Health, Education, and Welfare.270 Although she left
this position in 1980 to return to Howard University as a professor,
President Carter appointed Berry to the U.S. Civil Rights
Commission in 1980. During Berry’s tenure on the committee,
President Ronald Regan, Carter’s successor, attempted to remove
her from the board due to conflicting opinions. However, she
successfully fought in court to keep her seat.
Although Delta Sigma Theta was concerned about people’s
physical health, the organization also dedicated its efforts to mental
health. Programs included seminars on stress in the home and work
environment, child abuse, battered women, and working with the
mentally retarded and juveniles.271 In 1978, the chapter’s Annual
Report detailing Delta Sigma Theta Programs, community service,
educational development, mental health, housing and urban
development, and economic development were listed as the
chapter’s most influential programs respectively.272 Furthermore,
Delta Sigma Theta sponsored a program aimed to recruit dropouts
269. DELTA, Dec. 1979, at 13.
270. Id. at 11. Mary Frances Berry, born on February 17, 1938, is a Professor of
History and the Geraldine R. Segal Professor of American Social Thought at the
University of Pennsylvania. Berry was born in Nashville, Tennessee, to parents’
George and Frances Berry but was temporarily placed in an orphanage due to
economic hardship. Throughout her youth, Berry attended one of Nashville’s
segregated schools but went on to attend Howard University where she earned her
undergraduate degree. Berry furthered her education at the University of Michigan
earning a J.D. and Ph.D. in History. Berry has had a decorated career working in
education. In her early adult years, Berry worked at the University of Maryland,
becoming the Interim Provost of the Division of Behavioral Social Sciences. She
went on to become the Chancellor of the University of Colorado, Boulder, as the
first Black women to lead a major research university.
271. Id. at 13.
272. Id.
328
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[Vol. XIII
in school as models with the direct Search for Talent Program. The
program’s main goal is to motivate and place those children into
post-secondary programs compatible with their interests and
abilities.273
Wanting to expand its services and reach more of the
population, Delta Sigma Theta aimed to form coalitions and team up
with other organizations to yield better results for its efforts. By
1978, eighty-seven percent of Delta Sigma Theta chapters pledged
life-membership in the NAACP and seventy-six percent of Delta
Sigma Theta chapters contributed annually to other political and/or
service organizations.274 Delta Sigma Theta’s educational programs
focused their efforts around competency-based testing, test-taking
techniques, career awareness and development, and the
fundamentals of reading.275 Grand Chapter and local chapters
contributed more than $500 in annual college scholarships.276
The 1978 Corporate Report also indicated that the bulk of Delta
Sigma Theta programs were also focused on encouraging and
supporting their sisters and minorities in their campaigns for
political office. Throughout the years, Delta Sigma Theta followed
legislation affecting Blacks closely and wrote letters and raised funds
to support the Equal Rights Amendment and political leaders in
prison.277 Delta Sigma Theta educational programs also assisted
foreign students in mastering the English language.278 In 1979, Delta
Sigma Theta chapters participated in the United Negro College
Fund’s annual “Parade of Stars” to raise funds for continued
functioning of Black colleges and universities.279
Delta Sigma Theta’s housing and urban development program
efforts extended to funding renovations and construction of new
housing and to promoting energy conservation methods.280
273.
274.
275.
276.
277.
278.
279.
280.
$192,000 to Educational Talent Search Program, DELTA, 1986, at 21.
DELTA, Dec. 1979, at 7.
Id. at 9.
Id. at 10.
Id. at 7.
Id. at 9.
The Action Is…, DELTA, Apr. 1979, at 7.
Id. at 9.
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329
Although there was a slight decline in interest from previous years,
fifty-eight percent of the Delta Sigma Theta chapters reported
sponsoring an activity that addressed the issue of unemployment in
society. These efforts included promoting women in business.281
Examples of some of the Delta Sigma Theta programs included but
are not limited to the following:
(1) C is for Communication: an effort to educate
the community on various aspects of the media
(2) Child search: a search to locate handicapped
children
(3) United Negro College Fund Roadblock:
roadblocks at major intersections in an effort to
collect funds for UNCF
(4) Multi-Ethnic Cultural Library: a project
designed to foster better understanding among
the races
(5) Cherish the Children: designed to prevent child
abuse
(6) IYC: workshop series designed to alleviate the
many problems faced by children
(7) Housing Rehabilitation: a project in conjunction
with HUD to revitalize a predominately Black,
low-income neighborhood in South Carolina
City.282
Delta Sigma Theta’s Project Committee, Social Action
Committee, and General Corporate teamed up to promote Life
Development Centers (LDC) for Delta Sigma Theta programming.
These programs were created to maximize community access by
bringing together all of a chapter’s programs.283 On July 1, 1979,
Delta Sigma Theta received new $450,504 in funding to operate an
281. The Action Is…, DELTA, Apr. 1979, at 9.
282. Id. at 10.
283. Id. at 11.
330
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[Vol. XIII
Educational Opportunity Center.284 The center was organized to
provide educational services and career opportunities for lowincome and disadvantaged youth and adults in Baltimore.285 In that
same year, the Delta Housing Corporation of the District of
Columbia received a $5-million grant to develop a Housing Program
in Washington D.C.286
In 1979, the Detroit Alumnae Chapter paid a tribute to Rosa
Parks with a collection by the world-renowned artist Paul Collins.287
In the same year, Soror Lynnette Taylor represented Delta Sigma
Theta at the Leadership Conference on Civil Rights, the most
broadly based civil rights coalition in the nation.288 By 1978, the
Corporate Report indicated that Delta Sigma Theta focused most of
its interests on educational programs with social action programs
being a close second.289 Other programs of interest included
activities for senior citizens, volunteer work for the Y.M.C.A., and
the Girl Scouts.290 Delta Sigma Theta’s dedication to health planning
also continued as they fought to decrease health problems through
volunteer work at Red Cross Blood Drives and at Sickle Cell and
Hypertension screenings.291 Along with volunteer work, Delta Sigma
Theta also focused efforts on alerting and spreading awareness of
the health problems spreading throughout the Black population.292
Roughly fifty percent of Delta Sigma Theta chapters worked with
Sickle Cell Anemia programs and Cancer Treatment and Detection
programs in 1978.293
In 1986, Delta Sigma Theta was supported by the National
Urban Coalition to organize a year-long program dedicated to
educating the public about health careers and to training for the
284.
285.
286.
287.
288.
289.
290.
291.
292.
293.
The Action Is…, DELTA, Apr. 1979, at 13.
Id.
DELTA, Dec. 1979, at 44.
News, DELTA, Summer 1979, at 17.
The Leadership Conference on Civil Rights, DELTA, Jan.-Feb. 1979, at 11.
Bailey, supra note 274, at 7.
Id.
Id.
Id.
Id.
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331
poor and young minority.294 During Fall 1989, under the leadership
of National President Yvonne Kennedy, Delta Sigma Theta launched
“SCHOOL AMERICAN,” a nation-wide program helping families
learn how to read.295 The program aimed to register over one million
readers who pledged to read to a child under the age of ten-yearsold every week throughout 1990.296
Delta Sigma Theta’s international program aimed for peak
activity during the 1986 to 1987 year by placing emphasis on the
African Diaspora.297 The Winter 1986 publication of The Delta
advertised its International Women’s Conference, which took place
the week of June 23rd in 1987. At that conference, members
participated in workshops at the Non-Governmental Organization
Forum in Nairobi, Kenya, and learned an overview of the
international dimensions in the society.298 During this year, Delta
Sigma Theta also participated in planning sessions for the
International Decade for Women and the Global Aspects of Single
Female Heads Households, for which they received outstanding
public acclaim.299 In 1989, Delta Sigma Theta joined NAACP in a
march that resembled the famous Silent March of 1917. The theme
of the march was “No Retreat on Civil Rights” and was a result of
the Supreme Court’s decision on affirmative action and minority setaside decisions.300
294. National Urban Coalition Funds Delta Sigma Theta’s Health Careers Program,
DELTA, Winter 1986, at 21.
295. Delta Sigma Theta Sorority is “Taking the Lead Helping Families to Read,” DELTA,
Winter 1990, at 3. Yvonne Kennedy was born on January 8, 1945 to Leroy and Thelma
Kennedy. She attended Bishop State Community College and the University of
Alabama. Kennedy was the National President of Delta Sigma Theta Sorority from
1988-1992. She became president of Bishop State Community College in 1981 and
resigned in 2007. Kennedy also represented Mobile, Alabama, in the Alabama House
of Representatives in 1979. She died on December 8, 2012 at the UAB Hospital in
Birmingham, Alabama.
296. Id.
297. The Delta Sigma Theta International Women’s Conference, DELTA, Winter 1986, at 49.
298. Hortense Canady, President’s Message, DELTA, Winter 1986, at 3.
299. Id.
300. Delta Joins NAACP in Silent March, DELTA, Winter 1990, at 15.
332
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Moreover, in the 1990 Winter Journal of The Delta, the Delta
Sigma Theta Research Educational Foundation advertised for a
study tour that consisted of a thirteen-day tour of Brazil to explore
the historical and cultural impact of Black Africans, and seek
knowledge and understanding of a foreign culture.301 By 1997, the
sorority had founded The Delta Research and Educational
Foundation’s Center for Research on African American Women,
under National President Marcia L. Fudge’s leadership.302 The
Center is the “first-of-its-kind repository of information about the
social and economic characteristics of African American women.”303
This work by the sorority in the 1990s is punctuated by the work
of many of its individual members. For example, for over two
decades, Melanie L. Campbell has fought for social justice on behalf
of African Americans. As the CEO and Executive Director of the
National Coalition of Black Civic Participation, Campbell has
worked to make voting and civic contribution a national reality.304
She convened the Black Women’s Roundtable Public Policy Network
301. Delta Research and Education Foundation Study Tour, DELTA, Winter 1990, at 13.
302. DELTA RES. & EDUC. FOUND., http://www.deltafoundation.net/about-us (last visited Apr. 13, 2016). Marcia L. Fudge was born on October 29, 1952, in Cleveland, Ohio.
She is a 1971 graduate of Shaker Heights High School and earned a Bachelor of Science
degree in business from Ohio State University in 1975. She earned a law degree from
Cleveland-Marshall College of Law in 1983.
Fudge was the National President of Delta Sigma Theta Sorority from 1996-2000.
She is a co-chair of Delta Sigma Theta’s National Social Action Committee. Fudge
worked as a law clerk, studied legal research, and worked in the Cuyahoga County
Prosecutor’s Office. She also worked as an auditor for the Estate Tax Department, an
occasional visiting judge, and as the Chief Referee for Arbitration.
Fudge was the Mayor of Warrensville Heights from January 2000 to November
18, 2008. She served as the Chief of Staff to 11th District Congresswoman, Stephanie
Tubbs Jones during Jones’ first term; she has also served on the Board of Trustees
for the Cleveland Public Library. She is currently the U.S. Representative for Ohio’s
11th congressional district since 2008. She was also the Chairwoman of the
Congressional Black Caucus in the 113th Congress.
303. DELTA RES. & EDUC. FOUND., supra note 302.
304. Melanie L. Campbell was born in Mims, Florida in August 1979. While
earning an undergraduate degree from Clark University, Campbell joined Delta Sigma
Theta sorority. She then went on to become certified in nonprofit management by the
Georgetown University Public Policy Institute Executive Program.
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333
where she brought together women of all races, ethnicities, and
backgrounds to support and advocate for women’s rights policies.
A few other projects Campbell has collaborated on have included
the Unity Voter Empowerment Campaign, Unity Diaspora Coalition
Census 2010 Campaign, the ReBuild Hope NOW coalition to aid
Hurricane Katrina survivors, and Black Youth Vote, one of her most
renowned achievements in which she received the Congressional
Black Caucus Foundation’s Emerging Leaders Legacy award.
Campbell works endlessly building influential coalitions that unite
diverse Americans to achieve social progress. Similarly, Karen
McGill Lawson has served as a predominant figure of civil rights
activism and education. She is the Executive Vice-President and
Chief Operating Officer of the Leadership Conference on Civil and
Human Rights and The Leadership Conference Education Fund.305
Prior to her work with the Leadership Conference, Lawson worked
as the Education Monitor for the U.S. Commission on Civil Rights
and wrote extensively on race.
Conclusion
Our review of Delta Sigma Theta’s accomplishments illustrates
the wide-array of outstanding service and leadership displayed by
the sorority and its members over the years. The lobbying,
volunteerism, campaigning for civil rights and women’s rights,
networking, fundraising, and mentorship—along with efforts to
expand educational and employment opportunities, health care, and
literacy, and voting rights—are but some of Delta Sigma Theta’s
good deeds. While many BGLOs primarily practiced passive
activism, Delta Sigma Theta members were adept at expanding their
advocacy to be proactive and visible in their communities and on a
national—as well international—stage. The archival data mined for
this project provides detailed accounts of alumnae and
undergraduate chapters’ work on behalf of Delta Sigma Theta—
305. After graduating with a bachelor’s degree from Pennsylvania State University,
Lawson went on to earn a master’s at Notre Dame University.
334
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[Vol. XIII
sometimes together, but also apart, as members branched out to
accomplish their goals. There is much still to learn about individual
chapter activities, the resources members utilized to accomplish their
goals, and the relationships between individual chapters
(particularly between alumnae and undergraduates) working on
joint projects. In particular, the newsletters point to the flexibility
and effectiveness Delta Sigma Theta members exhibited in their
efforts to address issues such as the need for medical care and
understanding of mental health concerns, housing, literacy and
international affairs.
Delta Sigma Theta members have
demonstrated an ability to be ahead of the mainstream discussion on
pertinent issues, including support for single mothers, addressing
unemployment and illiteracy in rural and low-income areas, and the
benefits of early childhood education by participating in Head Start
programs, to name a few initiatives.
The 21st century is proving to be just as fraught with challenges
to Black lives and the well-being of Black communities as the 20th
century. The social, economic, political, and cultural context for
African Americans specifically—and race and gender relations more
generally—are different, but work remains to be done in order for all
members of society to be treated fairly and equally valued. Delta
Sigma Theta members, along with other BGLOs, could be among the
leaders in the fight for social justice. In a global society, connected
by technology and a continuous cycle of information, the potential
for doing good deeds seems to be an achievable but daunting task.
What causes will rise above the information clutter as worthy of
Delta Sigma Theta’s energy, time, and expertise?
Are the previous partnerships with other social organizations
and civil rights groups still intact and viable? What, if any, new
partnerships may be formed with the government, nonprofits, and
corporations?
Does a generational divide between alumnae
members and undergraduate members exist, and how might
members at different stages of their lives, careers, and educations
agree on issues to address? How might members and chapters use
their resources, knowledge and expertise more effectively in the new
world order? Given the tepid response by some BGLOs’ leadership
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335
to the visibility of their members participating in recent social
movements—such as Black Lives Matter—it remains to be seen if
sororities are prepared to push past the boundaries of community
service and philanthropy, yet again, to be active participants in the
struggle for justice.306 Given Delta Sigma Theta’s impressive legacy
of service and leadership, it is imperative for contemporary
members and leadership to remember their past to guide future
strategies and initiatives.
306. Donna M. Owens, Sister Soldiers: A Look at Black Sororities in the Black Lives
Matter Movement, ESSENCE (June 8, 2015), http://www.essence.com/2015/06/09/sistersoldier-look-black-sororities-black-lives-matter-movement.
336
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Appendix
Osceola Macarthy (Adams) was born in Albany, Georgia, in
1890. She was a senior at Howard University, majoring in
Dramatics, at the time of Delta Sigma Theta’s founding. The
majority of her time and effort was dedicated to the world of
American theatre. She was a leader of the Howard College Dramatic
Club and played roles such as For One Night Only.307 After
graduating from Howard as a skilled actress, Adams was accepted
into the American Repertory Theatre.308 From there, her theatre
career took off. She performed on Broadway, directed plays for a
number of theatres, and taught at the American Negro Theatre and
Bennett College. Adams oversaw and witnessed the acting debuts of
two world-renowned artists of the stage and screen: Sidney Poitier
and Harry Belafonte.309 Along with her passion for theatre, Adams
was also committed to public service and social activism. In 1921,
she, along with other members of the sorority, chartered the Lambda
Chapter of Delta Sigma Theta Sorority in Chicago, Illinois. Adams
served as the first President of Lambda Chapter and subsequently
Delta Sigma Theta’s National Treasurer.310 Adams was also a
devoted wife and mother of one. In 1915, she married Numa P. G.
Adams, a Howard University alum and member of Alpha Phi
Alpha.311 Osceola Macarthy Adams entered Omega Omega Chapter
in 1983.312
Little is known about the life of Delta Sigma Theta founder
Marguerite Young (Alexander). However, what may be deduced
from her place among the twenty-two founders of Delta Sigma Theta
Sorority is that she was a woman of foresight, purpose, and deed.
Coming to Howard University from Chicago, Illinois, Alexander
established herself as a true renaissance woman on campus. Aside
from her active membership in a myriad of campus organizations,
307.
308.
309.
310.
311.
312.
GIDDINGS, supra note 3, at 36–37.
Id. at 67.
Id.
Id. at 90.
Id. at 66–67.
Id. at 36.
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337
she studied romance and classical languages. Putting her training to
use upon her 1913 Howard graduation, she launched a career as a
French and Spanish correspondence secretary for a prestigious
Chicago business firm.313 Apart from her career, marriage and
motherhood, Alexander held fast to her commitment to seeing Delta
Sigma Theta thrive and expand into a sustainable national
organization. In addition to remaining a supporter of Alpha
Chapter’s projects and programs, as previously mentioned, she was
a charter member of the sorority’s Lambda Chapter in her home city
of Chicago.
Winona Cargile (Alexander) was born in Columbus, Georgia, on
June 21, 1893. After graduating as her high school class salutatorian,
she followed in her father and uncle’s footsteps by moving north to
attend Howard University.314 During her four years at Howard,
Alexander made a name for herself by becoming active as a student
leader and garnering popularity. She was a member and Secretary
of the Social Science Club, a member of the College Classical Club,
Class Vice-President, and the first custodian of the Alpha Chapter of
Delta Sigma Theta Sorority.315 After her 1913 graduation, Alexander
taught for a few years before entering New York University’s School
of Social Work. A pioneer in the field, she was the first black social
worker with New York City and New York County Charities.316 She
later became a social worker with the Duval County Welfare Board.
She was married to Florida attorney Edward Alexander. Winona
Cargile Alexander entered Omega Omega Chapter in 1984.317
Ethel Cuff (Black) was born in Wilmington, Delaware, in 1890.
With grandparents who were second-generation free blacks and
landowners and an entrepreneur father in the banking and retail
industries, she arrived at Howard University among the upper
echelon of the black community.318 While at Howard, Black was
heavily involved on campus. She was a member of Howard
313.
314.
315.
316.
317.
318.
Id. at 32.
Id. at 39, 41, 47–48.
DELTA, Jan.-Feb. 1979, at 4.
Id. at 4.
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[Vol. XIII
University’s choir, chairperson of the YWCA’s collegiate committee,
and the first Vice-President of Alpha Chapter.319 After graduating
from Howard in 1915, Black taught social studies at several public
schools and courses at Delaware State College in Dover, Delaware.320
Black went on to become the first black teacher in Richmond County,
New York. In 1939, she married New York City real estate agent
David Horton Black.321 Black remained very active in community
affairs, and helped charter the Queens Alumnae Chapter of Delta
Sigma Theta Sorority in June 1951.322
Bertha Pitts (Campbell) was born in 1889 in Winfield, Kansas.323
Campbell was a scholar; she graduated high school as the
valedictorian of her class and went on to Howard University in
1909.324 At Howard, Campbell developed much of the racial and
gender consciousness that inspired the activism of her adult life.
Among the main topic of discourse, were the subjects of racism and
women’s suffrage.325 In the spring of 1913, Campbell graduated with
honors from the Teacher’s College with a Bachelor of Arts degree in
Education and accepted a teaching position at the Topeka Industrial
Educational Institute.326 After one year there, Campbell traveled
back to Washington D.C. for a job with Howard’s Teacher’s College
and, soon after, an appointment as Assistant Dean of Women in
Minor Hall.327 In 1917, she married Earl Allen Campbell and later
moved to Seattle.328 With a strong interest in activism focused on
race and race relations, Campbell became an active member in
several organizations including: the Ladies’ Auxiliary of the Seattle
Urban League, the National Urban League, and the YWCA.329 On
April 17, 1933, Campbell helped charter the Alpha Omicron Chapter
319.
320.
321.
322.
323.
324.
325.
326.
GIDDINGS, supra note 3, at 36, 39, 48.
Id. at 259.
Id. at 28.
Id. at 8–12.
Id. at 57.
PAULINE A. S. HILL & SHERRILYN J. JORDAN, TOO YOUNG TO BE OLD: THE STORY
OF BERTHA PITTS CAMPBELL, A FOUNDER OF DELTA SIGMA THETA SORORITY, INC. 23 (1981).
327. Id. at 24–27.
328. Id. at 29.
329. Id. at 33.
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339
(now Seattle Alumnae Chapter) of Delta Sigma Theta Sorority, Inc.330
Bertha Pitts Campbell entered Omega Omega Chapter in 1990 at the
age of 101.
Zephyr Chisom (Carter) was born in 1891 in El Paso, Texas.
While at Howard, Carter was a member of the Howard College
Dramatics Club. As an actress, she was best known for her role as
Mistress Quickly in Shakespeare’s The Merry Wives of Windsor.331
Carter was actively involved with the Literary and Social Club on
campus and served as the group’s critic.332 Carter was also active in
the fight for racial equity and joined the Howard branch of the
National Association for the Advancement of Colored People
(NAACP). Carter’s “leading spirit in the organization,” followed
Carter into Delta Sigma Theta, as she served as Alpha Chapter’s
Reporter.333 After graduation, Carter returned to Texas to teach in
San Antonio. Later, she moved to California where she “worked as
a security officer for the state’s Department of Employment—
perhaps to help support her love for singing chorus background
music for films and television shows.”334 Zephyr Chisom Carter
entered Omega Omega Chapter in 1976.
Howard University was not new territory for Delta Sigma Theta
founder Edna Brown (Coleman). A native of Washington D.C.,
Coleman’s father, Sterling Nelson Brown, was a professor of religion
at Howard for thirty-one years. Coleman graduated valedictorian
from Howard Academy in 1909.335 During Coleman’s tenure at
Howard, she was active in a number of campus organizations and
held several leadership positions. Described by many as brilliant,
Coleman was her class valedictorian. After leaving Howard, she
attended graduate school at Oberlin College and married Omega Psi
Phi founder and future Howard physics Professor Frank Coleman.336
330.
331.
332.
333.
334.
335.
336.
HILL & JORDAN, supra note 326, at 35.
Id. at 37.
Id. at 39.
Id. at 41.
Id. at 69.
Id. at 34.
Id. at 66.
340
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[Vol. XIII
Hailing from Galveston, Texas, Jessie McGuire (Dent) graduated
from East District High School, one of the first Black high schools in
the state of Texas.337 Dent’s involvement in her hometown was quite
remarkable. During the 1940s, a time when African-American
teachers throughout the South were lobbying for better and equal
pay, Dent successfully sued the Galveston Independent School
District and won equal pay for black teachers in the city.338 Although
Dent married and gave birth to a son, her son unfortunately passed
away at a very young age. Jessie McGuire Dent entered Omega
Omega Chapter in 1948.339
Frederica Chase (Dodd) was born in 1892 in Dallas, Texas.
Dodd was an educator, social worker, and activist. Her father was a
successful Texas attorney and her mother was a well-known teacher.
After graduating from the Dallas Colored School Number 2 in 1910,
she attended Howard University.340 After graduating from Howard
in 1914, Dodd returned to her hometown of Dallas, Texas. There,
she worked as an English instructor in the Dallas High School.
Dodd was influential in establishing a branch of the YWCA for black
women in Dallas. She was also a key player in chartering the Eta
Beta Chapter (now Dallas Alumnae Chapter), which was the first
Greek letter organization in the city.341 Dodd went on to attend
Atlanta University (now Clark Atlanta University) for graduate
school. In the 1930s, she began a career as a social worker and
became one of her state’s first black social workers. Dodd began her
career with the Texas Relief Commission as its Director of the
Emergency Relief Station for African Americans and later worked
for United Charities.342 Dodd married Dallas physician and Howard
University Medical School graduate Dr. John Horace Dodd in
1920.343 Frederica Chase Dodd entered Omega Omega Chapter in
January of 1972 at eighty years old.
337.
338.
339.
340.
341.
342.
343.
HILL & JORDAN, supra note 326, at 35.
Id. at 208.
Id. at 261.
Id. at 35.
Id. at 4.
Id. at 94.
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341
Myra Lillian Davis (Hemmings) was born in Gonzales, Texas, in
1895. While a student at Howard, Hemmings was a member of the
Alpha Phi Literary Society and worked very closely with Howard’s
instructor of Music, Lulu Vere Childers.344 In 1912, when the idea for
the new sorority was conceived, Hemmings was the president of
Alpha Kappa Alpha, but supported the idea to reorganize and
revamp the structure of the sorority to devote its efforts “to larger
matters than those with which they previously had been
concerned.”345 Hemmings went on to help form what would become
Delta Sigma Theta Sorority, Inc. in 1913. She was elected the first
President of the Alpha Chapter, a position she held until her May
1913 graduation from Howard University. Hemmings went on to
earn a master’s degree in speech and dramatic arts from
Northwestern University and teach in her home city of San Antonio,
Texas. In 1944, Hemmings starred in Go Down Death—now a black
film classic.346 She was an active member of the NAACP, the
National Council of Negro Women, and was a charter member of the
San Antonio Alumnae Chapter of Delta Sigma Theta Sorority.347
Hemmings also served as the sorority’s Grand Vice-President during
the tenure of sixth national president Jeannette Triplett Jones.348 In
1922, she married John “Pop” Hemmings, a former Broadway
actor.349 Myra Davis Hemmings entered Omega Omega chapter in
December of 1968 in her hometown of San Antonio, Texas.
Like fellow founder Edna Brown Coleman, Olive C. Jones was
also a native of Washington D.C. A member of Howard’s class of
1913 and an accomplished pianist, she went on to teach music in the
D.C. public school system.350 Although holding no position among
the executive board of Alpha Chapter, during her final three months
on campus, Jones continued her support of the chapter post344. GIDDINGS, supra note 3, at 35, 39.
346. See Go Down, Death!, IMDB, http://www.imdb.com/title/tt0036870/ (last visited
Apr. 25, 2016).
348. Id. at 154.
349. Funeral Program for Myra D. Hemmings, PORTAL TO TEX. HISTORY (Dec. 14, 1968),
http://texashistory.unt.edu/ark:/67531/metapth246982/m1/2/.
342
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[Vol. XIII
founding. Unfortunately, throughout the years, Jones lost touch
with the sorority and not much else is known about her life after
Howard. Nonetheless, she stands among the circle of twenty-two as
the underpinning of a legacy and tradition that remains a viable
institution in our communities.
A native of Lynchburg, Virginia, Jimmie Bugg (Middleton)
arrived on Howard’s campus in 1909. Middleton was an active
member of the Howard community. In 1913, Middleton graduated
from Howard’s Teacher’s College with honors.351 She later returned
to Howard during the 1930s to acquire a master’s degree. Middleton
enjoyed an extensive career as an educator; first as a teacher, then as
a librarian, and finally as a Dean of Girls at a high school in Raleigh,
North Carolina. On May 7, 1938, Middleton helped to establish the
Alpha Zeta Chapter (now the Raleigh Alumnae Chapter) of the
sorority.352 Active in a myriad of civic and educational endeavors,
Middleton served as President and National Treasurer of the
National Association of College Women (NACW). In 1944, she was
appointed to the Scholarship Board of New York State’s 22nd
congressional district during the first tenure of Congressman Adam
Clayton Powell, Jr.353 Middleton married Dr. Charles Clayton
Middleton and the two went on to have two daughters.354 Their first
daughter, Catherine Brown Middleton, was born in January of 1916,
and a second daughter, Amanda Belle, was born in 1917.355
The first treasurer of Alpha Chapter, Pauline Oberdorfer Minor
was born in Charlottesville, Virginia. According to Paula Giddings,
“by her own submitted biography to the sorority, [she] did not know
who her parents were or the exact date of her birth … [and] was
reared by an aunt and uncle in Philadelphia.”356 After graduating
from the Philadelphia High School for Girls in 1910, Minor went on
to enroll in the Teacher’s College at Howard University. Aside from
her teaching career, Minor was also a gifted musician. After
351.
352.
353.
354.
355.
356.
Id. at 189.
Id. at 191.
Id. at 36.
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343
graduating valedictorian of the Teacher’s College in 1914, she
embarked upon a career as mezzo-soprano recitalist and published
hymn-writer.357 Among her publications was a book entitled Soul
Echoes, which featured forty of her own compositions including “My
Lord Is a Refuge” and “Get Off the Judgment Seat.”358 Minor
entered Omega Omega Chapter in 1963.
Lula Vashti Turley (Murphy) was born on February 22, 1884, in
Washington D.C.359 After high school, Murphy went on to teach
elementary school.360
When Howard opened its doors to
Washington teachers, Murphy entered Howard as a member of the
class of 1914. During college, Murphy kept her job as a teacher, but
was also an active member of the student branch of the NAACP, and
Class Vice-President.361 Murphy was an active member of the
Baltimore Alumnae Chapter. In addition to her service to Delta
Sigma Theta, Murphy was a member of Baltimore’s National
Association of College Women branch, supporter of the Maryland
School for Girls, a staunch supporter of the YWCA, and a member of
the NAACP—as she was at Howard.362 After graduation, she
married Carl Murphy, alumnus of Howard and Harvard
Universities. Together, they parented five daughters—four of whom
became Delta Sigma Theta members. Their granddaughter, the
Reverend Vashti Murphy McKenzie, became the National Chaplain
of Delta Sigma Theta, as well as the first female Bishop of the African
Methodist Episcopal Church. Vashti Turley Murphy entered Omega
Omega Chapter in 1960.
Naomi Sewell (Richardson) was born in Washingtonville, New
York, in September 1892. The first African American graduate of the
Washingtonville High School, Richardson entered Howard as a
student in its Teacher’s College.363 In 1914, after graduation, she was
appointed to teach elementary aged students in the segregated
358. Id. at 69.
359. ELIZABETH M. MOSS, BE STRONG! THE LIFE OF VASHTI TURLEY MURPHY, CO-FOUNDER
OF DELTA SIGMA THETA SORORITY, INC. AND HER IMPACT ON THE LIVES OF OTHERS 4–5 (1980).
360. Id. at 5.
362. Id. at 36.
363. DELTA, Jan.-Feb. 1979, at 5.
344
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[Vol. XIII
public school system of East St. Louis, Missouri.364 Later in her
career, Richardson taught in Princeton, New Jersey, and New York
City, New York. While in New Jersey, she met and married
Clarence Richardson.365 Richardson and her husband lived in New
York City for over twenty years and the two were very active in the
community. After a life of service, Richardson entered Omega
Omega Chapter in 1993 in her hometown of Washingtonville, New
York.
Mamie Reddy (Rose) was from Gonzales, Texas.366 As a student
at Howard, Rose was very active, and served as the president of the
literary and social club.367 She graduated from Howard in 1913 and
soon after, she married Rev. James E. Rose.368 Rose elected against a
career outside of the domestic sphere, and as such, became a
homemaker. After four years of marriage, Rose became very ill.
Sadly, Mamie Reddy Rose became the first of Delta Sigma Theta’s
founders to depart this earthly life. She entered Omega Omega
Chapter on February 17, 1919.369
Eliza Pearl Shippen was born in Washington D.C., in 1888. Her
family was well-known throughout the city and her father was an
alumnus of Howard University.370 Shippen was educated at the
Minor Normal School in D.C. and graduated first in her class.371 At
Howard, she became a member of the Teacher’s Club and graduated
from the Howard College of Arts and Sciences magna cum laude in
1912.372 She went on to earn a Master of Arts degree from the
Teacher’s College at Columbia University in 1928 and a Ph.D. in
English Language and Literature from the University of
Pennsylvania in 1944.373 Eliza Pearl Shippen entered Omega Omega
Chapter in 1981.
364.
365.
366.
367.
368.
369.
370.
371.
372.
373.
Id. at 66.
Id. at 35.
Id. at 39.
Id. at 38.
Id.
Id.
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345
Another native of Washington D.C., founder Florence Letcher
(Toms) graduated from the Armstrong Manual Training High
School. Her high school graduation ceremony was particularly
memorable when President William Howard Taft awarded her with
a diploma and scholarship.374 At Howard, Toms was active in a
number of student organizations on campus; primary among her
involvement was her role in the founding of Delta Sigma Theta
Sorority, Inc. After graduating from Howard, Toms began a
successful career in education. She served as an assistant principal
at Garnet-Patterson Junior High School in Washington D.C., and
went on to earn a master’s degree from New York University.375
Throughout her life, she was active in a plethora of civic groups and
organizations oriented toward education. She was a member of the
Board of Directors of the Family Welfare Association, a member of
the Federation of the Parent-Teacher Association, and the
Intercultural Vocation School. Florence Letcher Toms was a life-long
educator and public servant. Toms was married to attorney Charles
H. Toms. She entered Omega Omega Chapter in 1972.
Ethel Carr (Watson) grew up in Parkersburg, West Virginia.
She graduated from the Sumner School and, thereafter, entered
Howard University as a freshman.376 At Howard, Watson was a
member of the College Classical Club and the treasurer of the
Literary and Social Club—an organization comprised of other Delta
Sigma Theta founders.377 After graduating from Howard University,
she worked as a teacher until May 28, 1948, when she began her very
active career as a dramatic performer.378 Among one of her most
well-known dramatic performances, Watson once presented She
Stoops to Conquer at the Smoot Theater in her hometown of
Parkersburg, West Virginia.379 Although the exact year of Watson’s
death remains unknown, it is known that by 1963, the year of the
374.
375.
376.
377.
378.
379.
Id. at 189.
Id. at 34.
Id. at 39.
346
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[Vol. XIII
sorority’s golden anniversary, Watson had entered Omega Omega
Chapter.
Wertie Blackwell (Weaver) was born in Kansas City, Missouri.
After graduating from Howard, she returned to her home state and
taught elementary school in East St. Louis, Missouri. After marrying
Dr. Darrington Weaver, the two made their home in Los Angeles,
California, and parented three sons.380 While in Los Angeles, she
was an active member of the Nu Sigma Chapter of the sorority.
Weaver was the author of a novel entitled The Valley of the Poor, a
book that shed light on issues of racism and class in the South. Just
years prior to her death, Weaver said, ”You will never know just
how happy and proud, I, as one of the founders of Delta Sigma
Theta, feel watching the remarkable progress you and other sorors
have made; thus, making Delta Sigma Theta members stand out as
one of the greatest beacon lights of the many fraternal
organizations.”381
Madree Penn (White) arrived at Howard University after
graduating with honors from Central High School in Omaha,
Nebraska. White turned down scholarships to attend the University
of Iowa and the University of Nebraska in order to attend Howard
University.382 As a student at Howard, White became the first
woman to hold an office in a student organization as the editor of
the campus paper, The Howard University Journal.383 She was also a
member of the College Classical Club, President of the campus
chapter of the YWCA, Vice-President of the student branch of the
NAACP, Vice-President of the Social Science Club, and Class
Journalist, Class Vice-President, and Class Treasurer.384 In 1912,
Madree Penn (White) first conceived of the idea of founding what
became Delta Sigma Theta and was responsible for selecting the
Greek-letter symbols of the new sorority. In 1913, Madree Penn
White served as President of Alpha Chapter.385 It was during her
380.
381.
382.
383.
384.
385.
Id. at 50.
Id. at 50.
Summer 2016]
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347
presidency that the sorority’s second chapter, Beta Chapter, was
established at Wilberforce University on February 5, 1914.386 White’s
service to the sorority continued long after her days at Howard.
Outside of sorority involvement, White launched a career in
journalism. She was the publisher and president of the Triangle
Press Company, a publishing and printing company in St. Louis; the
associate editor and business manager of the Omaha Monitor; and
executive secretary of the YWCA in Charlotte, North Carolina.387
Madree Penn (White) married Dr. James E. White and later, they
parented two children. Madree Penn White entered Omega Omega
Chapter in 1967.
Edith Motte (Young) arrived to Howard University as a native
of North Carolina. An accomplished pianist and student of
Howard’s Teacher’s College, she graduated Howard one year earlier
than anticipated and began work at Claflin University in
Orangeburg, South Carolina. Shortly thereafter, she married and
made her home in Youngstown, Ohio. Together, she and her
husband had four children, two girls and two boys. After detecting
the musical talent of her two daughters, Young and her husband
moved to Oberlin, Ohio, and enrolled them in the Oberlin
Conservatory of Music.388 While in Oberlin, Young worked on her
master’s degree in Biblical Literature. Edith Motte Young, along
with the other founders, rest at the core of an enduring legacy of
vision, leadership, and service that is Delta Sigma Theta, Sorority,
Inc.
387. DELTA, Jan.-Feb. 1979, at 5.
348
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6 JURADO_MACRO_FINAL.DOCX (DO NOT DELETE)
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The Fourth Sector: Creating a For-Profit
Social Enterprise Sector to Directly
Combat the Lack of Social Mobility in
Marginalized Communities
CARLOS JURADO*
Introduction
For decades, the majority of Americans unknowingly lost the
ability to obtain the “American Dream.” In fact, Americans offered
no significant resistance as the American Dream was methodically
placed beyond their reach by corporate-inspired public policy. The
nation is now facing a severe income inequality crisis. As a result,
* J.D. Candidate, University of California Hastings College of the Law, 2016;
B.A., University of California, Berkeley, 2011. Thank you to Professor Manoj
Viswanathan for providing me unconditional support throughout my writing
process. This Note would not have been possible without your great feedback and
advice. Thank you to Professor Alina Ball for introducing me to the notion of Social
Enterprises and for driving my passion for social change through a nontraditional
forum. Your contagious passion and pedagogical approach were instrumental in my
desire to write this Note. Thank you to Mrs. Germaine Clancy and Mr. Michael
Clancy for pushing me toward education and supporting me during my initial
pursuit of higher education. Thank you to my son, Romeo, and my daughter,
Veronica, for being my biggest fans from the first moment I decided to pursue higher
education. Thank you to my brother, Gerardo, my sister, Carolina, my Tios, Chuy,
Rogelio, and Victor, and the rest of my family. You have all, in one way or another,
been an amazing support system and I will always be indebted to you. Thank you to
Mrs. Bridget Lemieux and Mr. Donald Lemieux for your love and your support of
my commitment to the study of law. To my life partner, Whitney, thank you for all
the love, support, and patience you gave me during the creation of this Note and
throughout law school. Lastly, gracias mamá y papá por su amor, apoyo, y todo el
sacrificio que han hecho para que yo siguiera con mi sueño de ser abogado.
[349]
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there is a general lack of social mobility, which is especially harsh on
marginalized communities and people of color. Consequently, there
is the need for the creation of a sustainable mechanism that will work
to alleviate the effects of current high rates of income inequality.
This Note addresses the need for the formal creation and growth
of a fourth sector, the For-Profit Social Enterprise sector, as a viable
solution to the lack of social mobility amongst marginalized
communities. In doing so, this Note will explain how the three sectors
of the American market—the government, private, and nonprofit
sectors—have enabled current high rates of income inequality as a
result of either a failure or purposeful scheme to sway the market in
favor of a few elite. In addition, this Note discusses specific goaloriented social mobility approaches that can be implemented by ForProfit Social Enterprises (FPSEs) to more efficiently allocate resources
and measure success. Lastly, this Note proposes For-Profit Social
Enterprise public policies to strengthen regulatory schemes, create an
oversight agency, incentivize social entrepreneurship, maintain and
grow the FPSE sector, and incentivize private social investors.
I. Origins of the Need for the Fourth Sector
The current income inequality crisis in the United States has
created the need for a fourth sector that is capable of alleviating the
general lack of social mobility amongst members of marginalized
communities. Since the late 1970s, the United States has seen a shift
in how income is distributed.1 In the last three decades, the American
economy has grown by about one hundred percent, while the average
American citizen experienced no substantial earnings growth.2 The
average American chief executive officer (CEO) of a large corporation
currently earns approximately 200 times the amount of the average
worker and the richest one percent of Americans take about twenty
percent of total income.3 Although the issue of income inequality is
sobering on its own, income inequality is especially worrisome
1. ROBERT B. REICH, SAVING CAPITALISM xi (2015).
2. Id.
3. REICH, supra note 1, at xi.
Summer 2016]
THE FOURTH SECTOR
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351
because of its chilling effect on social mobility.4 Moreover, low rates
of social mobility can have the effect of collapsing the middle class,
which is responsible for propelling our economy.5
Although the issue of income inequality was recently brought to
the general public’s eye through the Occupy Wall Street movement,6
the issue was not new to those in power.7 For instance, in a
congressional hearing regarding income inequality in the United
States, Minnesota Senator Amy Klobuchar acknowledged that
“income inequality in the United States has been growing for more
than three decades and is now near a record high”8 and that “the top
400 people in this country have more wealth than half of America.”9
Like Senator Klobuchar, there are many legislators who understand
that American policies have played a vital role in enabling the
conditions that have led to current income inequality rates. However,
of those legislators who understand that American public policies
have enabled high rates of income inequality, few publicly
acknowledge the problem because of political implications. Further,
those who intend to address the issue do not understand how and
where to begin. Nevertheless, it is important that the American public
understand the potential impact continued high rates of income
inequality can have on the nation’s economy and overall well-being
4. Income Inequality in the United States, Hearing Before the Joint Econ. Comm. 113th
Cong. 76 (2014) [hereinafter Hearing] (statement of Melissa S. Kearney, Dir., The
Hamilton Project, Brookings Inst.).
5. Robert B. Reich, The Limping Middle Class, N.Y. TIMES, Sept. 3, 2011, at SR6.
6. The Occupy Wall Street movement (“Movement”) began in 2011. The
Movement, which encompassed people from a plethora of backgrounds, came
together to rally against the socioeconomic injustice that was rampant throughout
America. The Movement challenged the status quo wherein, at the time, households
in the top one percent captured ninety-nine percent of the country’s total income
gains, while incomes for the rest of the country were at their lowest in fourteen years.
Consequently, most Americans had less of an opportunity for social mobility while
poverty rates had increased to the point that one-third of all Americans were living
in poverty or earned low-income wages. See OCCUPY WALL STREET, http://occupywall
st.org/about/ (last visited Mar. 30, 2016).
7. See Hearing, supra note 4.
8. Id.
9. Id.
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[Vol. XIII
in order to grasp why it is indispensable to resolve the issue.
A. Income Inequality Exacerbates the Lack of Social Mobility
The United States must combat income inequality because of its
adverse effect on social mobility. Experts have uncovered a correlation between high rates of income inequality and low rates of social
mobility.10 Low social mobility rates are detrimental to the nation’s
economy because they stretch the income ladder, causing a few to
overwhelmingly benefit, while at the same time causing the middle
class, the driving force of our economy, to diminish in size, and the
lower class to grow substantially.11
As income inequality figures began to rise beginning in the 1980s,
rates of intergenerational mobility, the rate of upward mobility
between parents and their offspring, declined sharply from the rates
that had prevailed from 1950 to 1980.12 This sharp decline was likely
due to the change in income distribution. In fact, from 1979 to 2007,
middle class income rose by thirty-five percent, while incomes for the
top one percent rose by 278 percent.13 Sadly, this income distribution
trend has continued. The United States is currently ranked sixtyfourth in the world in terms of income inequality14 and studies have
shown that “[t]he nations with high [income] inequality have the
slowest social mobility.”15 Further, as Robert Reich explained, “even
if you take the heroic assumption that the velocity—that is, the rate of
upward mobility—is the same today as it was thirty or forty years ago
. . . you can see logically how as the income and wealth ladder get
longer and longer . . . you are not going to get too far up that ladder.”16
10. Hearing, supra note 4, at 7 (statement of Robert Reich).
11. Id.
12. Thomas W. Mitchell, Growing Inequality and Racial Economic Gaps, 56 HOW.
L.J. 849, 863 (2013).
13. HEATHER BOUSHEY & ADAM S. HERSH, CTR. FOR AM. PROGRESS, THE AMERICAN
MIDDLE CLASS, INCOME INEQUALITY, AND THE STRENGTH OF OUR ECONOMY 1 (2012).
14. Hearing, supra note 4, at 2 (statement of Amy Klobuchar, Vice Chair, U.S. Sen.
from Minn.).
15. Id. at 7 (statement of Robert Reich).
16. Hearing, supra note 4, at 7.
Summer 2016]
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353
As the income inequality gap grows wider, it becomes increasingly
difficult for individuals to obtain upward mobility because the next
socioeconomic level is at an increasingly distant reach.
Consequently, the rate of intergenerational upward social
mobility has remained stagnant over the last few years and, more than
ever, a parent’s socioeconomic status has become increasingly
indicative of its offspring’s future status.17 A study by the Brookings
Institute found that forty-two percent of children born into the bottom
fifth quintile of income remained in the bottom fifth as adults, thirtynine percent of children born into the top percentile remained at the
top, and only six percent of children born into the bottom quintile
moved to the top.18 Moreover, the study found that children born into
middle-income families had a “near equal likelihood” of moving into
any other quintile.19 These figures are significant because they
indicate that the poor are likely to remain in low socioeconomic levels
while members of the middle class are also likely to mobilize out of
middle class status. As a result, the middle class has continued to
diminish in size and may soon stop being the driving force of our
economy.
B. The Middle Class as the Driving Force of the Economy
Over the course of American history, the middle class has played
a crucial role in the development and maintenance of the economy.
For instance, Reich noted that during the three decades that followed
World War II (WWII), “America created the largest middle class the
world had ever seen. During those years, the earnings of the typical
American worker doubled, just as the size of the American economy
doubled.”20 In the years after WWII, the American economy was
booming and the middle class was the driving force behind the
17. Julia B. Isaacs, Economic Mobility of Families Across Generations, in BROOKINGS
INST., GETTING AHEAD OR LOSING GROUND: ECONOMIC MOBILITY IN AMERICA 1, 7 (2008).
18. Id.
19. Id.
20. REICH, supra note 1, at xi.
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[Vol. XIII
thriving economy.21 This period of time demonstrates that a strong
middle class propels the economy in a variety of ways, including: the
development of more educated population, the development of
future entrepreneurs, and the development of inclusive political and
economic institutions such as unions.22 More importantly, a strong
middle class creates a demand for goods and services.23
Historically, the middle class has been responsible for most of the
demand and spending in the economy.24 However, with a smaller
and weaker middle class the economy suffers due to the lack of
sufficient members in the market for goods and services.25 As some
scholars noted, the vicious cycle is felt throughout the economy as
businesses will only invest “if they are confident that they will be able
to sell their products at a profit. Yet families will not be able to
consume or make investments in themselves and their children if they
have insufficient incomes or are financially insecure.”26 Moreover,
our current income distribution system allows for top earners to
hoard large amounts of wealth and, because there is a very limited
number of top earners, they are unable to spend enough money to
drive our economy.27 Without the spending power of the middle
class, the economy will lose its main catalyst and the mechanisms that
propel the economy will become stagnant and fail. Consequently, it
is crucial that we work to diminish the current high rates of income
inequality in order to strengthen and maintain the middle class, as
America once did in the past when its economy was booming.
21.
22.
23.
24.
25.
26.
27.
REICH, supra note 1, at xi.
BOUSHEY & HERSH, supra note 13, at 9–43.
Id. at 4.
Reich, supra note 5.
BOUSHEY & HERSH, supra note 13, at 25.
Id. at 24.
Id. at 26–27.
Summer 2016]
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355
C. High Rates of Income Inequality Are Especially
Troublesome to People of Color
Wide disparity in income distribution is additionally problematic
when we recognize that people of color are disproportionately
affected. In 2014, the real median income ratio of African Americans
to Whites was 0.59.28 For Latinos, the ratio of real median income
compared to that of Whites was 0.71.29 Although the incomes of all
three groups fell as a result of the recession, data from 2014 shows that
since 2001, white household incomes have suffered a decline of four
percent, while African-American and Latino households suffered
income declines of 13.2 percent and 6.8 percent respectively.30 These
exaggerated effects on minority communities have also translated into
a lower rate of upward social mobility in comparison to Whites. Data
from 1971-2010 indicate that “[i]f we consider African-Americans’
absolute income, rather than their relative position within the income
distribution, new research shows virtually no improvement over
time.”31
[A] majority of African-Americans whose parents were in
the middle class have fallen downward into a lower
segment of today’s income distribution.32 Whereas White
children raised in middle and upper-income families have
much higher income than their parents when they reach
adulthood, Black children raised in similar families have
substantially lower income than their parents.33
Moreover, these disproportionate rates of social mobility are
especially alarming when we consider that only 10.1 percent of Whites
live in poverty, compared to 26.2 percent and 23.6 percent of African
28. CARMEN DENAVAS-WALT & BERNADETTE D. PROCTOR, U.S. CENSUS BUREAU,
INCOME AND POVERTY IN THE UNITED STATES: 2014, at 7 (2015).
29. Id.
30. Id.
31. PATRICK SHARKEY, STUCK IN PLACE: URBAN NEIGHBORHOODS AND THE END OF
PROGRESS TOWARD RACIAL EQUALITY 3 (2013).
32. Id. at 4.
33. Id.
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[Vol. XIII
Americans and Latinos respectively.34 Together, such data illustrates
that although most of America is suffering due to the unequal
distribution of income, minorities are far less likely to ascend to the
middle class or to retain their middle class status under current
economic conditions.
The consequences of this continued economic trend are alarming.
Decades of disproportionate income inequality have enabled the
creation and growth of high poverty neighborhoods that are largely
inhabited by people of color.35 These neighborhoods are faced with
social isolation, high rates of poverty crimes, aggressive policing, and
generally lack access to the private sector, which creates a lack of
access to the mainstream economy.36 Without an active mitigating
solution, this economic segregation will continue to perpetuate the
existence and growth of high poverty neighborhoods and the
disproportionate lack of social mobility amongst people of color.
D. The Optimal Amount of Income Distribution
The current rates of income inequality are dangerously high and
detrimental to our economy and the welfare of the United States. Yet,
it is unconceivable to embark on a quest to find an ideal distribution
of income. However, we can look back to American history to the
years between the end of WWII and the late 1970s to assess what the
income distribution rate was when the American economy and
American capitalism was beneficial to most members of society.
[F]or three decades after World War II, the average hourly
compensation of American workers rose in lockstep with
productivity gains. It was a virtuous cycle, from which
our family and tens of millions of others benefitted: as the
economy grew, the middle class expanded, as its
34. DENAVAS-WALT & PROCTOR, supra note 28, at 14.
35. Alina Ball, Comment, An Imperative Definition of “Community”: Incorporating
Reentry Lawyers to Increase the Efficacy of Community Economic Development Initiatives,
55 UCLA L. REV. 1883, 1894 (2008).
36. Id.
Summer 2016]
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THE FOURTH SECTOR
357
purchasing power rose, the economy grew faster,
spawning new investments and innovations that further
enriched and enlarged the middle class.37
Studies have shown that during this time family income roughly
doubled for everyone in the income distribution.38 In fact, in this time,
family income in the bottom four quintiles increased by
approximately 99.2 percent, while income for those in the top five
percent increased by 85.5 percent.39 In comparison, during the years
of 1979 and 2007, middle class income rose by thirty-five percent,
while incomes for the top one percent rose by 278 percent.40 The
disparity in these figures is alarming and demonstrates how far the
United States has moved away from the days when the market was
advantageous for most Americans. Therefore, we can use the figures
from post-WWII to the late 1970s to provide an indication of what the
United States should strive to attain in terms of income distribution.
However, it is ultimately not necessary to identify an optimal amount
of income distribution. Instead we can use these figures to
understand that the current levels of income inequality are far too
high.
II. How the Existing Three Sectors Have Enabled High
Rates of Income Inequality
In arguing that a fourth sector is a viable and necessary solution
to alleviate the lack of social mobility caused by income inequality, it
is first necessary to discuss how the three existing sectors—private,
government, and nonprofit—have enabled the conditions that have
led to current high rates of unequal income distribution. An analysis
of all three sectors will help us understand that, either by design or by
37. REICH, supra note 1, at 115.
38. Chad Stone et al., A Guide to Statistics on Historical Trends in Income Inequality,
CTR. ON BUDGET & POL’Y PRIORITIES (Oct. 26, 2015), http://www.cbpp.org/research/
poverty-and-inequality/a-guide-to-statistics-on-historical-trends-in-income-inequality.
39. Mitchell, supra note 12, at 853.
40. BOUSHEY & HERSH, supra note 13, at 1.
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[Vol. XIII
failure, all three sectors have, congruently, enabled the conditions that
have led to the creation of a society where the top quintile continually
accumulates wealth while those living in poverty will likely remain
poor for the rest of their lives.
A. The Private Sector
Prior to the 1980s, the private sector was comprised of firms that
were capable of creating profits while also providing acceptable living
standards for their constituents through appropriate wages.41 This
was accomplished through a combination of legal regulations and
bargaining powers that enabled company constituents to have
significant control over their work treatment and compensation. For
instance, the National Labor Relations Act of 1935 (NLRA) enabled
the creation and growth of unions by providing workers the legal
right to orderly election procedures and rules governing union
formations.42 In addition, the Treaty of Detroit, which was a
bargaining agreement between General Motors and the United Auto
Workers, set a significant bargaining pattern that called for wages to
grow at the same rate as productivity and the cost of living.43 Both the
NLRA and the Treaty of Detroit played a part in providing company
constituents with significant countervailing powers that they used to
protect themselves from corporate greed.44
Beginning in the early 1980s the United States began to
experience a downturn in corporate behavior and in the use of
collective bargaining. 45
Competition from international and
nonunion national companies, a widely publicized antiunion
sentiment by the Reagan Administration, and a variety of other
reasons, led to a growing number of wage concessions and an overall
41. Ronald Blackwell & Thomas Kochan, Restoring Public Purpose to the Private
Corporation (Feb. 10, 2013), http://papers.ssrn.com/sol3/papers.cfm ?abstract_id=2214
621.
42. Id. at 4–5.
43. Id.
44. Id.
45. Id. at 6.
Summer 2016]
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359
hostility toward unionization.46 Consequently, corporate executives
stopped enforcing previously enacted regulations and began to make
decisions that overwhelmingly favored shareholders and corporate
executives.47 Corporations once again asserted the view that
maximizing profits and shareholder value were the main and,
perhaps, the only purpose of the corporation.48 This “shareholder
value first” way of thinking was especially reflected in CEO
compensation packages as they were more often mainly aligned with
the creation of profit.49 As a result, these new CEO compensation
structures created incentives for the creation of profits without regard
for company constituents. For instance, low wages and layoffs
became a common preemptive means of ensuring profit margins were
being met, instead of last resort strategies to keep the corporation
afloat.50 In addition, CEO compensation ballooned to unseen
figures.51 Whereas the CEO to average worker compensation ratio
was 40:1 in 1970, that figure had grown to nearly 400:1 in 2005.52
For instance, in 2011 the average Wal-Mart employee earned
$18,000 per year53 while, Wal-Mart’s former CEO, Michael Duke,
earned an estimated $18,000 per hour.54 To understand the magnitude
of the issue, we must consider that Wal-Mart is the biggest private
United States employer with 1.3 million employees.55 However, WalMart is just one of the top one hundred corporations that has grown
to employ fifty-three percent more employees between 1986 and
46. Blackwell & Kochan, supra note 41, at 6–7.
47. Id. at 7.
48. Id.
49. Id.
50. Id.
51. Id. at 8.
52. Id.
53. Sarah Jaffe, CEO of Wal-Mart Makes in One Hour What the Average Employee
Makes In a Year: How Skyrocketing Inequality Is Hurting America, ALTERNET (June 20,
2011), http://www.alternet.org/story/151351/ceo_of_walmart_makes_in_one_hour_
what_the_average_employee_makes_in_a_year%3A_how_skyrocketing_inequality_
is_hurting_america.
54. Id.
55. Neil Irwin, As Wal-Mart Gives Raises, Other Employers May Have to Go Above
Minimum Wage, N.Y. TIMES, Feb. 19, 2015, at BU6.
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[Vol. XIII
2010.56 In fact, businesses that employed 500 or more individuals
provided fifty-one percent of all employment in the United States in
2011.57 Furthermore, wage inequality trends remain constant across
many large corporations.58 Wage data from large corporations
indicate that the CEOs of these entities earned, on average, 343 times
more than the average workers of their respective companies.59 This
data is especially troublesome when we consider that there is a
correlation between the growth of large corporations and the growth
of income inequality.60
Unfortunately, large corporations are likely to continue
dominating the market due to favorable public policy and tax laws,
and, more importantly, a lack of competition. The lack of competition
has been caused by a low ratio of “Business Dynamism.”61 Business
Dynamism is described as “the process by which [companies]
continually are born, fail, expand, and contract, as some jobs are
created, others are destroyed, and others still are turned over.”62 In
short, Business Dynamism is the ratio of the creation of new
businesses versus the end of others.
According to a Brookings Institute study, Dynamism is at an alltime low in America.63 Entrepreneurs are no longer taking risks by
starting new businesses and have instead acquired employment with
56. The Bigger, The Less Fair, ECONOMIST (Mar. 14, 2015), http://www.economist.
com/news/finance-and-economics/21646266-growing-size-firms-may-help-explain-ri
sing-inequality-bigger.
57. Nikelle Murphy, Are Big Companies Driving Income Inequality?, CHEATSHEET (Apr.
2, 2015), http://www.cheatsheet.com/business/why-big-companies-are-driving-incomeinequality.html/?a=viewall.
58. George Zornick, Large, Profitable Companies Employ Most Minimum-Wage
Earners, NATION (July 19, 2012), http://www.thenation.com/article/large-profitablecompanies-employ-most-minimum-wage-earners/.
59. Jaffe, supra note 53.
60. Murphy, supra note 57.
61. Ian Hathaway & Robert E. Litan, Declining Business Dynamism in the United
States: A Look at States and Metros, BROOKINGS INST. (May 2014), http://www.brook
ings.edu/research/papers/2014/05/declining-business-dynamism-litan.
62. Id.
63. Id. at 6.
Summer 2016]
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THE FOURTH SECTOR
361
other companies.64 While the United States had constantly maintained a positive ratio of new businesses versus businesses that had
been shut down, the United States experienced its first negative
Dynamism ratio in 2010; this meant that the United States market had
experienced more business deaths than births.65 This downward
trend in company births indicates that large corporations are
currently experiencing less competition. Without competition, large
corporations will continue to run their operations in a manner that
will allow them to increase their profit margins. In other words,
corporations will continue paying their executives high salaries while
continuing to pay their employees low wages. As history has shown,
a thriving private sector under current market conditions and
regulations, will likely mean that income inequality rates will
continue to climb.66
B. The Government Sector
The government has been complicit in the creation of current
rates of income inequality due both to direct action and to a failure to
properly mitigate the existing high rates of income inequality. The
government has acted directly through the political process by
embracing a political culture where wealth equals political influence
and power over the structure of the market. Additionally, it has failed
to mitigate the effects of an uneven market through its ineffective antipoverty spending programs.
1. How the Political Process Has Shaped the Market
The notion of a “free market” is false, misleading, and
dangerous.67 In fact, it creates a thriving forum for erroneous and
problematic discussions of “meritocracy” where the market takes a
64.
65.
66.
67.
Hathaway & Litan, supra note 61, at 6.
Hathaway & Litan, supra note 61, at 1.
See supra Part 1.
REICH, supra note 1, at 1.
362
4/27/2016 4:16 PM
[Vol. XIII
Darwinist role.68 The “free market” narrative asserts that individuals
earn what they deserve.69 It assumes the market unbiasedly
compensates those who are best fitted and punishes the unfit with low
wages or unemployment.70 However, the truth is that the market
does not exist without the rules and regulations enacted by the
government.71
The market was synthetically created and is
maintained by the United States government through the political
process.72 Consequently, the market is maintained and shaped
through the decisions of elected officals with legislative power.73 In
essence, our nation’s political process is the forum through which our
government makes decisions regarding what is acceptable and what
should be outlawed in the market.74 It is through this political process
that the market has been substantially tilted to benefit the wealthy.75
a. The Influence of the Wealthy on Elected Officials
Wealthy individuals and large corporate interest groups are,
almost solely, responsible for shaping American policies.76 This is
mostly due to the fact that a few wealthy individuals and corporate
interest groups are by far more willing and able to make significant
campaign contributions to politicians.77 Campaign contributions are
crucial to politicians. In fact, most successful political campaigns are
driven by well-endowed campaign funding.78
This constant
68. REICH, supra note 1, at 1.
69. Id.
70. Id.
71. Id.
72. Id. at 4.
73. Id. at 5.
74. Id. at 82.
75. Id. at 81.
76. Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites,
Interest Groups, and Average Citizens, 12 PERSP. ON POL. 564, 573–74 (2014).
77. Nicholas Confessore, Sarah Cohen & Karen Yourish, Small Pool of Rich Donors
Dominates Election Giving, N.Y. TIMES (Aug. 1, 2015), http://www.nytimes.com/2015/
08/02/us/small-pool-of-rich-donors-dominates-election-giving.html?_r=0.
78. Wesley Lowery, 91% of the time the better-financed candidate wins. Don’t act
surprised., WASH. POST (Apr. 4, 2014), https://www.washingtonpost.com/news/the-fix/wp/
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fundraising activity opens the door to campaign financing in
exchange for future consideration. In effect, campaign donations
enable the likelihood that candidates will be vulnerable to the
preferences of their donors when it comes to making future legislative
decisions if they are elected to office. This creates the unspoken, but
well-known, practice of quid pro quo, exchanging campaign
contributions for political influence. Since this process can be
simplified as the legal exchange of money for political favors, and
given the fact that the recent decision of Citizens United v. FEC79 made
any campaign spending limitations on organizations unconstitutional, it follows that those with more money to spend on campaign
contributions will have more influence on legislative decisions.
One study found that legislators mostly acquiesced to the
interests of the wealthy and their special interest groups.80 More
importantly, this study found that, for the most part, average
Americans lost when they opposed the position of the wealthy and
their special interest groups.81 This study concluded that “economic
elites and organized groups representing business interests have
substantial independent impacts on United States government policy,
while mass-based interest groups and average citizens have little or
no independent influence.”82 Consequently, “decisions are more
often hashed out behind closed doors, in negotiations influenced
disproportionately by giant corporations, big banks, and wealthy
individuals with enough resources to be heard.”83 Therefore, the
market has been shaped and maintained to better suit the needs and
preferences of those who are and wish to remain at the top of the
wealth ladder. Ultimately, the government’s political process has
been implicit in allowing the market to be regulated in a manner that
enables high rates of income inequality.
2014/04/04/think-money-doesnt-matter-in-elections-this-chart-says-youre-wrong/.
79. Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
80. Gilens & Page, supra note 76, at 575–76.
81. Id. at 575.
82. Id. at 565.
83. Reich, supra note 5, at 82.
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2. The Government’s Spending Programs
Although the government has recognized the problem of highincome inequality and has aimed to mitigate the issue through
government spending programs, notwithstanding the fact that
income inequality would be more severe in the absence of current
programs, it has failed to find a viable solution. The government’s
spending programs such as the Temporary Assistance for Needy
Families program (TANF) and the Supplemental Nutrition Assistance
Program (SNAP, formerly known as “Food Stamps”) are part of the
government’s “war on poverty.”84 However, these programs have
failed to create any significant permanent improvement in the lives of
those they have targeted.85
Nevertheless, it is important to
comprehend the government’s most successful attempt at mitigating
income inequality, through the “Earned Income Tax Credit” program
(EITC), in order to understand how government programs are
incomplete solutions to addressing the widening income inequality
gap problem.
a. The EITC as an Inefficient Solution to the High
Rates of Income Inequality
The EITC provides a refundable tax credit that is given to lowincome families in proportion to their income.86 The tax credit is
phased out as earned income rises.87 Families that have earned
incomes over a certain limit will not be eligible for the refundable
credit.88 The EITC is currently the government’s biggest antipoverty
measure.89 It has been the fastest growing antipoverty measure since
84. THE WAR ON POVERTY: 50 YEARS LATER, A HOUSE BUDGET COMMITTEE REPORT
7–9 (2014).
85. Policy Basics: An Introduction to TANF, CTR. ON BUDGET & POL’Y PRIORITIES,
http://www.cbpp.org/research/policy-basics-an-introduction-to-tanf (last updated June 15,
2015).
86. 26 U.S.C. § 32 (2015).
87. Id.
88. Id.
89. Susannah C. Tahk, The Tax War on Poverty, 56 ARIZ. L. REV. 787 (2014).
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the 1980s.90 It is estimated that the government spent a total of $69.2
billion on the EITC program in 2014.91
The EITC was first enacted during the Nixon administration as a
means to ensure that all working families had a minimum income.92
Since then, the EITC has experienced constant substantial growth.93
This is in large part due to the program’s appeal to both Democrats
and Republicans. The EITC is agreeable amongst Republicans
because it incentivizes labor, while Democrats also advocate for the
EITC because it provides a subsidy for families in lower socioeconomic levels.
Although the program has experienced relative success in
comparison to the government’s other spending programs, it has
failed to substantially bridge the income inequality gap. For instance,
it is estimated that the EITC was able to fill the poverty gap94 by 5.4
percent in 2013.95 Although this is a larger percentage than TANF,
which is estimated to have filled the poverty gap by 2.5 percent in
2004,96 and all other current antipoverty programs, it is still miniature
compared to the 21.7 percent that, TANF’s predecessor, the “Aid to
Families with Dependent Children” program (AFDC) used to fill.97
In addition, studies have demonstrated that the EITC was
especially ineffective when it came to positively affecting the
economic situation of individuals belonging to the lowest socio-
90. John K. Scholz, Robert Moffitt & Benjamin Cowan, Trends in Income Support,
26 UNIV. WIS. INST. FOR RES. ON POVERTY 43, 47 (2009).
91. Staff of Joint Comm. on Taxation, 113th Cong., Estimates of Federal Tax
Expenditures for Fiscal Years 2014-2018, JCS-1-13 45 (Comm. Print 2014).
92. CHRISTOPHER HOWARD, THE HIDDEN WELFARE STATE 65–69 (Princeton U. Press
1997).
93. Chris Edwards & Veronique de Rugy, Earned Income Tax Credit: Small Benefits,
Large Costs, Cato institute (Oct. 14, 2015), http://www.cato.org/publications/taxbudget-bulletin/earned-income-tax-credit-small-benefits-large-costs.
94. “Poverty Gap” is defined as the sum of the differences between market
income and the poverty line for all families with incomes below the poverty line. See
Scholz et al., supra note 90, at 44.
95. Tahk, supra note 89.
96. Scholz et al., supra note 90, at 45.
97. Tahk, supra note 89.
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economic status.98 This is a consequence of the EITC distributive
criteria, which allows for a large distribution of the funds to families
above the poverty limit and keeps some of those at the lowest levels
of poverty from benefitting from the tax credit because it demands
that individuals have an earned income in order to qualify for the
program.99 Consequently, those who are in most need of the EITC’s
safety net are disqualified and must depend on other, less effective,
government anti-poverty programs.100 In fact, the EITC was more
effective in creating wealth in families that were closer to the phaseout level101 of income than in those who had less income.102 In the case
of individuals with less income, the EITC enables them to maintain
their current lifestyle by allowing them to pay debts and make repairs
to necessary items that had gone unrepaired through the year.103
Because only a small fraction of those who receive the EITC are able
to accumulate enough income to obtain tangible wealth, it follows that
the government’s largest antipoverty program fails to substantially
mend the income inequality gap in America.
C. The Nonprofit Sector
The nonprofit sector was created, in part, to close the gap that
98. Tahk, supra note 89, at 803.
99. H. Luke Shaefer & Kathryn Edin, Rising Extreme Poverty in the United States
and the Response of Federal Means-Tested Transfer Program 6 (Nat’l Poverty Ctr.,
Working Paper No. 13-06, 2013), http://npc.umich.edu/publications/u/2013-06-npcworking-paper.pdf.
100. Id.
101. Tahk, supra note 89, at 799 (“The EITC statute restricts its benefits to lowincome families by phasing out the credit for taxpayers whose adjusted gross income
exceeds a phase-out amount. Above the phase-out amount, a taxpayer must reduce
her otherwise available credit. She reduces it by the ‘phase-out percentage’ of the
amount by which her adjusted gross income exceeds a statutorily set ‘phase-out
amount.’”).
102. Stephanie Wagner, Building Assets, Building Futures: Does Receiving The
Earned Income Tax Credit (EITC) Help Poor Single Mothers Build Assets For The
Future? 34–35 (Apr. 18, 2007) (unpublished M.P.P. thesis, Georgetown University),
http://handle.net/10822555843.
103. Id. at 35.
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government services were unable to provide.104 Nonprofit entities are
formed for reasons others than to create profit. Hence, nonprofits do
not have shareholders or equity holders. Most nonprofits are created
for educational, health, or social purposes. In all, there are
approximately 1.5 million tax-exempt nonprofits in the United
States.105 About 1.1 million are public charities,106 100,000 are private
foundations,107 and over 350,000 are other types of nonprofits.108
Because public charities are the largest type of nonprofits, it is
important to study their structure, funding, and how they contribute
to the growth of income inequality rates in the United States.
1. Public Charities
Looking at the nonprofit sector through the lens of public
charities, the most abundant type of nonprofit, we can understand
that the nonprofit sector has and will continue to fail in its purpose of
filling the societal needs gap left by the government. Section 501(c)(3)
of the Internal Revenue Code provides that public charities include
entities created to promote the arts, culture, and organizations created
for the purposes of humanities, education, health care, human
services, public and social benefit, amongst others.109 Public charities
are estimated to have received revenues in excess of $1.65 trillion in
104. Rickke Mananzala & Dean Spade, The Nonprofit Industrial Complex and Trans
Resistance, 5 SEXUALITY RES. & SOC. POL’Y 53, 58 (2008).
105. Quick Facts About Nonprofits, NAT’L CTR. FOR CHARITABLE STAT., http://nccs.
urban.org/statistics/quickfacts.cfm (last visited Mar. 15, 2016).
106. Public Charities, I.R.S., https://www.irs.gov/Charities-&-Non-Profits/Chari
table-Organizations/Public-Charities (last visited Mar. 15, 2016).
107. Id.
108. Other types of nonprofits include chambers of commerce, fraternal organizations and civic leagues, among others.
109. 26 U.S.C. § 501(c)(3) (2015).
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2012.110 Of the reporting public charities, 17.1 percent111 were
organizations created for purposes of education, thirteen percent112
were health care organizations, and 11.6 percent113 were organizations
for public and social benefit.114 However, the revenue for health care
and educational organizations accounted for fifty-nine percent115 and
seventeen percent116 of the total revenues for public charities in 2012
respectively.117 Meanwhile, the revenue for public and social benefit
organizations accounted for 5.6 percent of the total revenues for
public charities.118
These figures demonstrate that, with the exception of education
and health care public charities, most public charities have little
funding. In fact, seventy-four percent of public charities do not have
to report their finances because they have gross receipts of less than
$50,000.119 In other words, the large majority of public charities have
relatively small operations. Consequently, this lack of sufficient
funding changes work allocation within the organizations.
Fundraising drives much of the organization’s efforts and social
missions take a backseat to the acquirement of funds. Furthermore,
the organization comes together to stay afloat instead of seeking to
advance their original purpose.
In addition, these figures show that 76.5 percent of the revenue
created by public charities is going to health care and educational
110. BRICE S. MCKEEVER & SARAH L. PETTIJOHN, URB. INST. CTR. ON NONPROFITS AND
PHILANTHROPY, THE NONPROFIT SECTOR IN BRIEF (Oct. 2014), http://www.urban.org/
sites/default/files/alfresco/publication-pdfs/413277-The-Nonprofit-Sector-in-Brief--.PDF.
This is not an exact figure because only 286,420 public charities had to report their
finances. Tax-exempt nonprofits must report their finances only if their gross receipts
for the year exceed $50,000.
111. Id. at 6.
112. Id.
113. Id.
114. Id.
115. Id.
116. Id.
117. Id.
118. Id.
119. Id.
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organizations.120 This is troublesome because in many instances
health care and educational organizations follow a similar income
distribution scheme as the large for-profit corporations.121 According
to Mark Rosenman,
[S]ome nonprofit organizations have to pay differentials
as large as some for-profit corporations. Scores of college
officials take home over $1 million each year while
twenty-two percent of their work force is at poverty-level
wages for a family of four. In many nonprofit health
institutions, disparities are even more extreme.122
This unequal distribution of income is, at least in part, caused by
the infrastructure and the decision making processes of nonprofits.123
Many nonprofits are often operated by those with race, class, and
educational privilege.124 Consequently, decisions as to compensation
and how to best utilize time and resources of the organizations are
concentrated in individuals who are likely not represented in the
organization’s target demographic.125 Therefore, these decisions tend
to resemble a meritocracy where those charged with making decisions
will create compensation schemes that largely favor the very reason
they were charged with making decisions.126
Further, in addition to creating unequal income distribution
schemes, compensation and utilization of resource decisions have
impacted the amount of funds that are actually used toward social
missions.127 After deducting the amount of money being compensated to the leadership and staff of nonprofits and paying overhead
120. MCKEEVER & PETTIJOHN, supra note 110, at 6.
121. Mark Rosenman, Fighting Income Inequality Should Be Top Nonprofit Priority,
CHRON. PHILANTHROPY (Jan. 21, 2014), https://philanthropy.com/article/Fighting-In
come-Inequality/153773.
122. Rosenman, supra note 121.
123. Mananzala & Spade, supra note 104, at 57.
124. Id. at 58.
125. Id. at 57.
126. Id. (arguing that compensation schemes will often provide higher value to
education or experience).
127. Id. at 58.
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costs, it is estimated that only a small amount is directly used for social
purposes.128 As Rickke Mananzala and Dean Spade observed, “more
philanthropic dollars end up in the pockets of those with race, class,
gender, and educational privilege[,]” such as lawyers, social workers,
and people with degrees in nonprofit management.129
Looking through the lens of the public charity, it is evident that
the nonprofit sector has been and will continue to be inefficient in
resolving major social issues such as income inequality. While large
health and educational organizations retain most of the public charity
revenue, they fail to utilize that funding to promote income equality
even within their own organization.130 Instead, they choose to take on
the corporate business model and perpetuate the effects of the private
sector on society. On the other hand, smaller nonprofits are unable to
create large changes because they are in a perpetual fight for
additional funding to remain afloat and only cents of their funding
dollars are used to directly address their social mission.131
Consequently, it follows that the nonprofit sector is incapable of
mending the wide gap of income inequality.
III. For-Profit Social Enterprises and Social Mobility
A. Defining “For-Profit Social Enterprise”
Although there is no generally accepted definition for the term
“FPSE,” for purposes of this Note, FPSE will be defined as “a selfsustaining for-profit business venture, which was created for the
purpose of resolving a social issue through the use of funding
generated by the main and deliberate business operations of the
venture.”132
129. Id.
130. Rosenman, supra note 121.
132. The term “social issue” will include, but is not limited to, economically empowering individuals from marginalized communities. The term “individuals from
marginalized communities” will include people who are especially vulnerable to
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B. For-Profit Social Enterprises as a Means of Creating Social
Mobility
Independent of FPSEs’ ability to eliminate or even mitigate
income inequality, the assertion is that FPSEs can be used to enable
social mobility amongst their respective constituents. By targeting
communities that have proven to be disproportionately susceptible to
current income inequality trends, a FPSE sector has the potential to
become an exceptionally successful tool at alleviating the lack of social
mobility in marginalized communities. Moreover, FPSEs can reach
their goals with surgical precision as they can individually select their
constituents and choose the most appropriate social mobility
approach.
However, in attempting to enable social mobility, it is insufficient
for FPSEs to ascertain broad social missions. For instance, a number
of FPSEs maintain that their social mission is to provide employment
opportunities to individuals from marginalized communities.133
Unfortunately, broad social missions like these do not provide an
actual goal. In fact, they fail to describe what FPSEs hope to achieve
by providing employment opportunities to individuals from
marginalized communities.
Overall, FPSEs are correct in
understanding that the economic empowerment of individuals from
marginalized communities is important in attempting to create social
mobility. Yet, FPSEs should further expand on their endeavors to
express that economic empowerment is but a means to enabling social
mobility. Although there is a wide range of definitions for social
mobility, including, for example, “[t]he ability of citizens to move
from one social class to a higher socioeconomic system,”134 for
current market conditions, such as, but not limited to: the formerly incarcerated,
former gang members, individuals living in poverty, recovering drug addicts, low
income single parents, and individuals enrolled in government assistance programs.
The term “government assistance programs” will include such programs as, but not
limited to, welfare, food stamps, and WIC.
133. See EPAMADE, http://epamade.com/pages/about-us (last visited Apr. 8, 2016)
(“EPAMade is a positive work community that trains and employs single mothers in
order to see hope rise in East Palo Alto.”).
134. Michelle D. Deardorff & Angela M. Kupenda, Negotiating Social Mobility and
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purposes of this Note, I narrow the scope and define social mobility
as “economically mobilizing individuals living in poverty135 into the
middle class.”136
Any endeavor to enable social mobility should begin with an
understanding of the underlying conditions that have and will
continue to serve as barriers to social mobility in order to devise an
appropriate approach. Thereafter, the FPSE should identify a specific
group and qualify the target demographic according to one or more
characteristics. Traits that are commonly found amongst those living
in poverty, such as being previously incarcerated,137 not holding a
high school diploma,138 being a low income single parent,139 receiving
government welfare benefits,140 and others, should be especially
targeted by social enterprises since individuals who meet these
characteristics have been especially susceptible to current income
inequality forces.141
In essence, there must be a determination of the individuals who
Critical Citizenship: Professors at a Crossroads, 22 U. FLA. J.L. & PUB. POL’Y 335, 342 (2011).
135. The term “poverty” will be defined as “those individuals whose household
incomes are insufficient to provide essentials, such as clothing, food, and shelter, to
the average person.”
136. The “middle class” will be broadly defined as anyone who has achieved
certain endeavors such as owning their own home, having savings for retirement, and
having the ability to send their children to college.
137. Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the preincarceration incomes of the imprisoned (July 9, 2015), http://www.prisonpolicy.org/
reports/income.html.
138. Jason Breslow, By the Numbers: Dropping Out of High School, FRONTLINE (Sept.
21, 2012), http://www.pbs.org/wgbh/frontline/article/by-the-numbers-dropping-outof-high-school/.
139. Emily Badger, The Relationship Between Single Mothers and Poverty is Not as
Simple as it Seems (Apr. 10, 2014), https://www.washingtonpost.com/news/wonk/wp/20
14/04/10/the-relationship-between-single-mothers-and-poverty-is-not-as-simple-as-it-see
ms/.
140. GENE FALK, TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF): ELIGIBILITY
AND BENEFIT AMOUNTS IN STATE TANF CASH ASSISTANCE PROGRAMS, CONGRESSIONAL
RESEARCH SERVICE 3 (July 22, 2014), (explaining that most states only provide TANF
benefits to very poor families living below the poverty line).
141. INEQUALITY BRIEFING, WHY INEQUALITY MATTERS FOR POVERTY 1 (Mar. 2002),
http://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/3876.pdf.
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should be targeted for social mobilization. In addition, the constituent
target group should be further analyzed to prioritize according to
necessity and projected success. Lastly, there must be a determination
of the type of social mobility approach the FPSE will utilize to achieve
social mobility. Inevitably, the FPSE’s chosen social mobility
approach will have great influence on its target group and the manner
in which it chooses to economically empower its employees. In this
section we will discuss a number of social mobility approaches and
provide explanations of how these approaches can affect the
determination of the target group and the manner in which FPSEs
choose to economically empower their employees.
1. Social Mobility Approaches
In discussing social mobility, the question often turns to how it
can be achieved and what approach will yield the greatest results.
Although there have been a wide variety of proposed solutions,142 I
have highlighted the following four approaches as the most pertinent
to FPSEs because they utilize economic empowerment as a means to
achieve social mobility.
a. Social Mobility Approach: Improving Marginalized
Neighborhoods
The place-based intervention theory emphasizes community
development and public policy approaches to improve low-income
neighborhoods. As the wealth distribution gap has continued to
widen over the last decades, scholars have become interested in
142. See, e.g., Dawinder S. Sidhu, Civic Education as an Instrument of Social Mobility,
90 DENV. U. L. REV. 977 (2013) (regarding social mobility through improvements in
education); Tomiko Brown-Nagin, Rethinking Proxies for Disadvantage in Higher
Education: A First Generation Student’s Project, U. CHI. LEGAL F. 433 (2014) (regarding
social mobility through improved access to higher education); Deardorff & Kupenda,
supra note 134 (regarding social mobility through challenging injustices in society and
in governmental policies); Lucille A. Jewel, A Progressive View of Class, Culture, and the
Law, 43 UNIV. MEMPHIS L. REV. 239 (2012) (regarding social mobility through
affirmative action).
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understanding how neighborhoods can impact the individuals who
reside within them. For instance, some have found that “individuals
who reside in neighborhoods with a high concentration of individuals
living below the poverty level are less likely to climb the social
ladder.”143 Proponents of the place-based intervention theory argue
that individuals in marginalized communities should remain in their
neighborhoods and work towards improving their living conditions.
Special attention must be paid to the local education system in their
community and the public policies that have rendered their
neighborhood’s conditions possible.
FPSEs looking to enable social mobility through place-based
intervention will likely concentrate their approach on improving a
specific community or a number of communities with similar needs.
Job opportunities should be prioritized for individuals from the target
community. In addition, FPSEs can allocate some of their profits to
aid the target community by investing in social projects within the
area, funding lobbying efforts, and funding additional education
resources for local school districts.
b. Social Mobility Approach: Mobilizing Individuals
Into Affluent Neighborhoods
The residential mobility theory also recognizes the importance of
the area in which individuals reside. However, the residential
mobility theory uses a people-based approach and argues that people
should be moved out of low-income neighborhoods and into more
affluent communities.144 The belief is that moving families to more
143. SHARKEY, supra note 31, at 35–36.
144. See generally RAJ CHETTY, NATHANIEL HENDREN , & LAWRENCE F. KATZ , THE
EFFECTS OF EXPOSURE TO BETTER NEIGHBORHOODS ON CHILDREN: NEW EVIDENCE FROM
THE MOVING TO OPPORTUNITY EXPERIMENT, NAT’L BUREAU OF ECON. RES., (May 2015).
This approach has been explored by the United States Department of Housing and
Urban Development (HUD) in the last two decades through its Section 8 voucher
program. The goal of the program has been to relocate families from low-income
housing communities and place them into residential neighborhoods within more
affluent areas. In addition to HUD’s Section 8 voucher program, a number of states
have established Fair Share Housing Programs that provide grants to individuals
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resourced communities will enable them to access resources that are
simply not available to them in similarly under-resourced
communities. Proponents maintain that this approach is especially
beneficial to families with children because childhood access to
resources, such as a high-quality education, are an important factor in
successful upward mobility.145 In addition, research has found that
children who moved before the age of thirteen to affluent
neighborhoods went on to earn thirty percent more in adulthood than
children who had remained in low socioeconomic communities.146
The overarching argument is that moving low-income families into
affluent communities will provide their children access to additional
resources and those additional resources will provide low-income
individuals better access to the economy.147
FPSEs that wish to use residential mobility as their goal should
target marginalized families with young children. FPSEs can enable
residential mobility in a variety of ways. One simple method of
enabling residential mobility is to provide employees with a salary
that will allow them to afford housing in an affluent community. In
addition, FPSEs can acquire residential housing in affluent
neighborhoods and rent directly to their employees.
c. Social Mobility Approach: Providing Access to
Additional Resources
The Access to Additional Resources Theory (AART) is based on
the premise that both living in a low-income neighborhood and not
having sufficient income, congruently, will dramatically impact the
amount of resources individuals can access. For instance, individuals
who reside in low-income communities may be afforded the
who want to build or refurbish affordable housing options within affluent
communities.
145. Raj Chetty, Keynote Address at the Brookings Institute Center on Children
and Families: Place, Opportunity, and Social Mobility: What Now for Policy? (June 1,
2015).
146. Chetty, supra note 145.
147. Id.
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opportunity to access resources not available in their area if they have
enough income to fund their commute to areas where these resources
are available. In contrast to residential mobility theory and placebased intervention theory, AART simply aims to provide individuals
with enough economic empowerment to afford them the opportunity
to access additional resources. AART does not aim to directly
improve communities or to relocate individuals, instead AART allows
individuals to have the opportunity to obtain additional resources.
For instance, FPSEs can provide sufficient income to ensure that
employees can afford to provide their children with access to better
performing schools.148 In essence, AART empowers individuals to
make their own decisions as to how and if they wish to change their
social condition.
FPSEs that aim to adapt AART as their goal can take a direct
financial empowerment approach. These financial strategies can
come in the form of above living wages, employee incentive plans,
bonuses, company equity, scholarships, and grants, amongst others.
d. Social Mobility Approach: Direct Economic
Empowerment
The Direct Economic Empowerment Approach (DEEA) argues
that the goal should be to provide enough income to enable social
mobility.149 Unlike the previous theories, DEEA has a clearly stated
goal of directly providing to the targeted recipients benefits with
monetary value. In accordance with our definition of social mobility,
the provided income should enable employees to own their own
home, have savings for retirement, and have the ability to send their
children to college. This approach eliminates the need for third-party
processes and is the approach that best allows FPSE to ensure social
mobility. Economic empowerment can come in the form of above
living wages, employee incentive plans, bonuses, and company
148. Compensation could perhaps be sufficient to cover transportation costs or
to enroll in better performing private schools.
149. See supra Section III.B. Social mobility is defined above, as “economically
mobilizing individuals living in poverty into the middle class.”
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377
equity, among others.
IV. The Creation of The Fourth Sector
The creation of the FPSE sector is a viable notion as seen by the
bipartisan support of the enactment of new hybrid entities in several
states.150 New hybrid entity structures have received overwhelming
support by members on both sides of the political spectrum.151 In fact,
in voting for the creation of the Benefit Corporation across seven
states, the vote count was an overwhelming 892 positive votes to
eighty-two nays.152 Moreover, as of now, hybrid entities such as the
L3C,153 Flexible Purpose Corporation,154 Benefit Corporation,155 Benefit
Limited Liability Company,156 Social Purpose Corporation,157 and the
Minnesota Community Enhancement Corporation158 have either been
enacted or have been proposed as new law in recent years. On the
one hand, Republicans appreciate that FPSEs use the market, and not
150. Kyle Westaway, Something Republicans and Democrats Can Agree On: Social
Entrepreneurship, STAN. SOC. INNOVATION REV. (Apr. 17, 2012), http://ssir.org/articles/
entry/something_republicans_and_democrats_can_agree_on_social_entrepreneurship.
151. Westaway, supra note 150.
152. Id.
153. There are currently eight states and two Native American Nations that have
adopted some form of the L3C entity and there are 1,326 entities that have formed as
an L3C throughout all jurisdictions. See INTERSECTOR PARTNERS, L3C, http://www.
intersectorl3c.com/l3c_tally.html (last visited Mar. 18, 2016).
154. Flexible Purpose Corporation was created by S.R. 201 (Cal. 2011) but was
later replaced by the Special Purpose Corporation. See CAL. CORP. CODE § 2600 (2016).
155. There are currently thirty-one states that have enacted Benefit Corporation
statutes and five other that are considering legislation. See STATE BY STATE STATUS OF
LEGISLATION, http://benefitcorp.net/policymakers/state-by-state-status (last visited Mar. 18,
2016).
156. The Benefit LLC was created by S.R. 595 (Md. 2011) (http://mlis.state.md.us/
2011rs/billfile/sb0595.htm).
157. See Goodbye Flexible Purpose Corporation, Hello Social Purpose Corporation, LEX
MUNDI PRO BONO FOUND., http://www.lawforchange.org/NewsBot.asp?MODE=VIEW&
ID=6384 (last visited Mar. 18, 2016).
158. The Minnesota Community Enhancement Corporation was proposed by
H.R. 697 (Minn. 2011) (https://www.revisor.mn.gov/bills/text.php?number=HF0697&
version=latest&session=87&session_number=0&session_year=2011).
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government money, as a solution to social issues.159 On the other side,
Democrats have been enamored by the idea that a business can be
socially responsible.160 Finally, both sides love the fact that FPSEs
create jobs.161
These hybrid entities were created to provide a solution for those
who looked to resolve social issues through the use of for-profit
business activity funding.162 Prior to the creation of these hybrid
entities, it was difficult for executives of for-profit businesses to
commit to social missions without violating their profit maximization
duties.163 In addition, these hybrid entities give individuals a legal
entity through which they can combine inherent principles of both the
private and nonprofit sectors.164 From the private sector, FPSEs aim
to use the market to create profits from the sale of services and
goods.165 In other words, the revenue that will fund the FPSE’s
purpose will derive from business operations and not donations.166
From the nonprofit sector, FPSEs acquired a social purpose.167
Moreover, like nonprofits, FPSEs understand that their social goal is
not only their main priority but also their purpose for existing. In
addition, hybrid entities allow social entrepreneurs to be freed from
the draconian nonprofit regulatory restraints.168 Although the
creation of hybrid entities has enabled social entrepreneurs to more
freely pursue their social mission endeavors, the creation of hybrid
entities also created regulatory voids.169 These voids must be
addressed to ensure that FPSEs are working efficiently to propel their
160. Id.
161. Id.
162. Alicia E. Plerhoples, Social Enterprise as Commitment: A Roadmap, 48 WASH.
U. J.L. & POL’Y 89, 89–90 (2015).
163. MARC J. LANE, SOCIAL ENTERPRISE: EMPOWERING MISSION-DRIVEN ENTREPRENEURS 11 (2011).
164. Plerhoples, supra note 162, at 91.
165. LANE, supra note 163, at 5.
166. Id.
167. Id.
168. Plerhoples, supra 162, at 90.
169. Id. at 91.
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379
social missions.
These hybrid entities do not have the accountability mechanisms
of private and nonprofit entities.170 To begin with, hybrid entities lack
the private sector’s primary duty of maximizing profits for
shareholders.171 Without the private sector’s main accountability
mechanism, hybrid entities are vulnerable to self-benefit, inefficiency,
waste, and overall mismanagement.172 Additionally, hybrid entities
are not accountable to the nonprofit sector’s standards of private
inurement and private benefit, which prohibit the disbursement of the
entity’s earnings to insiders and require that the entity be created and
maintained to serve the public’s interest, respectively.173
Consequently, FPSEs are currently regulated by the perceived good
will of social entrepreneurs.174 In other words, FPSEs are currently
operating without optimal regulatory standards and oversight.
A. FPSE Regulation and Oversight
Public policy should ultimately be aimed at formally creating,
growing, and maintaining the FPSE sector. However, public policy
should initially aim to solidify regulatory schemes and establish
proper oversight mechanisms.
Once proper regulations and
oversight are in place, public officials will be confident that FPSEs are
efficiently operating to serve a social purpose and public policy
enacted to enable the growth of the FPSE sector will likely follow.
1. Solidifying the FPSE Regulatory Scheme
Although there are a number of different hybrid entities with
their own respective regulatory schemes, current entities would better
attract social entrepreneurs and social investors by including a
number of regulatory additions and adjustments. Just like in the
170.
171.
172.
173.
174.
Plerhoples, supra 162, at 91.
Id.
Id.
Id.
Id. at 92.
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[Vol. XIII
nonprofit sector,175 FPSEs should be mandated to include certain
provisions in their governance documents. First, governance
documents should include language that explicitly states the FPSE’s
social mission in detail, its business strategy, and an explanation of
how the business strategy and the social mission intermingle. Second,
governance documents should also include language that calls for a
supermajority vote for any amendments to the social mission or the
business plan.176 Third, governance documents should state that the
FPSE will, at least, provide “living wages”177 to its subordinate
employees and that wages will increase at the same rate as the cost of
living. Finally, governance documents should provide employeevoting rights for issues pertaining to working conditions and
compensatory schemes.
In addition to mandatory language on governance documents,
regulations should designate the creation of a simplified annual
financial report, which explains how the business plan and the
revenue are being used to propel the FPSE’s social mission.178 Annual
175. CAL. CORP. CODE §§ 5150–53 (2016).
176. This is unlike most current L3C statutes, which allow for the entity to
automatically turn into a regular LLC if the entity decides to no longer pursue its
social purpose. Dana Thompson, L3Cs: An Innovative Choice For Urban Entrepreneurs
and Urban Revitalization, 2 AM. U. BUS. L. REV. 115, 143 (2012).
177. Living wages should be set by the FPSE oversight agency.
178. Currently most Benefit Corporation statutes call for annual or biannual reports, which describe the progress of the entity in meeting their social and financial
objectives. In addition, Benefit Corporations must provide an assessment of their
pursuit of a public benefit against a third-party standard. Joseph W. Yockey, Does
Social Enterprise Law Matter?, 66 ALA. L. REV. 767, 783 (2014). In addition, the Social
Purpose Corporation Statute calls for the creation of an annual report that includes
financial statements and a Management Discussion and Analysis (“MD&A”) where
there is a discussion about the special purpose objectives as well as the actions taken
and the expenses incurred to achieve those special purpose objectives. Also, the
Social Purpose Corporation must send a special purpose current report to the
shareholders within forty-five days when the Social Purpose Corporation (1) makes
any expenditure of corporate resources in furtherance of the special purpose
objectives, (2) withholds any expenditures in furtherance of the special purpose, or
(3) determines that the special purpose has been satisfied or should no longer be
pursued. All reports must be made available on the entities’ websites and upon
request. Reports must be written in plain English. Jeremy Chen, What is a California
Summer 2016]
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381
reports should include the ratio of CEO hourly wages compared to
that of the average hourly wage of the lowest thirty percent of paid
employees.179 Annual reports should be created in accordance with
standards set forth by the later discussed FPSE Agency.180
Regulations should also include enforcement procedures in the form
of pseudo derivative suits that can be brought by stakeholders,
shareholders, and the FPSE Oversight Agency.181 Enforcement
procedures should include the possibility of consequential “claw
backs”182 and criminal consequences for those who are found to be in
purposeful violation of FPSE regulations. Finally, regulations should
state that the FPSE would cease to exist if the entity will no longer
pursue the same or a similar social mission. In such instance, the FPSE
Agency should be mandated to ensure the prompt distribution of
remaining funds to debt and shareholders. Ultimately, these
regulations would ensure that FPSE executives are, at the very least,
propelling their respective social missions, economically empowering
their employees, and are held responsible if they purposely stray from
FPSE regulations. In addition, these proposed regulations would
ensure that social investor money is being used for stated social
Social Purpose Corporation?, http://jeremychenlaw.com/what-is-a-california-social-pur
pose-corporation/ (last visited Mar. 18, 2016).
179. This is similar to section 953(b) of the Dodd-Frank Act, which requires that
companies disclose: (1) the median annual total compensation of all its employees,
except the CEO; (2) the annual total compensation of its CEO; and (3) the ratio of those
two amounts.
180. Yockey, supra note 178. Currently Benefit Corporations must provide an
assessment of their pursuit of public benefit through the use of a third party standard.
Third party standards could be the standards used by B-Lab or SASB standards.
181. Id. at 783–84. Currently, Benefit Corporation regulations include an enforcement proceeding which gives shareholders, directors, and beneficiaries the right to
bring an action against directors if they believe the director is acting in a manner that
does not align with the entity’s governance documents.
182. Similar to the “clawback” provisions in the Sarbanes-Oxley and Dodd Frank
acts, section 304 of the Sarbanes-Oxley Act requires that CEOs and CFOs reimburse
issuers for bonuses and profits on the sale of the issuer’s shares over the preceding
twelve months if the issuer restates its financial statements due to misconduct.
Section 954 of the Dodd-Frank Act of 2010 requires companies to establish policies to
recover incentive-based pay of any current or former executives awarded over the
three years prior to a restatement, regardless of whether there was misconduct.
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[Vol. XIII
purposes and that the funds will be returned if an entity chooses to
forgo its social mission endeavors.
2. FPSE Oversight Agency
The Securities Exchange Commission, U.S. State Department,
Internal Revenue Service (IRS), Secretary of State, and Federal Trade
Commission, ensure that the private and nonprofit sectors are in
compliance with their respective regulations. Similarly, the FPSE
sector should have an oversight agency (“Agency”) to ensure proper
operations within the FPSE sector and relieve the IRS of any FPSE
duties.183 Although, B Lab184 currently offers “B Corp Certifications”
to for-profit entities that meet their governance language
requirements, “B Corp Certifications” have no legal significance.185
Moreover, “B Corp Certifications” are mostly useful in terms of
informing the educated public about products and services that are
honestly offered in pursuit of a social purpose. While this a great
consumer protection endeavor, it falls short of providing official
government oversight.
The FPSE sector Agency should be
responsible for ensuring that all regulatory language is included in
governance documents, creating and maintaining a “whistleblower”
system, receiving and auditing annual financial reports, investigating
FPSEs in case of suspected malfeasance, extinguishing fraudulent
entities, ensuring that funds from extinguished entities are properly
distributed to debt and shareholders, and reporting criminal
violations to proper authorities. In addition, the Agency should take
over the IRS’s duties that are pertinent to FPSEs.186 Ultimately, the
FPSE sector Agency would ensure that all pertinent regulations are
183. Manoj Viswanathan, Form 1023-EZ and the Streamlined Process for the Federal
Income Tax Exemption: Is the IRS Slashing Red Tape or Opening Pandora’s Box?, 163 U.
PA. L. REV. 89, 93 (2014) (arguing that due to recent budget cuts to the already overworked and underfunded Tax-Exempt and Government Entities Unit of the IRS (“the
Unit”), the Unit has been further limited in its ability to adequately perform its
duties).
184. LANE, supra note 163, at 12.
185. Id.
186. For example, determining PRI eligibility for FPSEs.
Summer 2016]
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383
being met and that FPSEs are efficiently and honestly utilizing their
funding to propel their social missions. Once elected officials are
confident that FPSEs are properly regulated and have oversight, they
can use public policy to both enable the growth of the FPSE sector and
create a higher incentive for investment in the FPSE sector by
individuals.
B. Enabling the Creation and Growth of the FPSE Sector
Through Public Policy
In attempting to enable the creation, maintenance, and growth of
the FPSE sector, successful public policy must aim at incentivizing
Social Entrepreneurs, facilitating the sustainability and growth of
social enterprises, and incentivizing social investors. This threeprong approach will make it more likely that social entrepreneurs will
choose to create and maintain FPSEs and that social investors provide
sufficient funding for the creation and maintenance of FPSEs.
Moreover, it is likely that without a substantial response to any of the
three prongs, the FPSE sector will fail to amount enough momentum
to create a significant amount of social mobilization.
1. Incentivizing Social Entrepreneurs
FPSE public policy should incentivize individuals to create and
manage FPSEs. Potential social entrepreneurs might be apprehensive
about starting a FPSE because of the risk of low earnings. This
apprehension can be addressed by enacting public policy that will
counterbalance the potential for lower earnings. Although this issue
can be resolved through the use of a number of government spending
programs, tax expenditures187 will likely be the best solution. As such,
FPSE public policy can successfully incentivize social
187. Tax expenditures are “revenue losses attributable to provisions of the Federal tax laws which allow a special exclusion, exemption, or deduction from gross
income or which provide a special credit, a preferential rate of tax, or a deferral of tax
liability.” See Congressional Budget and Impoundment Control Act of 1974, Pub. L.
No. 93-344, § 3(3) (1974).
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[Vol. XIII
entrepreneurship via tax expenditures aimed at lowering the tax
liability of wages paid to executives and owners by FPSEs. For
instance, public policy can include preferred tax rates from the wages
and profit sharing earnings from FPSE revenue. Currently, the
individual tax rate for individuals is 39.6 percent.188 Therefore, tax
rates on earnings and wages from FPSEs should be less than current
tax rates on similar earnings but positioned strategically to incentivize
but not cause an unnecessary loss of revenue for the government.
Nevertheless, regardless of the chosen initiative, public policy should
be comprehensive and should attempt to holistically resolve
apprehensions caused by the potential for low earnings.
2. Enabling the Maintenance and Growth of For-Profit
Social Enterprises
In attempting to enable the creation, maintenance, and growth of
the FPSE sector, public policy should aim to alleviate the FPSE’s
burden of securing funding. In addition to the creation of FPSE
investment vehicles, public policy should attempt to facilitate the
obtainment of foundation funds and bank loans by FPSEs in the
following ways:
(1) Loan Guarantees: Loan guarantees are loans that are
secured by a third party. By issuing loan guarantees
instead of providing funding, guarantors can more
efficiently utilize their coffers as collateral.189 As a result,
guarantors are able to secure larger and more secure
amounts of funding for FPSEs.190 For instance, using Loan
Guarantees, a charter school in Houston was able to obtain
188. I.R.S., Employer’s Tax Guide 2016, https://www.irs.gov/pub/irs-pdf/p15.pdf
(Dec. 23, 2015).
189. Antony Bugg-Levine, Bruce Kogut & Nalin Kulatilaka, A New Approach to
Funding Social Enterprises: Unbundling Societal Benefits and Financial Returns Can Dramatically Increase Investment, HARV. BUS. REV. 5 (2012), https://hbr.org/2012/01/a-new-app
roach-to-funding-social-enterprises.
190. Id.
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385
$67 million in funding.191 Because the loan was guaranteed
by donors who were able to qualify for low rates, the
school and the donors saved almost $10 million in interest
payments.192
(2) Treasury Regulation on Program Related Investments
(PRIs): A PRI is a modest rate loan provided by a private
foundation to qualifying FPSEs.193 Private foundations are
501(c)(3) tax-exempt entities that primarily attempt to
accomplish their social purposes through the use of grants
or PRIs.194 Private foundations are required to distribute
at least five percent of their net value every year or else
they will be taxed on their remaining value.195 However,
many private foundations are apprehensive about
distributing funds in the form of PRIs because they are
prohibited from making jeopardizing investments.196 The
Treasury Department has made clear that PRIs are not
jeopardizing investments.197 However the definition of a
PRI as set forth by the Treasury Department’s regulation is
narrow and seems to ascertain that investments in FPSEs
are prohibited.198 In particular, the prong which states that
“no significant purpose of the investment is the
production of income or the appreciation of property” is a
191. Bugg-Levine et al., supra note 189.
192. Id.
194. Thompson, supra note 176, at 146.
195. 26 U.S.C. § 4942 (2015).
196. 26 U.S.C. § 4944(a)(1) (2015).
197. 26 C.F.R. § 53.4944-3(a)(1) (2016).
198. “A PRI is an investment made by a private foundation to a nonprofit or forprofit entity that complies with the three following requirements: (1) the primary
purpose of the investment is to accomplish one or more charitable, educational,
religious or other exempt purposes under Section 170(c)(2)(B) of the IRC; (2) no
significant purpose of the investment is the production of income or the appreciation
of property; and (3) no purpose of the investment is to lobby, support or oppose
candidates for public office, or to accomplish any other political purposes forbidden
to private foundations by Section 170(c)(2)(D) of the IRC.” 26 C.F.R. § 53.49443(a)(1)(i)–(iii).
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[Vol. XIII
barrier to foundations that are afraid that their PRI to a
FPSE will be deemed a jeopardizing investment because it
has a significant potential of creating income for the
foundation. Although the Treasury regulations provide
specific examples that delineate that providing PRIs to
FPSEs in urban locations are not jeopardizing investments,
the Treasury Department should aim to better clarify and
broaden its regulation.199 This can be done by amending
the Treasury Department regulations to explicitly state
that PRIs made to FPSEs in good standing with the FPSE
Agency will not be deemed as jeopardizing investments,
and will be taken into consideration when calculating the
foundation’s distribution amount at the end of the year.
(3) Program Related Investment Eligibility Determinations:
Under the existing policy, the loan provider is responsible
for obtaining a ruling from the IRS, certifying that the FPSE
has met the criteria to be eligible to receive the PRI.200 This
process has resulted in the substantial limitation of PRI
funding to FPSEs.201 Public policy should aim to facilitate
the receipt of PRI eligibility confirmation in the following
three ways: First, the FPSE Agency should be responsible
for PRI eligibility determinations. This would streamline
the process by easing the burden of determination from
the IRS, which is inundated with an abundance of other
matters.202 Second, FPSEs should be able to request and
receive their own PRI eligibility determinations, instead of
having to rely on the private foundation. Lastly, PRI
eligibility determinations should be valid for at least 6
months and should be accepted by all private foundations
for all PRI funding determinations during that time
period. This would alleviate the FPSE’s need to acquire a
PRI eligibility determination every time it is seeking
199.
200.
201.
202.
Thompson, supra note 176, at 148.
Id.
Id.
Viswanathan, supra note 183.
Summer 2016]
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387
funding from a private foundation.
In addition to facilitating the procurement of loans, public policy
should ensure that FPSEs are allowed to keep a sufficient amount of
their generated revenue. Since FPSEs will utilize a large amount of
their revenues to support their operations and social mission, FPSEs
would greatly benefit from a lowered tax liability. Public policy to
lower the tax liability of FPSEs can come in the form of tax
expenditures. For instance, public policy can provide for a lower
corporate tax rate for revenue produced by FPSEs. Currently,
corporate tax rates are capped at thirty-five percent.203 Therefore, in
order to offset the potential costs of operations and higher employee
compensation, FPSE corporate tax rates should be less than current
tax rates and strategically positioned to mitigate the higher costs of
employee compensation and operations of FPSEs. In addition, a tax
expenditure can come in the form of a deduction or a credit for the
costs of complying with regulatory reporting mandates or other costs
incurred in relation to adhering to FPSE regulations.
Finally, public policy must ensure that the government becomes
a direct ally to the FPSE sector. Previously proposed public policy
encouraged the federal government to utilize the goods and services
of FPSEs.204 While this proposed piece of legislation aims at informing
the federal government of the existence of FPSEs, this proposed public
policy does not go far enough. Instead, public policy would be more
efficiently deployed if it mandated that the federal government
employ the services of FPSEs when the costs of using the good or
service are not higher than similarly positioned competitors. As a
result, FPSEs would obtain a greater amount of government contracts,
which would help produce revenue that would be used to maintain
and grow the operations of FPSEs.
3. Incentivizing Social Investment
Perhaps the greatest and most important task will be to create
203. See DELOITTE, CORPORATE TAX RATES 2015 (Aug. 2015), https://www2.deloitte.
com/content/dam/Deloitte/global/Documents/Tax/dttl-tax-corporate-tax-rates-2015.pdf.
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[Vol. XIII
enticing investment opportunities for social investors. Although
different sources provide that United States social investment funds
total $50 billion, $600 billion, $1 trillion, and $6.57 trillion, these
figures demonstrate that there is a viable funding source for FPSEs.
However, only a portion of this money is being acquired by FPSEs
because there is a lack of FPSE investment opportunities. In fact, one
source estimates that only about eight percent of total social
investment money was used each year.205 In order to enable the
growth of the FPSE sector with the funding from private investors, it
is important that enacted public policy attempt to mainstream FPSE
investment opportunities. Further, public policy should promote the
following investment vehicles to facilitate investment in FPSEs and
create attractive investment opportunities:
(1) Social Investment Bonds (SIBs): These are bonds that are
purchased by private investors to fund the missions of
FPSEs.206 The bonds are later repaid by the government if
the project is deemed successful under specific metrics.207
These metrics will likely include a dual mission: 1)
alleviate a social issue and 2) save the government
money.208 In addition, if the social program is especially
successful, the private investor will receive an additional
amount of money on top of their original funding.209 SIBs
are appealing to investors because it allows them to take
calculated risks in pursuit of profit.210 In addition, SIBs are
beneficial to the government because they place the risk on
the private investor and the government only pays if the
project is successful.211 We have already seen a successful
SIB initiative in Massachusetts, where private investors
205.
206.
Investing
238.
207.
208.
209.
210.
211.
Bugg-Levine et al., supra note 189, at 7.
Bhagwan Chowdhry, Shaun W. Davies & Brian Waters, Incentivizing Impact
1 (Aug. 25, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2437
Chowdhry et al., supra note 206.
Id.
Chowdry et al., supra note 206.
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389
invested $12 million to provide employment training for
at-risk young men.212 The state will have to repay the
bonds if in five years the program reduces re-incarceration
rates by forty percent.213
(2) Social Impact Guarantees (SIGs): Like SIBs, SIGs use
private investment money to fund social projects.214
However, in contrast to SIBs, the funding must be repaid
if the project fails to reach specified goals.215 In other
words, the investor will reward the party responsible for
repayment by forgiving the repayment or reducing the
amount owed if they obtain certain results.216
(3) Quasi-Equity Debt (QED): QED has principles of both
equity and debt securities.217 It is, for all intents and
purposes, a debt; however, its returns are based on the
entity’s financial performance.218 Although the investor
has no voting rights, the conditions of the debt are
methodically designed to incentivize the efficient and
profitable operation of the entity.219
With the enactment of public policy that will create these and
other FPSE investment vehicles, investors will have additional
avenues to pursue, which promise to provide low, but safe, returns.220
As a result, investors are likely to more often include FPSE investment
in their portfolios.221 Investors and the financial markets stand to gain
from the creation of these FPSE investment vehicles, as they will be
able to obtain additional returns from new kinds of services and
goods.222
212.
213.
214.
215.
216.
217.
218.
219.
220.
221.
222.
Chowdry et al., supra note 206.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 6.
Id.
Id.
390
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[Vol. XIII
In addition to the creation of social investment vehicles, public
policy can also use tax expenditures as a means of incentivizing social
investment. For instance, FPSE public policy can create special tax
rates for returns from FPSE investments. Public policy can call for
FPSE tax credits, FPSE deductions, and partial exclusions. Ultimately,
public policy must not only aim to facilitate investment by current
social investors but must also attempt to convert new social investors.
The FPSE sector will need the support of a mass coalition of private
investors if it is to thrive and create a significant amount of social
mobility.
Conclusion
This Note has argued that, either through failure or deliberate
action, the three existing sectors of the American market have enabled
the creation of record-high income inequality rates. Moreover, these
synthetically created high rates of income inequality have led to low
rates of social mobility, which have been especially troublesome for
marginalized communities. Consequently, a fourth sector is needed
in order to directly alleviate this lack of social mobility. In addition to
expanding and solidifying the current regulatory schemes for FPSE
entities, public policy should aim at incentivizing entrepreneurs,
maintaining and growing the FPSE sector, and incentivizing social
investing. Ultimately, with the help of public policy and access to
proper funding from private social investors, the FPSE sector has the
potential of creating significant social mobilization amongst those
who are most vulnerable to current market conditions.
7 KOWALSKI_MACRO_FINAL.DOCX (DO NOT DELETE)
4/27/2016 4:23 PM
Niños, Niñas y Adolescentes in Guatemala:
Reflections on the Implementation of the
Ley PINA
STACY KOWALSKI
Quizás no hay indicadores sociales más claros sobre el desarrollo de un
país que aquellos referidos a la niñez, en ellos se traslucen la salud o la
enfermedad de un pueblo, en ellos quedan claramente reflejados los equilibrios
o desequilibrios de una sociedad.
Perhaps there are no social indicators more clear regarding a
country’s development than those related to children; in them we see
the health or sickness of a people, in them we can see clearly reflected
the equilibriums or disequilibriums of a society.1

University of California, Hastings College of the Law, J.D. Candidate, 2016. I
would like to extend my sincere gratitude to the HRPLJ staff for all of their time and
effort making thoughtful edits and suggestions to this Note. It has been such a
pleasure working with you all this year. To Liliana García, I am so grateful for all of
the work you put into helping me with this Note, and for your endless patience. It
has been a true privilege working with you this year. A very special thank you to
Professor Karen Musalo, not only for her help and guidance with this Note, and in
the Refugee & Human Rights Clinic, but for being such an inspiration, an example to
aspire to, and a teacher I have learned so much from. To Alexandra Wilson, my
partner on this project, my colleague, and my great friend, it has been such a gift to
work with you over these years, and I am so grateful for all of the blood, sweat, and
tears you poured into this project. To Carol Bisharat, I truly loved working with you,
and I am very thankful for all of your work and your help.
1. This quote is from Monseñor Juan José Gerardi, who created the Office of
Human Rights for the Archdiocese of Guatemala (Oficina de Derechos Humanos del
Arzobispado de Guatemala, or ODHAG) and was a prominent figure in human rights
advocacy during Guatemala’s civil war. Two days after publishing Guatemala: Nunca
Más, the first truth commission report, which attributed more than ninety percent of
the war’s atrocities to the Guatemalan military, Monseñor Gerardi was bludgeoned
to death in his garage by three members of the military. The report was part of
[391]
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[Vol. XIII
Introduction
In 2014, the number of unaccompanied migrant youth entering
the United States—fleeing primarily from Mexico and the so-called
“Northern Triangle” (Guatemala, Honduras, El Salvador)—more
than doubled.2 In June of that year, President Obama declared this
“surge” an “urgent humanitarian crisis” and created a taskforce to
coordinate a national response.3 In addition, Obama asked Congress
to allot more than $1 billion to help house, feed, and transport these
children.4
U.S. politicians, media outlets, scholars, and advocacy groups
attempted to explain the reason behind the increased flight. Many of
these commentators cited violence, reunification with family living in
the United States, and poverty as the principal reasons that children
and adolescents chose to take the dangerous trek alone from Central
America.5 The White House, for example, claimed that “instability”
ODHAG’s Recovery of Historical Memory Project (Proyecto Interdiocesano de
Recuperación de la Memoria Histórica). Ming Zhu, Power and Cooperation: Understanding
the Road Towards a Truth Commission, 15 BUFF. HUM. RTS. L. REV. 183 (2009). Nowousted former President Pérez Molina has been accused of orchestrating the murder.
Francisco Goldman, From President to Prison: Otto Pérez Molina and a Day for Hope in
Guatemala, NEW YORKER (Sept. 4, 2015), http://www.newyorker.com/news/newsdesk/from-president-to-prison-otto-perez-molina-and-a-day-for-hope-in-guatemala.
See also New Evidence Suggests Guatemalan President Played Role in 1998 Murder of
Human Rights Activist Bishop Juan Gerardi, DEMOCRACY NOW! (Oct. 31, 2007), http://
www.democracynow.org/2007/10/31/new_evidence_suggests_guatemalan_presiden
tial_candidate.
2. Seventy-four percent of unaccompanied migrant youth entering the United
States between January and June 2014 originated from Mexico, Guatemala,
Honduras, and El Salvador. Ian Gordon, 70,000 Kids Will Show Up Alone at Our Border
This Year. What Happens to Them? MOTHER JONES (July/Aug. 2014), http://www.mo
therjones.com/politics/2014/06/child-migrants-surge-unaccompanied-central-america.
3. Id.
4. Marissa Cabrera, Maureen Cavanaugh, & Amita Sharmaand, Obama: Child
Migrants Urgent Humanitarian Issue, KPBS (June 3, 2014), http://www.kpbs.org/news/
2014/jun/03/obama-child-migrants-urgent-humanitarian-issue/.
5. Diana V. Negroponte, The Surge in Unaccompanied Children from Central America: A
Humanitarian Crisis at Our Border, BROOKINGS INST. (July 2, 2014), http://www.brookings.edu
/blogs/up-front/posts/2014/07/02-unaccompanied-children-central-america-negroponte;
Summer 2016]
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in these countries explained the surge.6 The United Nations High
Commissioner for Refugees (UNHCR) pointed to the false promises
made to desperate families by trafficking rings of coyotes, who
promised that if paid enough, they could get the children to the
United States where they would be granted permission to stay due to
a relaxed immigration policy.7 Vice President Joe Biden traveled
around Central America to squash these rumors, threatening to “send
the vast majority of you back,” despite the fact that UNHCR estimated
that at least fifty-eight percent of these youth “were forcibly displaced
because they suffered or faced harms that indicated a potential or
actual need for international protection.”8
In October 2014, the Refugee and Human Rights Clinic at the
University of California, Hastings College of the Law, in collaboration
with the Center for Gender and Refugee Studies, sent a delegation of
attorneys and law students to understand the major issues children
and adolescents in Guatemala face, and to understand why
Guatemala’s legislative and policy efforts aimed at the protection of
children and adolescents have largely failed.9 Those in the 2014
delegation interviewed government officials, and representatives of
non-governmental organizations (NGOs) and the United Nations
who work to protect children and adolescents in Guatemala.10 The
Danielle Renwick, The U.S. Child Migrant Influx, COUNCIL ON FOREIGN RELATIONS
(Sept. 1, 2014), http://www.cfr.org/immigration/us-child-migrant-influx/p33380;
Haeyoun Park, Children at the Border, N.Y. TIMES (Oct. 21, 2014), http://www.nytimes.
com/interactive/2014/07/15/us/questions-about-the-border-kids.html.
6. Under-Age and on the Move, ECONOMIST (June 28, 2014), http://www.economist.
com/news/briefing/21605886-wave-unaccompanied-children-swamps-debate-over-immi
gration-under-age-and-move.
7. Id.
8. Id; U.N. HIGH COMM’R FOR REFUGEES, CHILDREN ON THE RUN: UNACCOMPANIED
CHILDREN LEAVING CENTRAL AMERICA AND MEXICO AND THE NEED FOR INTERNATIONAL
PROTECTION 31 (Mar. 2014), http://www.unhcrwashington.org/sites/default/files/1_
UAC_Children%20on%20the%20Run_Full%20Report.pdf.
9. The author participated in the delegation.
10. The interviews conducted include:
Interview with Byron Ruben Alvarado Fuentes, Exec. Subsecretary of the Nat’l
Comm’n on Children & Adolescents (Subsecretario Ejecutivo, Comisión Nacional de la
Niñez y de la Adolescencia, or CNNA).
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[Vol. XIII
information contained in this Note draws on these primary sources,
as well as secondary sources such as publications from government
offices, human rights organizations, and international organizations.
As such, the opinions and criticisms expressed in this Note represent
those of child advocates in Guatemala, rather than those of the author.
This Note attempts to understand the situation specific to
Guatemalan children and adolescents. It seeks to understand what
Jean Paul Briere Samoya, Congressman & Chairman of the Comm’n on Migration
(Diputado y Presidente de la Comisión de Migración, Congreso de la República).
Gloria Castro, Ombudsman for Children & Adolescents, Office of the Human
Rights Ombudsman (Defensora de la Niñez y Adolescencia, Procuraduría de Derechos
Humanos, or PDH); Sandra Gularte, Ombudsman for Victims of Trafficking, Office of
the Human Rights Ombudsman (Defensora de Víctimas de Trata, PDH); Aura Beatriz
Sosa, Assistant Ombudsman of Migrant Populations, Office of the Human Rights
Ombudsman (Auxiliar de la Defensoría de la Población Migrante, PDH).
Alex Colop, Head Prosecutor of the Office of the Prosecutor Against Human
Trafficking (Fiscal Encargado de la Fiscalía Contra la Trata de Personas).
José Cortés Chacón, Subsecretary for the Secretariat Against Sexual Violence &
Trafficking (Subsecretaría, Secretaría Contra la Violencia Sexual y Trata de Personas or
SVET).
Leonel Asdrubal Dubón Benfeldt, Exec. Dir., El Refugio de la Niñez.
Emma Galindo, Nat’l Child Consultant, Plan International (Asesora Nacional de
Protección, Plan Internacional).
Vilma Gonzáles, Head Juvenile Prosecutor, Public Ministry (Fiscal, Fiscalía del
Menor o de la Niñez, Ministerio Público).
Golda Ibarra, Dir. of the Migrant Children’s Program, Office of the Sec’y of Soc.
Welfare (Directora del Programa Niñez Migrante, Secretaría de Bienestar Social).
Judge in the First Instance Court for Adolescents in Conflict with the Law
(requested anonymity) (Juez, Juzgado de Primera Instancia de Adolescentes en Conflicto
con la Ley Penal).
Nery Rodenas, Exec. Dir., Human Rights Office of the Archbishop of Guat.
(Director Ejecutivo, Oficina de Derechos Humanos del Arzobispado de Guatemala, or
ODHAG).
Julio Ságüil, Attorney at the Office of the Nat’l Gen. Procurator, Children &
Adolescent Division (Procurador, Procuraduría de la Niñez y Adolescencia de la Procurador
General de la Nación).
Estuardo Sánchez, Adviser for Child Protection (Consultor de la Protección de la
Niñez), UNICEF.
Ines Tobar Cruz, Attorney, Multidisciplinary Team, Nat’l Comm’n on Adoptions
(Abogada, Equipo Multidisciplinario, Comisión Nacional de Adopciones, or CNA).
María Eugenia Villarreal, Dir. of ECPAT Guat. (End Child Prostitution, Child
Pornography, and Trafficking of Children for Sexual Purposes).
Summer 2016]
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395
steps the Guatemalan government has taken to protect its children
and adolescents, and why these efforts have not effectively improved
the situation of children and adolescents. Part One of this Note
introduces the historical context of the Guatemalan civil war. Part
Two discusses the principal human rights violations that children and
adolescents in Guatemala face. Part Three sets forth the current
Guatemalan legal framework aimed at protecting its youth, and the
ways these efforts have been effective and ineffective, both as a result
of the way in which these laws were drafted, and due to a lack of
implementation. Finally, Part Four addresses possibilities for
improvement in the protection of children’s rights in Guatemala.
I. Historical Context of the Guatemalan Civil War
In 1954 the United States worked to support and direct
Guatemalan military leaders to overthrow the democratically elected
Jacobo Arbenz government, thwarting a ten-year effort to build a
democratic Guatemala.11 U.S. actions were motivated by fear that
Arbenz posed a threat to U.S. investments in the country, as the
centerpiece of United Fruit’s “banana republics;”12 to U.S. bank loans
to the Guatemalan government; and to U.S. control of the region due
to Arbenz’s support from the communist bloc.13 Five decades of
repressive governments followed the coup.14 The Guatemalan civil
war was Latin America’s longest and most violent civil war, lasting
11. Mark Gibney, United States’ Responsibility for Gross Levels of Human Rights
Violations in Guatemala from 1954 to 1996, at 7 J. TRANSNAT’L L. & POL’Y 77, 84–85 (1997).
12. Id. at 82; see also PETER CHAPMAN, BANANAS: HOW THE UNITED FRUIT COMPANY
SHAPED THE WORLD (Canongate 2007).
13. Stephen Kinzer, Ideas and Trend: Iran and Guatemala, 1953-54; Revisiting Cold
War Coups and Finding Them Costly, N.Y. TIMES (Nov. 30, 2003), http://www.nytimes.
com/2003/11/30/weekinreview/ideas-trends-iran-guatemala-1953-54-revisiting-coldwar-coups-finding-them.html; David M. Barrett, Sterilizing a “Red Infection”: Congress,
the CIA, and Guatemala, 1954, U.S. CENTRAL INTELLIGENCE AGENCY (Aug. 3, 2011, 02:53
PM), https://www.cia.gov/library/center-for-the-study-of-intelligence/kent-csi/vol44
no5/html/v44i5a03p.htm; SUSANNE JONAS, THE BATTLE FOR GUATEMALA: REBELS, DEATH
SQUADS, AND U.S. POWER 30 (Latin Am. Perspectives Series 1991).
14. Barrett, supra note 13.
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more than three decades and leaving 200,000 dead, many of whom
were peasants killed by Guatemalan forces,15 with Mayans
constituting the vast majority of the victims.16 In the 1970s, the Mayan
population protested the repressive policies of the government.17 In
response, the Guatemalan army began targeting the Mayan
population which was purported to be supporting the guerrilla
soldiers, in what was known as “Operation Sofía.”18 More than 600
villages were destroyed, 1.5 million people were displaced, raped,
tortured, and starved, and 50,000 were “disappeared” during
Operation Sofía.19 Furthermore, the army carried out its “scorched
earth” policy, which killed crops and livestock, and left water sources
contaminated.20 The civil war ended with United Nations-brokered
peace accords signed in 1996 between the Guatemalan government
and the guerrilla group, the Guatemalan National Revolutionary
Unity (Unidad Revolucionaria Nacional Guatemalteca, or URNG).21
The accords directed the United Nations to form a Commission
of Historical Clarification (Comisión de Esclarecimiento Histórico, or
CEH) whose mandate was to clarify human rights violations between
1960 and 1996.22 The CEH found that the Guatemalan government
had committed genocide against four specific groups: the Ixil Mayas,
15. Elisabeth Malkin, An Apology for a Guatemalan Coup, N.Y. TIMES (Oct. 20,
2011), http://www.nytimes.com/2011/10/21/world/americas/an-apology-for-a-guate
malan-coup-57-years-later.html?_r=0.
16. Susanne Jonas, Guatemalan Migration in Times of Civil War and Post-War
Challenges, MIGRATION POL’Y INST. (Mar. 27, 2013), http://www.migrationpolicy.org/
article/guatemalan-migration-times-civil-war-and-post-war-challenges.
17. Genocide in Guatemala (1981-1983), HOLOCAUST MUSEUM HOUSTON, https://
www.hmh.org/la_Genocide_Guatemala.shtml (last visited Feb. 18, 2016).
18. Id.
19. Id. Guatemala was the first country in Latin America to experience phenomena
such as death squads and forced disappearances, which became common tactics in
counterinsurgency wars throughout the region. Gibney, supra note 11, at 80 (citation
omitted).
20. HOLOCAUST MUSEUM HOUSTON, supra note 17.
21. Id. See also Truth Commission: Guatemala, U.S. INST. OF PEACE, http://www.
usip.org/publications/truth-commission-guatemala (last visited Apr. 20, 2016).
22. HOLOCAUST MUSEUM HOUSTON, supra note 17; U.S. INST. OF PEACE, supra note
21.
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397
the Q’anjob’al and Chuj Mayas, the K’iche’ Mayas, and the Achi
Mayas.23 Several military commissioners, generals, and soldiers were
found guilty of genocide and crimes against humanity.24 In spite of
these efforts, the relics of the civil war still have a strong presence in
Guatemala.
In 2012, Guatemalan Attorney General Claudia Paz y Paz, as
then-head of the Public Ministry (Ministerio Público, or MP), initiated
prosecution against the U.S.-backed former dictator from 1982 to 1983,
José Efraín Ríos Montt.25 The prosecution was seen as a break from
centuries of virtual impunity when the justice system was heavily
influenced by the political, business, and criminal elites.26
During the trial, supporters for Ríos Montt who were funded by
the Foundation Against Terrorism, a group of current and former
members of the military, initiated a campaign using newspaper
propaganda to discredit the prosecution, the Catholic Church, human
rights defenders, and denied any existence of the genocide.27 In a
move to preclude Paz y Paz from directing her team of prosecutors to
carry forward with the trial, corporate lawyer Ricardo Sagastume,
whose father was president of the Supreme Court during Ríos Montt’s
tenure, successfully argued that she be removed from office seven
months early, despite her numerous international accolades,
including a nomination for the 2013 Nobel Peace Prize.28 Paz y Paz
applied for reelection and received the nominating committee’s
second-highest ranking but was ultimately excluded from the short
list of six candidates approved for the April 2014 election.29 The
23. HOLOCAUST MUSEUM HOUSTON, supra note 17; U.S. INST. OF PEACE, supra note
21.
24. Id.
25. Lauren Carasik, Ríos Montt Edges Closer to Escaping Accountability for Genocide,
AL JAZEERA (Nov. 14, 2013), http://america.aljazeera.com/opinions/2013/11/rios-mon
tt-guatemalagenocidetrial.html.
26. Nina Lakhani, Claudia Paz y Paz Ousting Puts Spotlight on Guatemalan Justice
System, GUARDIAN (Feb. 19, 2014), http://www.theguardian.com/global-development/
poverty-matters/2014/feb/19/claudia-paz-y-paz-guatemala-justice-system.
27. Id.
28. Id.
29. Elisabeth Malkin, Attorney General in Guatemala Excluded From Re-Election Bid,
N.Y. TIMES (Apr. 30, 2014), http://www.nytimes.com/2014/05/01/world/americas/attor
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continuation of the Ríos Montt trial was postponed until 2015, after
Paz y Paz’s tenure as Attorney General expired.30
Ultimately, in May 2013, Ríos Montt was found guilty of
genocide and crimes against humanity, marking the first time a
former head of state was convicted of genocide in a national court.31
Ten days after Ríos Montt’s conviction, Guatemala’s Constitutional
Court annulled the eighty-year sentence.32 The head of Ríos Montt’s
defense team, Francisco García, was twice expelled after accusing the
judges of bias and demanding their dismissal.33 When the remainder
of Ríos Montt’s defense team walked out of the courtroom in protest,
the court ordered that he be represented by a public defender.34 When
Ríos Montt rejected appointed counsel, the court carried on with the
trial.35 The half-day that Ríos Montt spent without an attorney
resulted in an annulment of the eighty-year sentence due to
“procedural error.”36
Ríos Montt was then retried. Ríos Montt’s defense team
unsuccessfully argued that the former dictator was too ill to attend the
retrial. With Ríos Montt entering the courtroom wheeled in on a
gurney the January 5, 2015 retrial was ultimately suspended because
his defense team successfully argued for the main judge to recuse
herself for having written her master’s thesis a decade ago on the topic
of genocide.37 Ríos Montt was then ordered to stand before a special
ney-general-in-guatemala-excluded-from-re-election-bid.html. The nominating committee is comprised of eleven law school deans, two members of the bar association,
and the president of the Supreme Court. Malkin, supra.
30. Carasik, supra note 25.
31. Id.
32. Former Guatemala Dictator Faces Genocide Retrial, AL JAZEERA (Jan. 5, 2015),
http://america.aljazeera.com/articles/2015/1/5/former-guatemaladictatorfacesgenocide
retrial.html.
33. Guatemala Annuls Rios Montt’s Genocide Conviction, BBC (May 21, 2015), http://
www.bbc.com/news/world-latin-america-22605022.
34. Id.
35. Id.
36. Id.
37. José Elías, El Juicio a Ríos Montt Aviva la División en Guatemala, EL PAÍS (Spain)
(Jan. 8, 2015), http://internacional.elpais.com/internacional/2015/01/08/actualidad/142
0752035_263308.html.
Summer 2016]
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399
retrial in which all evidence and witnesses would be presented behind
closed doors. Regardless of any conviction, however, he will likely
not be sentenced after the Guatemalan National Institute of Forensic
Science (Instituto Nacional de Ciencias Forenses de Guatemala, or
INACIF) declared Ríos Montt incompetent to stand trial because of
senile dementia.38 His defense attorneys unsuccessfully appealed to
excuse him from criminal prosecution under the country’s postwar
amnesty law.39 The trial was set to begin in January 2016,40 but was
again suspended indefinitely so that the court may resolve
outstanding legal petitions.41 The failed prosecution of Ríos Montt is
an example of the consistent political interference in the court system,
which has cast doubt on the once hopeful expectation for justice for
the atrocities committed during the civil war.42
38. INACIF Dictamina: Efraín Ríos Montt Padece Demencia Senil, EL PERIÓDICO
(Guatemala) (July 7, 2015), http://elperiodico.com.gt/2015/07/07/pais/inacif-dictami
na-efrain-rios-montt-padece-demencia-senil/; Associated Press, Guatemala Court: Former Dictator Can Be tried for Genocide – But Not Sentenced, GUARDIAN (Aug. 25, 2015),
http://www.theguardian.com/world/2015/aug/25/guatemala-rios-montt-genocidetrial-not-sentenced.
39. Alto Comisionado ONU Ve Como Precendente el Rechazo de Amnistía a Ríos Montt,
LA VANGUARDIA (Spain) (Oct. 10, 2015), http://www.lavanguardia.com/interna
cional/20151010/54438020891/alto-comisionado-onu-ve-como-precedente-el-rechazo-deamnistia-a-rios-montt.html. See Decreto-Ley 8-86 (Decree 8-86) (Guatemala) (granting
amnesty to any person responsible for political offenses and related practices
committed between March 1982 and January 1986).
40. Guatemala: Court Ruling on Ríos Montt’s Case Highlights Flaws in Justice System,
AMNESTY INT’L (Aug. 25, 2015), https://www.amnesty.org/en/latest/news/2015/08/
guatemala-court-ruling-on-rios-montt-s-case-highlights-flaws-in-justice-system/.
41. Jorge D. Lopez, Genocide Trial for Guatemala Ex-Dictator Rios Montt Suspended,
REUTERS (Jan. 11, 2016), http://www.reuters.com/article/us-guatemala-trial-idUSKCN0U
P21F20160111.
42. Justice Confused, ECONOMIST (Jan. 10, 2015), http://www.economist.com/news
/americas/21638190-trial-ailing-ex-dictator-plagued-chaos-justice-confused.
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[Vol. XIII
II. Current Conditions for Children43 in Guatemala:
Violence Against Children and Adolescents in
Guatemala Is Widespread, and Indicative of
Attitudes that Carry On Decades After the
Conclusion of the Civil War.
Children in Guatemala face many different forms of violence,
including: gender-based violence, emotional and psychological
violence, negligence and abandonment, and sexual violence.44
Poverty, lack of economic and educational opportunities, and high
rates of malnutrition are not unique to Guatemala yet they contribute
to the high levels of violence in Guatemala. This Part explores only
those sources and levels of violence unique to Guatemala.
A. Post-Conflict Violence
Twenty years after the peace accords were signed, Guatemala
still struggles to protect its most vulnerable populations. It is
important to pause and note that anthropologists find that
Guatemala’s
[v]iolence seems a symptom of historically shaped
conditions and structural problems (e.g., a legacy of state
violence, deep socioeconomic inequality, the penetration
43. Under the Convention on the Rights of the Child, a child is defined as any
human being below the age of eighteen years old. Convention on the Rights of the
Child art. 1, Sept. 2, 1990, 28 ILM 1456, 1577 U.N.T.S. 3. Guatemalan law refers to
boys, girls, and adolescents (niños, niñas y adolescentes), with boys and girls defined as
a person from conception until the age of thirteen, and adolescents as those from
thirteen up to eighteen years old. Law for the Comprehensive Protection of
Childhood and Adolescence (Ley de la Protección Integral de la Niñez y Adolescencia),
Decreto 27-2003 (Decree 27-2003) art. 2 (Guatemala) [hereinafter Ley PINA]. For
purposes of this Note, “children” will generally be used to refer to individuals under
the age of eighteen. If reference is made specifically to adolescents, it is referring only
to those individuals between the ages of thirteen and seventeen.
44. Interview with María Eugenia Villarreal, Dir. of End Child Prostitution,
Child Pornography, & Trafficking of Children for Sexual Purposes (ECPAT) Guat., in
Guatemala, Guat. (Oct. 22, 2014) (on file with author).
Summer 2016]
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401
of extractive industries, the erosion of political and social
infrastructures, and disparate access to health care,
education and life chances) rather than simply the
product of itinerant youth, organized crime, and/or other
stereotyped and pathologized subsets of the population.45
One such contributing factor to the violence in the country today
is the legacy of the Mayan genocide in Guatemala.46 Some of the
illegal groups and clandestine death squads that developed during
the civil war and were supported by the State to carry out politicalmilitary missions have evolved into organized criminal networks.47
Many of those who were soldiers during the war are now private
security guards, and the tactics of sexual violence the State trained its
soldiers to carry out during the war continue to this day, including
rape, dismemberment, torture, and mutilation.48 Additionally, the
Guatemalan government has not sufficiently responded to
clandestine groups that participate in illicit activity, including the sale
of black-market goods, kidnapping, and the trafficking of weapons,
narcotics and people.49
45. Peter Benson, Edward F. Fischer & Kedron Thomas, Resocializing Suffering:
Neoliberalism, Accusation, and the Sociopolitical Context of Guatemala’s New Violence, 35
LATIN AM. PERSP. 38, 50 (2008).
46. BEATRIZ MANZ, WRITENET (Commissioned by U.N. High Comm’r for
Refugees, Status Determination & Prot. Info. Section), CENTRAL AMERICA: PATTERNS
OF HUMAN RIGHTS VIOLATIONS 2 (2008), http://www.refworld.org/pdfid/48ad1eb72.
pdf.
47. ADRIANA BELTRÁN, WASH. OFF. ON LATIN AM., THE CAPTIVE STATE: ORGANIZED
CRIME AND HUMAN RIGHTS IN LATIN AMERICA 2 (2007).
48. The International Violence Against Women Act: Could IVAWA Save Guatemala
from Femicide?, COUNCIL ON HEMISPHERIC AFF. (Aug. 5, 2010), http://www.coha.org/theinternational-violence-against-women-act-could-ivawa-save-guatemala-from-femicide/.
There are extensive issues with the private security forces in the country. The State
has not been capable of handling the country’s high levels of violence. The lack of
public security has become big business for these private companies. There are now
four times as many private security guards in Guatemala as there are police officers.
This creates a system of security for those who can afford it because the State cannot
handle the violence on its own. ODHAG, SITUACIÓN DE LA NIÑEZ GUATEMALTECA,
INFORME 2012-2013, at 30 (2014), http://www.odhag.org.gt/pdf/Informeninez2012
2013.pdf [hereinafter ODHAG INFORME NIÑEZ 2012-2013].
49. COUNCIL ON HEMISPHERIC AFF., supra note 48; ODHAG INFORME 2012-2013,
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[Vol. XIII
Violence due to political corruption is still ever-present.50 Despite
the creation of the United Nations International Commission against
Impunity in Guatemala (Comisión Internacional Contra la Impunidad en
Guatemala, or CICIG),51 intimidation and corruption among justice
system officials remains high.52 Impunity also pervades the judicial
system: the Council on Hemispheric Affairs reports that ninety-eight
percent of crimes and offenses committed in Guatemala are met with
impunity.53 These high levels of impunity greatly affect children and
adolescents, and their ability to assert their rights.
B. Cultural Norms Contribute to High Levels of Impunity
While the relics of the war continue to affect the country, an array
of long-held cultural attitudes and modern issues contribute to the
violence and instability that particularly affects Guatemalan children
and adolescents. Fifty-one percent (7.5 million) of the population of
Guatemala is under the age of eighteen.54 An estimated two out of
supra note 48, at 30.
50. For example, fifty-one people were murdered in the 2007 election. MIRANDA
LOUISE JASPER & COLLEEN W. COOK, CONG. RESEARCH SERV., RS 22727, GUATEMALA:
2007 ELECTIONS AND ISSUES FOR CONGRESS 3 (2008), http://www.fas.org/sgp/crs/row/RS
22727.pdf.
51. See CICIG, http://www.cicig.org/index.php?page=about (last visited Feb. 8,
2016).
52. HUMAN RIGHTS WATCH, WORLD REPORT 2014: GUATEMALA (2014), http://www.
hrw.org/world-report/2014/country-chapters/guatemala. The mere existence of
CICIG, unprecedented by the UN, or any other international organization,
demonstrates the extent of current and historical levels of impunity in Guatemala.
CICIG works similarly to an international prosecutor but in Guatemalan courts and
under Guatemalan law, trying cases against organized criminal networks. The power
these criminal networks hold in Guatemala, and the impunity under which they
operate, is considered to be a major impediment to the stability of the country. See
ABOUT CICIG, http://cicig.org/index.php?page=about (last visited Jan. 17, 2016).
53. Cameron McKibben, Corruption, Impunity, and the International Commission
Against Impunity in Guatemala, COUNCIL ON HEMISPHERIC AFF. (Apr. 30, 2015), http://www.
coha.org/corruption-impunity-and-the-international-commission-against-impunity-in-g
uatemala/.
54. UNICEF & INSTITUTO CENTROAMERICANO DE ESTUDIOS FISCALES, ¡CONTAMOS!
ANALISIS DEL PRESUPUESTO GENERAL DE INGRESOS Y EGRESOS DEL ESTADO DE GUATEMALA
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403
three children in Guatemala are considered to be living in poverty.55
Eighty percent of Guatemalan children suffer from some form of
malnutrition.56 Despite these statistics, the State invests only $191 a
year per child, making it the country that invests the least in its
children out of all of Latin America.57 In addition, only 3.1 percent of
the Gross Domestic Product is invested in children.58 Budgets
allocated for services aimed at the protection of children have been
cut and legislative initiatives have not been rigidly implemented.59
This lack of investment is indicative of the low priority the State places
on the protection and advancement of Guatemalan children.
As the Executive Director of End Child Prostitution, Child
Pornography & Trafficking of Children for Sexual Purposes (ECPAT)
points out, Guatemala “is a patriarchal country that invests too little
in social programs.”60 It has an exclusionary structure that does not
2014 ENFOCADO EN NIÑEZ Y ADOLESCENCIA 8 (2013), http://www.unicef.org/guatema
la/spanish/CONTAMOS_15-path.compressed.pdf [hereinafter ANALISIS DEL PRESUPUESTO
GENERAL].
55. CONSORTIUM FOR STREET CHILDREN, NGO SHADOW REPORT FOR THE UNITED
NATIONS COMMITTEE ON THE RIGHTS OF THE CHILD, 54TH SESSION: GUATEMALA 3 (2009),
http://www.streetchildrenresources.org/wp-content/uploads/2013/01/guatemala-shadowreport-2009.pdf.
56. ODHAG, INFORME DE LA SITUACIÓN DE LA NIÑEZ Y ADOLESCENCIA EN
GUATEMALA 2011, at 30 (2012), http://www.odhag.org.gt/pdf/InformeNinez2011.pdf
[hereinafter ODHAG INFORME NIÑEZ 2011].
57. COALICIÓN GUATEMALTECA A FAVOR DEL CUMPLIMIENTO DE LOS DERECHOS DE
LA NIÑEZ Y ADOLESCENCIA DE GUATEMALA, PRESENTACIÓN UPR: GUATEMALA 4 (2012),
http://www.ciprodeni.org/observatorio/material/UPR-Guatemala.pdf.
58. ANALISIS DEL PRESUPUESTO GENERAL, supra note 54, at 4. “In November 2013 the
Congress of Guatemala decided not to approve the budget proposal presented by the
official party for 2014, leaving in place the budget approved for 2013. The country
faces a complex scenario with the possibility of a reduction in the public social
spending to 7.9% of the GDP.” Id.
59. Id.
60. Interview with Villarreal, supra note 44. UNICEF notes that any effort to curb
violence against children must be holistic, address both societal and familial violence,
and incorporate both preventive and rehabilitative programs. “[This] is particularly
important regarding the prevention of violence against children and adolescents,
[and must be] comprised of efforts including overcoming cultural factors associated
with the ancestral patriarchal heritage—in the use and abuse of power, largely by
men—which prevails in the region, such as circumstances associated with
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provide education or access to work or opportunities for large sectors
of the population, which contributes to the ongoing violence.61 Social
disparagement of children promotes the growing violence against
them,62 as Guatemalan children are not seen as humans with rights.63
C. Familial Violence
Parents are some of the most consistent perpetrators of violence
against their own children.64 Before children are even born there is
violence in their homes, in both rural and urban areas.65 Insufficient
attention is paid to child victims, due both to parental attitudes that
treat children as objects rather than subjects of protection, and to high
levels of governmental corruption.66 Violence committed against
children and adolescents has become normalized and justified in
Guatemalan society, through conceptions of hierarchy and
discrimination in its various manifestations, and the practice of treating girls and boys
as property of adults, not as individuals with rights, in accordance with the principles
of the Convention on the Rights of the Child and other international legal instruments
ratified and adopted by the [Latin American] countries.” UNICEF, LA VIOLENCIA
CONTRA NIÑOS, NIÑAS Y ADOLESCENTES 27 (2006) (translated by author).
61. Interview with Nery Rodenas, Exec. Dir., Human Rights Office of the
Archbishop of Guat. (Director Ejecutivo, Oficina de Derechos Humanos del Arzobispado de
Guatemala, or ODHAG), in Guatemala, Guat. (Oct. 23, 2014) (on file with author).
62. ODHAG, INFORME NIÑEZ, supra note 56, at 105.
63. Interview with Emma Galindo, Nat’l Child Consultant, Plan Int’l (Asesora
Nacional de Protección, Plan Internacional), in Guatemala, Guat. (Oct. 23 2014) (on file
with author). Note that child advocates no longer use the word “minors” (menores)
to refer to youth. “Minor is a stigmatizing word. It implies that children are less than
adults, and leads to the view that children have less rights (menores en sus derechos)
and [this] is a concept of control. That’s why we use the terminology boys, girls, and
adolescents. The CRC advises not to use the concept of minor.” Id.
64. Interview with Julio Ságüil, Attorney at the Office of the Nat’l Gen.
Procurator, Children & Adolescent Division (Procurador, Procuraduría de la Niñez y
Adolescencia de la Procurador General de la Nación), in Guatemala, Guat. (Oct. 24, 2014)
(on file with author).
65. Interview with Villarreal, supra note 44.
66. Interview with Ságüil, supra note 64; Interview with Estuardo Sánchez, Adviser for Child Prot. (Consultor de la Protección de la Niñez), UNICEF, in Guatemala,
Guat. (Oct. 24, 2014) (on file with author).
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405
authority.67 As a result, seventy percent of children are abused in the
home.68 Girls are particularly vulnerable due to deep-rooted gender
biases, which result in weak investigations and prosecutions of cases
involving female victims.69
It is rare that the State will intervene to protect a child in cases of
violence from within the family.70 If a parent puts visible marks on
the child, this will draw attention but even in these cases it is believed
that parents have the right to instill their values by any means they
see fit.71 Experts estimate that ninety percent of domestic violence
cases go unreported, and little to no statistics are able to capture the
pervasiveness of this issue.72
D. Sexual Violence
Sexual assault rates in the country have increased seventy
percent from 2009 to 2013, according to government statistics.73
67. ODHAG INFORME NIÑEZ 2012-2013, supra note 48, at 91. Even the nation’s
strongest legislation in support of children’s rights requires that children “respect and
obey their parents or guardians, to contribute to familial loyalty and unity,”
demonstrating state imposition of the subordination of children. Ley PINA, art. 62(b)
(translated by author).
68. UNICEF, MÍRAME 70 (2007); see also Interview with Ságüil, supra note 64
(noting that attorneys charged with representing youth in cases where their rights
have been violated have discretion under the Ley PINA to represent children in these
cases, but often decide against it because it is “a family matter”).
69. Karen Musalo & Blaine Bookey, Crimes Without Punishment, An Update on
Violence Against Women and Impunity in Guatemala, 10 HASTINGS RACE & POVERTY L. J.
265, 269 (2013).
70. Interview with Rodenas, supra note 61; Interview with Ságüil, supra note 64.
71. ODHAG INFORME NIÑEZ, 2011, supra note 56, at 105; Interview with Judge in
the First Instance Court for Adolescents in Conflict with the Law (requested
anonymity) (Juez, Juzgado de Primera Instancia de Adolescentes en Conflicto con la Ley
Penal), in Guatemala, Guat. (Oct. 22, 2014) (on file with author); Interview with
Galindo, supra note 63.
72. LET GIRLS LEAD, ESTUDIO DE CASO AGALI: COMBATIENDO LA VIOLENCIA SEXUAL
EN GUATEMALA 1 (2013), http://programaagali.org/esp/wp-content/uploads/2013/06/
AGALI-CONACMI-Case-Study-FINAL-Spanish-6-7-13.pdf.
73. U.S. STATE DEP’T OVERSEAS SECURITY ADVISORY COUNCIL, GUATEMALA 2015
CRIME AND SAFETY REPORT (2015), https://www.osac.gov/pages/ContentReportDetails.
aspx?cid=17785.
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Children face exponentially higher levels of sexual abuse than adults:
in 2014, 11,000 children were hospitalized for sexual abuse; the PNC
reported 4,608 cases of physical violence against children in the same
year.74 In nine out of ten of cases of abuse against children, family
members are the perpetrators, and in eight out of ten cases, the abuse
is committed within the home.75 Incest has been culturally assimilated
and thus accepted by many as a normal part of childhood.76 Girls in
particular are rarely provided police protection when faced with
aggression and sexual exploitation at the hands of family members.77
Furthermore, abused children are regularly revictimized because the
State maintains a policy of removing the child from the home rather
than removing the abuser.78
Guatemala has the highest teenage pregnancy rate in Latin
America79—5,000 girls under the age of fifteen became pregnant in
2014.80 More than one-third of the population is victim to early or
forced marriage, which leads to greater instances of teen pregnancy.81
Most girls under the age of fourteen become pregnant as a result of
rape by their fathers or other relatives.82 For example, in 2012, nearly
74. Menores Afectadas por la Violencia, SIGLO 21 (Guatemala) (Mar. 4, 2015),
http://m.s21.com.gt/nacionales/2015/03/04/menores-afectadas-violencia.
75. Id.
76. Interview with Byron Ruben Alvarado Fuentes, Exec. Subsecretary of the
Nat’l Comm’n on Children & Adolescents (Subsecretario Ejecutivo, Comisión Nacional
de la Niñez y de la Adolescencia, or CNNA), in Guatemala, Guat. (Oct. 22, 2014) (on file
with author).
77. Id.
78. Id.
79. German A. Ospina, Why Is Guatemala’s Teen Pregnancy Rate So High?,
COUNCIL ON HEMISPHERIC AFF. (June 17, 2015), http://www.coha.org/why-is-guatema
las-teen-pregnancy-rate-so-high/.
80. Alicia Menendez, Why Are 10-Year-Olds Having Babies in Guatemala?, FUSION
(Sept. 28, 2015), http://fusion.net/video/204565/teenage-pregnancy-guatemala/. Fiftynine thousand girls and adolescents became pregnant in 2012. ECPAT, INFORME DE
MONITORE DE PAÍS SOBRE LA EXPLOTACIÓN SEXUAL COMERCIAL DE NIÑOS, NIÑAS Y
ADOLESCENTES (ESCNNA): GUATEMALA 14 (2014), http://www.ecpat.net/sites/default/
files/CMR_GUATEMALA_FINAL.pdf [hereinafter ESCNNA: Guatemala].
81. ESCNNA: Guatemala, supra note 80, at 11.
82. Anastasia Moloney, Fathers Rape with Impunity, Fuelling Guatemala’s Teen
Pregnancies: Rights Group, REUTERS (Oct. 2, 2015), http://www.reuters.com/article/20
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407
ninety percent of these pregnancies involved relatives, including
uncles and cousins, with thirty percent of those pregnancies the result
of rape by fathers.83 These girls are then forced by family members to
leave the home while perpetrators go unpunished.84 The violence
does not stop at the victim—only forty percent of infants born of
mothers under the age of eighteen live to be more than one year old.85
Within indigenous cultures of Guatemala, girls are invisible in
the patriarchal structure86 under which they are considered secondclass citizens.87 Moreover, when an indigenous mother bears a girl,
15/10/02/us-guatemala-teenage-pregnancy-idUSKCN0RW22D20151002.
83. Moloney, supra note 82.
84. Within the last decade, article 200 of the Penal Code permitted a person who
committed rape to escape criminal prosecution if s/he married the victim, so long as
the victim was above the age of 12. See Código Penal, Decreto 17-73, Artículo 200,
(Penal Code, Decree 17-73, art. 200) (Guatemala). As the law now stands, anyone
under the age of fourteen cannot consent to sex, and perpetrators receive an
aggravated sentence if the victim becomes pregnant as a result. El Sí de las Niñas (el
Decreto 8-2015 en Tres Actos), EL PERIÓDICO (Guatemala) (Nov. 22, 2015), http://elperio
dico.com.gt/2015/11/22/domingo/el-si-de-las-ninas-el-decreto-8-2015-en-tres-actos/.
85. Embarazo en Niñas, OBSERVATORIO EN SALUD REPRODUCTIVA, http://www.osar
guatemala.org/ (last visited Nov. 28, 2015).
86. “Customary law in many Mayan communities recognized a man’s right to
hit his wife and children. When couples married, elders informed new husbands that
they must control their wives, which they could achieve with restrained levels of
physical force. In turn, women learned that they must always obey their husbands
and endure occasional beatings. Such counsel was part of the social process that
sustained violence. It also reified highland men’s gendered powers . . . .” David
Carey Jr. & M. Gabriela Torres, Precursors to Femicide: Guatemalan Women in a Vortex
of Violence, 45 LATIN AM. RES. REV. 142, 146 (2010) (internal citations ommitted). See
also MARÍA G. TEIJIDO & WIEBKE SCHRAMM, GUATEMALA’S INDIGENOUS WOMEN, in
RESISTANCE: THE FRONTLINE OF THE COMMUNITY’S STRUGGLE TO DEFEND MOTHER EARTH
AND HER NATURAL ASSETS 15–16, 21–22 (2010), http://www.pbi-guatemala.org/fileadm
in/user_files/projects/guatemala/files/english/Mujeres_Completo_ING.pdf. This patriarchal structure has been met with strong resistance by indigenous Guatemalan
women. Id. at 16; Lorena Cabnal, Acercamiento a la Construcción de la Propuesta de
Pensamiento Epistémico de la Mujeres Indígenas Feministas Comunitarias de Abya Yala, in
FEMINISTA SIEMPRE, FEMINISMOS DIVERSOS: EL FEMINISMO COMUNITARIO 10 (2012); see
generally RIGOBERTA MENCHÚ, I, RIGOBERTA MENCHÚ: AN INDIAN WOMAN IN
GUATEMALA (1984).
87. UNICEF, LOOK AT ME! STATUS OF INDIGENOUS GIRLS IN GUATEMALA 15
(2008), http://tracestone.pbworks.com/w/file/fetch/64193815/look_at_me_part1%20In
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[Vol. XIII
the child is seen as a burden for the family. Indigenous mothers are
blamed for their daughters being raped or becoming pregnant at a
young age.88 In all, the State has failed to adequately address the high
rates of sexual abuse perpetrated against Guatemalan youth,
particularly when perpetrated in indigenous Guatemalan
communities.
E. Forced Marriage
The State has only just begun to address the issue of forced
marriage within the country. Forced marriages are marriages that
occur without the free or valid consent of one or both parties. Early
marriage is related to forced marriage because, under a number of
international instruments,89 minors under the age of eighteen are
deemed incapable of giving informed consent.90 Abject poverty, high
birth rates, and cultural attitudes that devalue children lead to the
lamentable fact that some parents sell their children as a commodity,
the way one would sell a cow.91 Children are sold—sometimes to be
transported out of the country to be married—or traded with a
neighbor in exchange for livestock.92 However, forced marriage has
only recently been identified as being linked to trafficking.93
Adolescent girls in Guatemala, typically thirteen to fourteen
digenous%20Girls%20in%20Guatemala.pdf [hereinafter LOOK AT ME!].
88. LOOK AT ME!, supra note 87, at 25.
89. See The Convention on Consent to Marriage, Minimum Age for Marriage,
and Registration of Marriages, Nov. 7, 1962, 32 U.N.T.S. 231, http://www.unh
chr.ch/html/menu3/b/63.htm; Universal Declaration of Human Rights; Convention
on the Elimination of All Forms of Discrimination Against Women, G.A. res. 54/4,
annex, 54, http://www1.umn.edu/humanrts/instree/e1cedaw.htm; Convention on the
Rights of the Child, supra note 43.
90. CHERYL THOMAS, UNITED NATIONS DIVISION FOR THE ADVANCEMENT OF WOMEN, FORCED AND EARLY MARRIAGE: A FOCUS ON CENTRAL AND EASTERN EUROPE AND
FORMER SOVIET UNION COUNTRIES WITH SELECTED LAWS FROM OTHER COUNTRIES 2
(2009), http://www.un.org/womenwatch/daw/egm/vaw_legislation_2009/Expert%20
Paper%20EGMGPLHP%20_Cheryl%20Thomas%20revised_.pdf.
92. Id.
93. THOMAS, supra note 90, at 2.
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409
years old, poor, and lacking a nuclear family structure, are most
vulnerable to be sold for forced marriage.94 Girls are substantially
more likely to be forced to marry than are boys, and Guatemalan law,
until very recently, supported this: a fourteen-year-old girl in
Guatemala could legally consent to marriage but not until age sixteen
could a boy consent to marriage.95 Until November 2015, both sexes
could marry by the age of twelve with parental consent.96 In
November, after a successful campaign by UNICEF, Congress passed
a law97 increasing the legal age of marriage to eighteen for both sexes
and permitting exception via judicial decree only for adolescents aged
sixteen or older.98 The hope is that this change in law will work to
minimize cases of sexual violence including early and forced
marriages and teenage pregnancy.99
Forced marriage perpetuates poverty and enslaves women and
girls.100 Girls married as children are cut off from family and friends—
they are socially isolated, with limited opportunities for education,
and more likely to experience domestic and sexual violence.101 Forced
94. THOMAS, supra note 90, at 2.
95. UNICEF, ENDING CHILD MARRIAGE: PROGRESS AND PROSPECTS 2 (2014), http://
data.unicef.org/corecode/uploads/document6/uploaded_pdfs/corecode/Child-MarriageBrochure-HR_164.pdf; Interview with Galindo, supra note 63.
96. Id.
97. Decreto 8-2015 (Decree 8-2015) (Guatemala).
98. Decreto 8-2015, art. 82. UNICEF began the campaign #18Sí14No (“#18Yes
14No”) to raise public support for Congress to increase the marriageable age to
eighteen. By 2014, this policy was being implemented in 68 municipalities. UNICEF,
ANNUAL REPORT 2014: GUATEMALA 7 (2014), http://www.unicef.org/about/annualre
port/files/Guatemala_Annual_Report_2014.pdf.
99. Id. at 12.
100. Human Rights Council Holds Panel Discussion on Preventing and Eliminating Child,
Early And Forced Marriage, UNITED NATIONS OFF. OF HIGH COMM’R ON HUM. RTS. (June 23,
2014), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14760
&LangID=E.
101. UNICEF, ENDING CHILD MARRIAGE: PROGRESS AND PROSPECTS 4 (2014), http://
data.unicef.org/corecode/uploads/document6/uploaded_pdfs/corecode/Child-Marr
iage-Brochure-HR_164.pdf; Child Marriages: 39,000 Every Day – More than 140 Million
Girls Will Marry Between 2011 and 2020, UNWOMEN (Mar. 7, 2013), http://www.unwo
men.org/en/news/stories/2013/3/child-marriages-39000-every-day-more-than-140-mi
llion-girls-will-marry-between-2011-and-2020.
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marriage is especially prevalent among indigenous Mayan
communities in rural areas.102 In rural Guatemala, more than fifty
percent of women aged twenty to twenty-four were married before
the age of eighteen.103 Early and forced marriage, therefore, represent
additional barriers perpetuating the inability of Guatemalan girls to
assert their rights.
F. Displaced Children, or “Street Children”104
Physical and psychological violence within the family unit have
been considered the main factors driving the displacement of children
in Guatemala.105 Increasing rates of abandonment are of grave
concern with thirty-five children orphaned each day in Guatemala—
a country without a historical culture of adoption.106 Many parents
102. Guatemala Bans Child Marriage but ‘Cultural Shift’ Required, Advocates Say,
GUARDIAN (Nov. 11, 2015), http://www.theguardian.com/world/2015/nov/11/guate
mala-bans-child-marriage.
103. CTR. ON FOREIGN REL., CHILD MARRIAGE: A CFR INFOGUIDE PRESENTATION
(2013), http://www.cfr.org/peace-conflict-and-human-rights/child-marriage/p32096#
!/?cid=otr_marketing_use-child_marriage_Infoguide#!%2F.
104. The widely recognized phrase “street children” is an umbrella description
for children that live and/or work in the street. UNICEF notes that the label “street
children” perpetuates stigmatization and demonization by mainstream society, and
furthers beliefs that these children are dangerous and/or criminals. THE STATE OF THE
WORLD’S CHILDREN 2006: EXCLUDED AND INVISIBLE 40, UNICEF (2006), http://www.uni
cef.org/sowc06/pdfs/sowc06_fullreport.pdf.
105. CONSORTIUM FOR STREET CHILDREN, supra note 55, at 4; BUREAU OF
DEMOCRACY, HUM. RTS. & LAB., U.S. DEP’T OF ST., GUATEMALA: COUNTRY REPORTS ON
HUMAN RIGHTS PRACTICES FOR 2011, at 20 (2012), http://www.state.gov/documents/or
ganization/186728.pdf [hereinafter ST. DEP’T HUM. RTS. 2011].
106. Interview with Ines Tobar Cruz, Attorney, Multidisciplinary Team, Nat’l
Adoption Council (Consejo Nacional de Adopciones or CNA), at 2–4, in Guatemala,
Guat. (Oct. 21, 2014); UNICEF: 75% de Impunidad en los Casos de Violencia Contra
Menores, LA HORA (Guatemala) (Sept. 17, 2014), http://lahora.gt/unicef-75-de-impuni
dad-en-los-casos-de-violencia-contra-menores/. In 2008 Guatemala began implementation of the new National Adoption Law (Ley de Adopción, Decreto Número 772007), putting a moratorium on international adoption as an attempt to curb decades
of trafficking of children out of Guatemala by notarios. Due to the lack of culture of
adoption within the country, the State found it difficult to get parents to adopt. In
response, the CNA initiated programs requiring six weeks of waiting before a mother
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411
leave Guatemala for the north, leaving their children home with
distant relatives, which increases their vulnerability for abuse.107
Estimates of the number of displaced children in Guatemala ranges
from 1500-5000.108 These youth are subject to homelessness, police
brutality, and lack of access to vital services.109 Organized crime rings
often recruit displaced children to steal, transport contraband, for
prostitution and illegal drug activities.110 Further, police often exert
physical and sexual abuse on the displaced youth they detain.111
The major factors threatening the health of displaced children are
violence, drugs, early sexual experience, malnutrition, and diseases
linked to living conditions.112 Mayan children in particular have
experienced historical and ongoing discrimination, segregation, and
far less access to resources and services.113 Government departments
charged with protecting the rights of children in Guatemala are not
allocated sufficient funds or have proper organization to protect
children from becoming displaced.114
can give her child up for adoption, psychological exams, and therapy, which has
reportedly led to an increase in child abandonment—mothers abandon their children
rather than turn them over to the appropriate authorities to avoid this psychologically
harmful, government-mandated “therapy” process. See Mary Anastasia O’Grady,
Guatemala’s Stranded Orphans, WALL ST. J. (Jan. 26, 2014), http://online.wsj.com/arti
cles/SB10001424052702303947904579340613770603296. Furthermore, Guatemala has
criminalized leaving the infant with firefighters or peace keeping authorities,
requiring mothers instead to undergo this psychological process. Interview with
Cruz, supra note 106.
107. Interview with Leonel Asdrubal Dubón Benfeldt, Exec. Dir., El Refugio de
la Niñez, in Guatemala, Guat. (Oct. 24, 2014) (on file with author). “I believe the three
main reasons for migration are (1) desperation; (2) family reunification; and (3)
violence—there is a lot of gang pressure and heavy harassment.” Id.
108. CONSORTIUM FOR STREET CHILDREN, supra note 55, at 3.
109. Id.
110. ST. DEP’T HUM. RTS. 2011, supra note 105, at 20.
113. Jonas, supra note 16.
114. Jonas, supra note 16. The Secretariat for Social Welfare (Secretaría de Bienestar
Social or “SBS”) and the National General Procurator (Procurador General de la Nación
or “PGN”) are the two main bodies charged with protecting the rights of children in
Guatemala. See discussion on the governmental bodies charged with implementing
child protection laws, infra Part III.
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[Vol. XIII
G. Indigenous Communities Experience Heightened Levels of
Violence
Mayan women and girls have a fear of speaking out, of
expressing their views and feelings due to centuries of submission
and subordination.115 Racial discrimination leaves indigenous youth
marginalized from essential public services, and leads to social
exclusion, marginalization, and limitation.116 As a result of their rural
residency, many indigenous mothers are unable to obtain an
identification card due to their rural residency, a card that is required
to register births with the Register of Vital Statistics. Without this
registration, children essentially do not exist in the legal system,
rendering them unable to exercise their rights.117
H. Child Labor
Seven out of ten children and adolescents in Guatemala work or
are exploited through forced labor.118 Indigenous children and
adolescents comprise more than two-thirds of child labor in
Guatemala.119 Some children are forced to beg on behalf of their
115. LOOK AT ME!, supra note 87, at 7.
116. Id.
117. Id. Regardless of registration, indigenous children are treated as less deserving of emergency state protection. In the context of unaccompanied minors repatriated to Guatemala, eighty percent of these children are indigenous, yet the State
does not provide any interpreters in their procedures for recognizing fear of return
or returning children to their parents—even in Xela, one of the country’s two
repatriation centers. Interview with Golda Ibarra, Dir. of the Migrant Children’s
Program, Office of the Sec’y of Soc. Welfare (Directora del Programa Niñez Migrante,
Secretaría de Bienestar Social) in Guatemala, Guat. (Oct. 22, 2014) (on file with author).
“[T]he families do not understand the process because it is not in their language.
Many use their fingerprints as a signature because they can’t even write their name—
they are illiterate. The process is really just a formal handing over [of the child]; there
is no one to watch out for their right to assure that they are protected.” Interview
with Sánchez, supra note 66.
119. 2014 FINDINGS ON THE WORST FORMS OF CHILD LABOR - GUATEMALA, U.S.
DEP’T OF LABOR (2014), http://www.dol.gov/ilab/reports/child-labor/findings/2014TD
A/guatemala.pdf.
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413
families or on behalf of organized crime.120 Others are forced to sell
fruits in the street, work in the sugarcane and coffee fields, or even in
construction.121 Young girls are often brought to work with their
mothers where they are made to clean houses.122 Because many
children work at all hours of the day, they do not attend school and
do not acquire a number of necessary skills, thereby reducing their
lifetime earning potential and preventing upward mobility.123
I. Violent Crimes
The violent crime rate in Guatemala is “critical” and one of the
highest in Latin America.124 The high level of violence severely
destabilizes economic growth and general well-being; money that
could be used for social services is instead budgeted to combat
violence.125 The U.S. Department of State attributes Guatemala’s high
murder rate—fifth highest in the world126—to a variety of factors,
120. Interview with Ságüil, supra note 64.
121. Cristián Dávila, Leyes No Sancionan Explotación Infantil, PRENSA LIBRA (Mar.
27, 2014), http://www.prensalibre.com/noticias/justicia/Leyes-sancionan-explotacion
-infantil_0_1109289087.html. See also Interview with Ságüil, supra note 64.
122. Dávila, supra note 121.
123. Id; KOFI A. ANNAN, WE THE CHILDREN: MEETING THE PROMISES OF THE WORLD
SUMMIT FOR CHILDREN 9 (2001) http://www.unicef.org/specialsession/about/sgreportpdf/sgrep_adapt_part2c_eng.pdf.
124. The United States Department of State has marked the level of violence in
Guatemala as “Critical.” See BUREAU OF DIPLOMATIC SECURITY, U.S. DEP’T OF ST.,
GUATEMALA 2014 CRIME AND SAFETY REPORT (2014), https://www.osac.gov/pages/
ContentReportDetails.aspx?cid=15656. The capital city of Guatemala has the third
highest murder rate of any major city in the Americas. See GLOBAL STUDY ON
HOMICIDE 2013: TRENDS, CONTEXTS, DATA, U.N. OFFICE ON DRUGS & CRIME (Mar. 2014),
http://www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.p
df. The country is now the third most dangerous in all of Latin America and has the
fifth highest murder rate in the world. FORENSIC & LITIGATION CONSULTING, PUBLIC
INSECURITY IN LATIN AMERICA 2 (2014), http://www.fticonsulting.com/global2/media/
collateral/united-states/2014-latin-america-security-index.pdf; Which Countries Have
the World’s Highest Murder Rates? Honduras Tops the List, CNN (Apr. 11, 2014), http://
www.cnn.com/2014/04/10/world/un-world-murder-rates/.
125. U.S. DEP’T OF ST., GUATEMALA 2014 CRIME AND SAFETY REPORT, supra note 124.
126. Which Countries Have the World’s Highest Murder Rates? Honduras Tops the
List, CNN (Apr. 11, 2014), http://www.cnn.com/2014/04/10/world/un-world-murder-
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[Vol. XIII
including increased narco-trafficking activity, increased gang-related
violence, high gun ownership (roughly sixty percent of the population
possess a firearm), and a police/judicial system that is both unable and
unwilling to hold perpetrators of violence against children
accountable.127 Normalized violence, as a result of the thirty-six-year
civil war, also contributes to perpetually high levels of brutal
violence.128
Guatemala has the second highest rate of child murder in the
world.129 In just the first two months of 2015, 848 children went
missing.130 Homicide is the leading cause of death among adolescent
boys in Guatemala.131 INACIF found that 112 of the 156 violent deaths
of minors (which INACIF defines as ages zero to eighteen) in the three
months between January and March 2015, or about seventy-two
percent, were children killed by firearms.132
The country has one of the world’s highest rates of femicide and
government officials and agencies have been unwilling and/or unable
to investigate the vast majority of these cases.133 An average of two
females are killed every day in Guatemala.134
Infanticide is
rates/.
127. U.S. DEP’T OF ST., GUATEMALA 2014 CRIME AND SAFETY REPORT, supra note 124.
128. Michael Sheen, Why Guatemala is One of the Worst Places in the World to Be a Child,
THE TELEGRAPH (U.K.) (Mar. 9, 2015), http://www.telegraph.co.uk/news/worldnews/cen
tralamericaandthecaribbean/guatemala/11457584/Why-Guatemala-is-one-of-the-worst-p
laces-in-the-world-to-be-a-child.html.
129. Id.
130. Id.
131. UNICEF, HIDDEN IN PLAIN SIGHT: A STATISTICAL ANALYSIS OF VIOLENCE
AGAINST CHILDREN 165 (2014), http://data.unicef.org/corecode/uploads/document6/
uploaded_pdfs/corecode/VR-full-report_Final-LR-3_2_15_189.pdf.
132. Wendy Villagrán, Menores Arrastrados Por la Violencia, LA NACIÓN
(Guatemala) (Apr. 12, 2015), https://issuu.com/lanaciongt/docs/edici__n_12-4-15.
State-provided statistics, however, are unreliable—INACIF and the Guatemalan
National Police (Policia Nacional Civil, or "PNC”) had a sixteen-percent discrepancy in
homicide reports in 2012 and 2013, for example. One reason for such a discrepancy
is that the PNC does not count the crime as a homicide if the victim left the crime
scene alive but subsequently died as a result of the injuries. U.S. DEP’T OF ST., GUATEMALA 2014 CRIME AND SAFETY REPORT, supra note 124.
133. Jonas, supra note 16.
134. LET GIRLS LEAD, supra note 72.
Summer 2016]
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415
disproportionately committed against females due to the belief that
females have less social value than males.135
J. Gang Violence
The issue of gangs must be understood within the systems of
structural violence under which Guatemalan children are brought
up.136 Anthropologists find that gangs have emerged and are able to
thrive amidst conditions shaped by governmental policies, foreign
political influence, and global economic restructuring.137 These
anthropologists further note, “The category ‘gang member’ functions
as something of a scapegoat in contemporary Guatemala. By
attributing violence to delinquent youth, people distance themselves
from feelings of complicity and resignation.”138
Within the last decade, the number of youth street gangs (maras)
has grown significantly, resulting in both increased violence and the
number of children at risk of being recruited into gangs.139 Although
there are no reliable statistics on the number of children and
adolescents involved in gang activity,140 the Alliance for the
Prevention of Crime (Alianza para la Prevención del Delito) estimates
there to be 200,000 youth gang members in Guatemala.141 Youth in
Guatemala are the demographic most affected by this increased gang
activity—regardless of whether they are involved with gangs or not.142
135. ODHAG INFORME NIÑEZ 2012-2013, supra note 48, at 91.
136. Benson, Fischer & Thomas, supra note 45, at 43.
137. Id. at 50.
138. Id. at 43.
139. Id. Gang activity is primarily concentrated in Guatemala City, especially
zones 3, 5, and 18, and also in the departments of Huehuetenango (located near the
border of Mexico), Chimaltenango, and Quiche. Interview with Ibarra, supra note
117. Where poverty is high, gang activity is high. Interview with Nery Rodenas,
supra note 61.
140. INTERPEACE, VIOLENCIA JUVENIL, MARAS Y PANDILLAS EN GUATEMALA 30
(2009), http://www.interpeace.org/publications/central-american-youth-programme/
36-youth-violence-maras-and-pandillas-in-guatemala-spanish/file.
141. UNICEF, ADOLESCENCIA, INTRODUCCIÓN, http://www.unicef.org/guatema
la/spanish/adolescence.html (last visited Feb. 18, 2015).
142. MANZ, supra note 46, at 5.
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[Vol. XIII
An estimated eighty-five to ninety percent of cases in the Courts for
Adolescents in Conflict with the Law (Juzgados de Primera Instancia de
Adolescentes en Conflicto con la Ley Penal) are related to gang activity.143
Gang members threaten children to either join the gang or run the risk
of being killed.144 These are not empty threats; many children die for
refusal.145 Police know that many children are killed for refusing to
join gangs, yet even when reports are filed, police do not investigate.146
As a result of the high number of children in gangs, many are
wrongly associated with gangs, and are even killed based on this
assumption.147 The inability of the State to effectively reduce violence
in the country has led to increased levels of mistrust within society
and the underreporting of crimes.148 In fact, three out of four crimes
go unreported, with most victims citing lack of confidence in the
State’s ability to protect them, and ten percent fearing reprisals.149 A
recent poll found that seventy-six percent of the population has little
or no trust in the police.150
Those children who willingly join or who are coerced into joining
gangs come from unstable homes and conditions of violence.151 There
143. Interview with Judge, supra note 71.
144. Interview with Rodenas, supra note 61.
146. Id. “The gangs threaten and yes, they carry it out. If [children] are threatened, they comply, or they risk death. Some gang members offer kids money to
commit a crime and since they don’t have parents or they are simply poor, they’ll do
it. But others are threatened and they comply. They can’t go to the police, and if they
did, the police wouldn’t do anything anyway. The police don’t care, even though it’s
demonstrated that they kill these kids for not entering into the gangs. I have cases of
13 and 14 year-olds killed by the gangs for refusing. No one can save them; no one
can protect them. It’s well understood that they are threatened to comply and nobody
can save them.” Id.
147. Id.
148. CICIG, INFORME ESTADÍSTICO DE LA VIOLENCIA EN GUATEMALA 13–14 (2007),
http://www.who.int/violence_injury_prevention/violence/national_activities/inform
e_estadistico_violencia_guatemala.pdf.
149. Id; LA HORA, supra note 106.
150. MAUREEN TAFT MORALES , CONG. RESEARCH SERV., R42580, GUATEMALA:
POLITICAL, SECURITY, AND SOCIO-ECONOMIC CONDITIONS AND U.S. RELATIONS 1 (Aug. 7,
2014), http://fas.org/sgp/crs/row/R42580.pdf (citation omitted).
151. Interview with Vilma Gonzáles, Head Juvenile Prosecutor, Public Ministry
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417
is a lack of opportunities, insufficient resources, and little means to get
ahead or get out.152 Children in the peripheral areas of cities where
poverty is higher are especially vulnerable to being pulled into a
gang.153 Some join the gangs where they are accepted because their
family and society has excluded them; other children join gangs
because they see the gang members as family and believe they will be
protected.154 Those who join gangs must undergo a hazing process
during which new members are tasked with crimes to prove
themselves—many times the task is to kill a person and even cut up
the body.155
It is widely recognized by police, judges, prosecutors, and those
within civil society that organized crime rings use children to commit
crimes.156 As a result of this growing association, children and
adolescents are now carrying out assassinations, extortions,
kidnappings, and robberies on behalf of the organized crime rings.157
Organized criminal networks and gangs operate largely with
impunity in part because officials accept bribes to dismiss charges.158
Gangs target children under age thirteen to commit
assassinations; roughly forty percent of murders are committed by
(Fiscal, Fiscalía del Menor o de la Niñez, Ministerio Público), in Guatemala, Guat. (Oct. 24,
2014) (on file with author); Interview with Rodenas, supra note 61.
153. Id.
154. Id. A prosecutor in the Office of the Prosecutor of Minors anecdotally mentioned a case involving a twenty-two-year-old that joined a gang at age ten; “I have
lived,” he boasted, because many children in gangs do not live into their twenties.
Interview with Gonzáles, supra note 151.
155. Id.
156. Interview with Jean Paul Briere Samoya, Congressman & Chairman of the
Comm’n on Migration (Diputado y Presidente de la Comisión de Migración, Congreso de
la República) in Guatemala, Guat. (Oct. 24, 2014) (on file with author); Interview with
Rodenas, supra note 61; Interview with Gonzáles, supra note 151.
157. Interview with Rodenas, supra note 61. Mr. Rodenas explained that there is
a difference in the type of criminal activity committed explicitly by gangs (maras) and
that which is associated with organized crime. Gangs typically extort businesses, rob
ATMs, assault people, and kill children in other gangs. Gangs associated with
organized crime are typically involved in narcotics and sexual trafficking,
kidnapping, and robbery. Id.
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[Vol. XIII
children under the age of thirteen.159 Gang members gather children
between the ages of nine and eleven, and teach them to shoot.160
Because the crime rings in Guatemala are highly structured and wellconnected, and are equipped with guns, vehicles, manpower, and
collaborators who work in different governmental institutions, they
are able to exercise their power across various socio-economic
groups.161 The deception and exploitation of children by adults is
pervasive and manifests in many different forms of violence against
Guatemalan youth.
K. Sexual Exploitation and Trafficking
The sexual exploitation of minors is largely invisible yet
widespread in Guatemalan society.162 Sexual exploitation of children
and adolescents is not particular to any specific sector of the
population—every sector is seriously exposed to risk—however the
young, poor, and indigenous of the country are most vulnerable to
sexual exploitation.163 The major forms of sexual exploitation of
minors in Guatemala include child pornography, sexual abuse and
violence (including sex tourism), rape, enslavement, forced marriage,
forced prostitution, and sex trafficking.164
Sexual exploitation is one of the forms of violence that most
affects children and adolescents in Guatemala.165 The Specialized
159. Interview with Gonzáles, supra note 151. “Adults who are part of criminal
networks who want to kill someone will take a child under the age of thirteen, give
them a revolver and direct them to kill the person. Those who are under the age of
thirteen do not yet have the conscience to say no.” Id.
161. Id.
163. NAJAT MAALLA M’JID, PROCURADURÍA DE DERECHOS HUMANOS, INFORME A LA
RELATORA ESPECIAL DE NACIONES UNIDAS SOBRE LA VENTA DE NIÑOS, LA PROSTITUCIÓN
INFANTIL, Y LA UTILIZACIÓN DE NIÑOS EN LA PORNOGRAFÍA 5 (2012), http://www.pdh.
org.gt/archivos/descargas/Biblioteca/Informes%20Especiales/informe_de_relatora_onu_
prostitucin_pornografia_y_venta_de_nios_final.pdf.
165. Interview with Villarreal, supra note 44 (citing sexual exploitation just after
child labor as the form of exploitation affecting children and adolescents in
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419
Prosecutor on Human Trafficking reports that about eighty percent of
trafficking and sexual exploitation cases involve children and
adolescents.166
According to ECPAT, the factors that make
Guatemalan children especially vulnerable to sexual exploitation and
trafficking include: poverty, lack of opportunities, ramifications of the
civil war, high rates of violence, high rates of impunity, lack of
credibility of State institutions, combined with cultural factors, history
of gender-based violence, structural machismo, female wage gap, and
a general lack of education.167 Guatemalan high society is also a part
of the trafficking structure, exercising control from within the
government.168 As the Executive Director of Refugio de la Niñez
points out, “[The] patriarchal culture has a strong influence, including
on judges who sometimes decide in favor of organized crime [rather
than] the child victim.”169
However, the primary perpetrators of trafficking for sexual
exploitation are networks of organized crime and gang members.170
These networks often deceive parents with promises of bringing their
children to the United States for a better life; instead, these children
are sold in Guatemala for “use” in these criminal structures.171
Traffickers use women—because they are generally more trusted in
Guatemala).
166. Interview with Alex Colop, Head Prosecutor of the Office of the Specialized
Prosecutor on Human Trafficking (Fiscal Encargado de la Fiscalía Contra la Trata de
Personas) in Guatemala, Guat. (Oct. 23, 2014) (on file with author).
167. Id. at 16.
168. “For example there was a mayor who had a catalogue of girls to choose
from for the parties they gave.” Id. “Congress members sexually abuse girls, mostly
seventeen to nineteen-year-old girls from the middle class. They get them from
brothels.” Interview with NGO Representative [Source withheld due to requested
anonymity] in Guatemala, Guat. (Oct. 22, 2014) (On file with author). In July 2013,
five people were caught selling girls and boys for sexual exploitation to “exclusive
clients” including doctors, members of Congress, mayors, exposing both the tolerance
and complicity of government actors in cases of sexual exploitation of children in
Guatemala. ODHAG INFORME NIÑEZ 2012-2013, supra note 48, at 31.
169. Interview with Dubón Benfeldt, supra note 107; see also Interview with
Judge, supra note 71; Interview with Villarreal, supra note 44.
170. Interview with Villarreal, supra note 44; Interview with Dubón Benfeldt,
supra note 107.
171. Interview with Dubón Benfeldt, supra note 107.
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[Vol. XIII
the communities—to approach these families to convince them to give
up their daughters and sons to take them “to better conditions.”172
The many ways in which children’s and adolescents’ rights are
violated evince the need for legislation and policies which require the
State to protect children’s rights.
III. State Efforts to Protect Children and Adolescents
Through specialized legislation, Guatemala has outlawed a
number of forms of violence perpetrated against children and
adolescents. Such legislation closely resembles Guatemala’s obligations to protect the country’s youth under international law. This Part
looks at the legal framework Guatemala has established in order to
improve protection of its children and adolescents, and examines its
effectiveness.
A. Legal Framework to Address Violation of Children and
Adolescent’s Rights in Guatemala
The road toward improved recognition of children’s rights in
Guatemala has been long and primarily led by international
organizations and NGOs.173 In 1996, the Guatemalan Congress passed
the Code of Childhood and Youth (Código de la Niñez y Juventud) (“the
Code”).174 The Code provided children with rights that had never
before been recognized in Guatemala, such as the right to denounce
abusive parents, and included a prohibition on corporal
punishment.175 Several entities within Guatemala did not want to see
the Code implemented, arguing that it over-empowered children and
adolescents, and removed parents’ rights to discipline their
children.176 Opponents were successful in their fight against the law
173. Interview with Sánchez, supra note 66.
174. Guatemala: Decreto No. 78-1996, Código de la niñez y la juventud [Childhood
and Youth Code], Sept. 27, 1996, http://www.refworld.org/docid/3dbe6b686.html.
175. Guatemala: Decreto No. 78-1996, arts. 61, 192.
176. Id. Interview with Fuentes, supra note 76. Religious leaders and thenpresident Ríos Montt lead the charge in objecting to the implementation of the Code.
Summer 2016]
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421
and the Code ultimately never went into effect.177
A 1999 ruling by the Inter-American Court of Human Rights
(IACHR) regarding displaced children who were murdered by the
National Civil Police (Policía Nacional Civil, or PNC) held that
Guatemala was not sufficiently in compliance with international
standards on child protection and ordered the State to take measures
to improve.178 This ruling revived the movement for a new law in line
with the United Nations Convention on the Rights of the Child (CRC),
which Guatemala had both ratified and codified in 1990.179 The CRC
was the first international instrument to incorporate the full range of
human rights—civil, cultural, economic, political, and social—to
legally bind parties to advocate for the protection of children’s rights,
helping them to meet their basic needs, and expanding opportunities
so that children may reach their full potential.180 The four main
principles of the CRC include nondiscrimination, faithfulness to the
best interests of the child, the right to life, survival, and development,
and respect for the views of the child.181 To comply with the 1999
IACHR ruling, and to bring Guatemala in line with the CRC, the
Congress collaborated with organizations of civil society to write the
Ley PINA—the Law for the Comprehensive Protection of Children
and Adolescents (Ley de Protección Integral para la Niñez y
Adolescencia).182
The Code permitted children to divorce their parents, and objectors felt this gave
children too much power.
178. Case of the Street Children (Villagrán Morales et al.) v. Guatemala, Merits,
Judgment, Inter-Am. Ct. H.R. IACHR (ser. C) No. 63 (Nov. 19, 1999).
179. Principales Tratados Internacionales Sobre Derechos Humanos Aprobados y
Ratificados por Guatemala, OFFICE OF THE HIGH COMMISSIONER OF HUMAN RIGHTS,
https://docs.google.com/viewerng/viewer?url=http://wikiguate.com.gt/wp-content/uplo
ads/2014/09/Ratificaciones_DH_guatemala.pdf (last visited June 17, 2015); Convención
Sobre los Derechos del Niño, Decreto del Congreso Número 27-90, May 10, 1990
(Convention on the Rights of the Child, Congressional Decree No. 27-90) (Guatemala).
180. Convention on the Rights of the Child, supra note 43.
181. Id.
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[Vol. XIII
B. The Ley PINA
The Ley PINA (“the law”) was enacted in 2003 to establish the
obligation of the State to protect the physical, mental, and moral
health of children and adolescents.183 The Ley PINA requires that
Guatemala maintain compliance with the CRC.184 The law was
established as a “legal instrument for family integration and social
promotion, which seeks to achieve the comprehensive and
sustainable development of Guatemalan children and adolescents
within a democratic framework and with an unconditional respect for
human rights.”185 The law mandates that all Guatemalan children and
adolescents have the right to life,186 equality,187 political rights,188 and
social rights—including health and education,189 as well as economic
rights.190
1. The Ley PINA Designates Bodies to Create Policies
and Execute its Mandates
The Ley PINA established new bodies charged with overseeing
new protections the law provided and designated new tasks for
existing bodies. This subsection describes the functions of these
institutions, as well as the challenges they have faced in attempts to
carry out their mandate under the Ley PINA.
a.
The CNNA and the SBS
To oversee creation and coordination of policies for
implementation, the Ley PINA created the National Commission on
183. Ley PINA, supra note 43; Convention on the Rights of the Child, supra note
43.
184.
185.
186.
187.
188.
189.
190.
Ley PINA, arts. 3, 5, 8, 12, 22, 58, 67, 90, 92, 107(e), 108(d), 140.
Ley PINA, art. 1 (translated by author).
Ley PINA, art. 9.
Ley PINA, art. 10.
Ley PINA, arts. 12–17.
Ley PINA, arts. 25–49.
Ley PINA, art. 51.
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423
Children and Adolescents (Comisión Nacional de la Niñez y de la
Adolescencia, or CNNA), a body made up of an equal number of
representatives from the State and from NGOs.191
The Ley PINA, in lieu of establishing specific measures for
implementation, instead created the CNNA to develop policies for the
implementation of the broad, vague mandates of the law.192 The
CNNA is charged with drafting public policy to specify and delegate
how these mandates will be carried out. The CNNA thus does not
provide any services but rather solely writes policy while another
agency, the Social Welfare Secretariat (Secretaría de Bienestar Social, or
SBS) actually oversees the implementation of these policies.
The SBS is an administrative body in the executive branch,
charged with the “formulation, coordination, and execution of the
public policies of the Ley PINA . . . developed by the CNNA.”193 The
CNNA is subject to the authority of the SBS, the “mother of the
Commission.”194 This division means that one agency charged with
overseeing the law, the SBS, has more power than the other, the
CNNA. The result is that the CNNA is static, unable to produce
policy, and lacking credibility.195
Insufficient budgetary allocations cripples the CNNA’s ability to
create effective policies as well as the SBS’s ability to execute such
policies. Congress, for example, does not allocate any money to the
CNNA.196 Rather, the CNNA may receive funds from the SBS,197 from
“ordinary or extraordinary contributions and grants it receives from
191. Ley PINA, arts. 85–86.
192. For example, articles 54 and 55 of the Ley PINA hold that the State must
adopt legislative, administrative, social and educational measures to protect children
from physical abuse, sexual abuse, negligence, and emotional abuse. Any person
with knowledge of such abuse is obligated to report.
193. GOBIERNO DE GUATEMALA, SECRETARÍA DE BIENESTAR SOCIAL SOCIAL DE LA
PRESIDENCIA, QUIENES SOMOS, http://www.sbs.gob.gt/quienessomos.html.
194. Interview with Fuentes, supra note 76; Interview with Galindo, supra note
63.
196. One of the responsibilities of the CNNA under the Ley PINA is that it
“obtain resources for its operation.” Ley PINA, art. 88(d) (translated by author).
197. Ley PINA, art. 85(a).
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[Vol. XIII
the State and other national and international bodies.”198
Alternatively, it may obtain funds from “legal or individual
entities.”199 The SBS lacks a sufficient budget to be able to carry out
its own mandate under the Ley PINA and is therefore unable to
significantly contribute to the CNNA.200 The CNNA is thus
underfunded and ineffective.
Article 83 of the Ley PINA requires that the CNNA and its
municipal counterparts create policies that direct governmental
bodies to implement the law.201 A year after its passage, the CNNA
simply failed to create such a policy, so NGOs, particularly Save the
Children, submitted a policy to Congress.202 Congress passed a
resolution203 approving the 2004-2015 National Action Plan for
implementation of the Ley PINA, without apportioning any budget
to its implementation.204
Article 81 requires that each municipality create its own
municipal commission on children and adolescents.205 Although the
law went into effect in 2003, it was not until 2013 that an accord was
reached to create such municipal commissions.206 As of October 2014,
however, only sixty-eight of the 334 municipalities (about twenty
percent) had created these commissions.207 In the municipalities
where local commissions do exist, they, like the CNNA, are solely able
to create policy and are not permitted to execute these policies
through administering services to children and adolescents whose
rights are violated.208
The CNNA was doomed to fail since its inception. Zero
198. Ley PINA, art. 85(b) (translated by author).
199. Ley PINA, art. 85(c) (translated by author).
200. Interview with Fuentes, supra note 76.
201. Ley PINA, art. 83.
202. Interview with Galindo, supra note 63.
203. Acuerdo Gubernativo No. 333-2004, Oct. 19, 2004 (Governmental Accord
No. 333-2003) (Guatemala).
204. Interview with Galindo, supra note 63.
205. Ley PINA, art. 81; see also Interview with Fuentes, supra note 76.
206. Interview with Fuentes, supra note 76.
207. Id.
Summer 2016]
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425
congressional budgetary allocation to the body charged with creating
all of the policy for implementation of the law makes it apparent that
the government created a skeleton of a law with no teeth. The broad,
vague requirements of the law are rendered meaningless without the
creation of policies specifying concrete measures for implementation.
Without a proper budgetary allocation, or State prioritization of the
CNNA, there is realistically little chance for effective protection of
children and adolescents in Guatemala under this law.
b. The PGN and the MP
The Ley PINA obligates a small number of government bodies to
carry out the numerous mandates of the law. As aforementioned, the
CNNA is tasked with the creation of policy and the SBS is to
coordinate and ensure the execution of such policy. The other
governmental body charged with implementing the protection
requirements of the Ley PINA is the General Procurator (Procurador
General de la Nación, or PGN), which is responsible for representing
child and adolescent victims when their rights under the Ley PINA
are violated.
The PGN, equipped with its team of attorneys, social workers,
psychologists, and investigators, is charged with representing the
child or adolescent victim’s interest for protection during the criminal
prosecution of the perpetrator.209 Additionally, the PGN carries out
the investigation in cases of the violation of a child or adolescent’s
rights under the Ley PINA.210 The PGN has offices located in the
provincial capitals of all but three of Guatemala’s twenty-two
departments.211
The two most pressing issues impeding the PGN’s ability to
effectively carry out its obligations include insufficient budgetary
209. Ley PINA, art. 108; Interview with Ságüil, supra note 64.
210. Ley PINA, art. 120; Interview with Ságüil, supra note 64.
211. Interview with Ságüil, supra note 64. When individuals are not able to reach
the PGN’s services in the capital, which is often the case, a Peace Tribunal (Juzgado de
Paz), which is located in each of the 334 municipalities, can notify the PGN. Id.
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[Vol. XIII
allotment and insufficient specialized training.212 The PGN is tasked
with an array of additional tasks after the passage of the Ley PINA
but the increased responsibility was not matched with an increased
budget allocation.213 The entire PGN is allocated sixty-five million
Quetzales (about $8.55 million), spread across its twelve units,
including that of the Child and Adolescent department.214 The PGN
is the weakest organization charged with implementation of the Ley
PINA, yet it has the most responsibility.215 The designation of the
PGN as the main body to represent children and adolescent’s rights
under the Ley PINA was seen as a positive but, at its current capacity,
the PGN is simply unable to fulfill all of its numerous obligations.216
The Child and Adolescents unit of the PGN needs at least double its
current budget to operate properly, especially to effectively execute
the psychological and social services aspect of their mandate.217
The PGN does not receive training specific to the types of abuses
212. Interview with Gloria Castro, Defensora de la Niñez y Adolescencia,
[Ombudsman for Children & Adolescents], Sandra Gularte, Defensora de Víctimas de
Trata [Ombudsman for Victims of Trafficking], & Aura Beatriz Sosa, Auxiliar de la
Defensoría de la Población Migrante [Assistant Ombudsman of Migrant Populations],
Procuraduría de Derechos Humanos [Office of the Human Rights Ombudsman] in
Guatemala, Guat. (Oct. 22, 2014) (on file with author) [hereinafter Interview with
PDH].
213. Id. The PGN works in all cases where the child is a victim of an abuse of
her rights under the Ley PINA, and also has a whole host of other duties, including
(but not limited to): investigating prospective parents for the National Adoption
Counsel (Consejo Nacional de Adopción or CNA) in potential adoption cases; running
the Alba Keneth Alert (Alerta Alba-Keneth), alerting all relevant bodies when an
individual is reported missing; and working with the SBS to repatriate deported
children and adolescents. Interview with Ságüil, supra note 64.
214. Interview with Ságüil, supra note 64. It is not necessarily true that all units
receive equal allocations of this congressional allotment. The other units of the PGN
include: Labor; Criminal; Constitutional Matters; Civil and Commercial Affairs;
Administrative Litigation; Human Rights and International Matters; Elderly and
Disabled; Environmental; Defender of the Rights of Women and the Family;
Psychology; and Social Work; and the National Headquarters unit. See PROCURADURÍA GENERAL DE LA NACIÓN, http://www.pgn.gob.gt/ (last visited Dec. 29, 2015).
216. Interview with PDH, supra note 212; Interview with Sánchez, supra note 66.
Summer 2016]
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427
that their child and adolescent clients typically endure.218 Rather,
these attorneys are trained generally on working with children.219 The
PGN maintains that it holds discretion whether or not to intervene in
a case or to alert the prosecutor to initiate prosecution against a
perpetrator.220 The result, in a country with a history of not respecting
the rights of a child or a woman’s voice, is that in “isolated incidents”
the PGN does not find reason to further investigate or to litigate the
case.221 If the PGN in its investigation determines that the child is, in
their opinion, “in good conditions,” and that the complaint was filed
due to “a family matter,” the PGN will not intervene and the case will
not be tried.222 This is the same rhetoric that has permitted impunity
in cases of sexual and gender-based violence to remain pervasive
throughout Guatemala.223
Furthermore, lack of coordination between the prosecution and
the PGN results in many cases where the PGN does not appear in
criminal cases on the child victim’s behalf, as the PGN is required to
do under the Ley PINA.224 The judge will then reschedule the case,
resulting in a further backlog and, in some cases, revictimizing the
child or adolescent victim.225
The last major governmental body charged with implementation
of the Ley PINA is the Public Ministry (Ministerio Publico, or MP). The
MP is tasked with prosecution of adolescents accused of committing
crimes, discussed infra Section III.B.2.226 Additionally, the many
specialized branches of the MP, such as the Prosecutor Against
Trafficking, are responsible for prosecuting those who violate
children and adolescents’ rights under the Ley PINA.
219. Id.
220. Id.
221. Id.
222. Id.
223. See Karen Musalo, Elisabeth Pelligrin & S. Shawn Roberts, Crimes Without
Punishment: Violence Against Women in Guatemala, 21 HASTINGS WOMEN’S L. J. 161, 171
(2010).
224. Interview with PDH, supra note 212; Ley PINA, art. 108(c).
225. Id.
428
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c.
[Vol. XIII
The Court System Created by the Ley PINA
The Ley PINA established specialized courts.227 Generally, the
theory behind the establishment of specialized courts is that the
judges are able to process cases more efficiently and deliver more
consistent rulings. Ideally, specialized courts ensure that judges, with
the assistance of prosecutors and social service agencies, can follow
up on cases, work with victims, and hold offenders accountable.228
The Ley PINA established two types of specialized courts: one to
hear cases involving violations of children and adolescents’ rights
under the law, and the other to hear cases for adolescents accused of
committing crimes, or are “in conflict with the criminal law.”229 This
next subsection examines the procedures established for children and
adolescents’ whose rights are violated, followed by a section laying
out the procedure established for adolescents in conflict with the
law—with each section providing an overview of how the procedure
should function, as well as issues with the actual implementation of
that procedure.
2. Children Whose Rights Are Violated
The Ley PINA designates a number of government agencies that
are able to receive complaints if a child or adolescent’s rights under
the Ley PINA have been violated to facilitate the process for victims
to report.230 Anyone may bring forth a complaint, including children
228. Specialized Courts, NAT’L INST. JUSTICE (Mar. 14, 2013), http://www.nij.gov/
topics/courts/pages/specialized-courts.aspx.
230. A child who has been the victim of a violation of her rights under the Ley
PINA can file a complaint (denuncia) in the: Supreme Court (Corte Suprema de Justicia);
Appeals Court for Children and Adolescents (Sala de la Corte de Apelaciones de la Niñez
y Adolescencia) through its Management and Information Unit (Unidad de Gestión e
Información); Tribunals of the Peace (Juzgados de la Paz); Child and Adolescent
Tribunals (Juzgados de Niñez y Adolescencia); the Public Ministry (Ministerio Público, or
MP); National General Procurator (Procuraduría General de la Nación or “PGN”);
Human Rights Ombudsman (Procuraduría de Derechos Humanos or “PDH”); National
Civil Police (Policia Nacional Civil or “PNC”); and at health centers, educational
Summer 2016]
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429
or individuals acting on their behalf, and complaints may be made
anonymously.231 If a parent is the perpetrator of violence against their
own child, the PGN is required to go to the house within twenty-four
hours of reporting.232
Once a complaint has been filed, the PGN then seeks protective
measures (medidas cautelares)233 from a Peace Tribunal (Juzgado de la
Paz), which is accessible twenty-four hours per day.234 The Peace
Tribunals are small, local courts with limited jurisdiction that can
handle emergency matters and minor crimes.235 There is one Peace
Tribunal in each municipality and 322 in the entire country.236
With regard to the violations of children and adolescents’ rights
under the Ley PINA, the Peace Tribunals have jurisdiction to
determine whether to issue protective orders, such as placing the
child in temporary housing,237 but they do not have jurisdiction to rule
on the merits of charges.238 The result of this limited jurisdiction is
centers, as well as with NGOs. Each of these institutions transfer complaints to the
Management Unit of the Court of Appeals (Unidad de Gestión de la Sala de la Corte de
Apelaciones) or to the corresponding Child and Adolescent Tribunals. MANUAL El
Movimiento Social por los Derechos de la Niñez, Adolescencia y Juventud en Guatemala, 5,
2009, cited in Sandra Jeaneth Gómez Arango, Material Didáctico Multimedia Acerca de
Cómo Denunciar Violaciones a los Derechos de la Niñez y la Adolescencia en Guatemala,
UNIVERSIDAD DE SAN CARLOS DE GUATEMALA 20 (Nov. 2010), biblioteca.usac.edu.gt/
02/02_2987.pdf.
233. Ley PINA, art. 116(a) and 118. In this hearing, an interview will be conducted and the child’s declaration will be recorded. If the child is not present, the
complaint is sent to the MP, the PGN, and to any intervening parties. Proceso de Niñez
y Adolescencia Amenazada o Violada en sus Derechos Humanos, CENTRO DE INFORMACIÓN,
DESARROLLO Y ESTADÍSTICA JUDICIAL, ORGANISMO JUDICIAL, http://www.oj.gob.gt/estadis
ticaninez/index.php?option=com_content&view=article&id=111:proceso-de-ninez-y-ado
lescencia-amenazada-o-violada-en-sus-derechos-humanos.
234. Id.
235. See ORGANISMO JUDICIAL, http://www.oj.gob.gt/index.php?option=com_con
tent&view=article&id=210&Itemid=281 (last visited Dec. 30, 2015); Ley PINA, art. 103.
236. Ignacio Goicoechea, INFORME DE LA MISIÓN DE RELEVAMIENTO FÁCTICO SOBRE
LA ADOPCIÓN INTERNACIONAL EN GUATEMALA (2007) http://www.hcch.net/upload/wo
p/mission_gt33s.pdf.
237. See Ley PINA, arts. 112, 115 for a list of protection measures available.
238. Ley PINA, art. 103(A). See also Interview with Sánchez, supra note 66.
430
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[Vol. XIII
that children in rural areas must travel 100 miles in some cases to
reach the specialized tribunal in the capital where the merits of their
case can be heard. This means that rural children and/or adolescents
simply may not seek vindication for violation of their rights because
the distance makes it virtually impossible.239
The restricted
jurisdiction of these courts is a major flaw of the judicial system
established by the Ley PINA.240 UNICEF has proposed expanded
multidisciplinary teams at the municipal level, including expanded
jurisdiction for these courts so that cases could actually be resolved.241
If a protective order is issued against the child’s parent, the PGN
must work to find someone to care for the child, such as grandparents,
cousins, uncles—to avoid sending the child to a shelter.242 A child’s
first line of protection should be the family.243 Children and
adolescents deprived of this protection have the right to special
protection, assistance, and alternative care.244 If a relative cannot be
located, or there is no relative who can adequately care for the child,
the State may place the child with a foster family (familia sustituta).245
Because there are too few of these available, in most cases the Peace
Judge, upon receiving a complaint, immediately orders a child to the
shelter in order to remove the child from their abusers at home.246
These children remain institutionalized throughout their cases which
can take as long as two years, and there is no process for reintegration
once children leave the shelter.247
There are six public protection shelters for children in need of
protection, all located in Guatemala City, run by the SBS. The public
In cases where the child is not housed in a shelter for the duration of their case, they
are dependent on their parents, who may very well be the accused perpetrator, to
bring them to the distant court.
242. Id. Articles 114 and 116(b) of the Ley PINA require that the PGN send a
child or adolescent to a shelter only as a last resort.
243. ANNAN, supra note 123, at 72.
244. Id. at 73.
245. Ley PINA, art. 112(g); Interview with PDH, supra note 212.
246. Interview with PDH, supra note 212.
247. Id.
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431
shelters are overcrowded.248 For example there is one shelter for
children ages zero to seventeen with a capacity for 600 children, but
currently houses 1,000 children.249 A large government shelter was
constructed in 2010 but the SBS did not separate the children into
appropriate categories based on age, sex, and treatment needs.250
Most children are sent to the country’s 130 privately run shelters,
which, on average, take a maximum of thirty or forty children each.251
The PDH monitors the private shelters but there is no process for
their regulation.252 Some private shelters do not observe minimum
standards and the Ley PINA does not provide the authority to
sanction them.253 Because the children are all mixed together, they
don’t receive special care or attention, the SBS does not employ
treatment modalities, and the shelters do not have enough trained
professional personnel.254 According to the Children’s Rights
Defender of the Office of the Human Rights Ombudsman, “There is
no control, just disorder. There is no formal structure.”255 This puts
sheltered children at risk, removing children from one situation of
abuse only to place them in a different situation of abuse.256 In rural
areas, the police or the MP often rescue children and then return them
to their families without services because there are no shelters.257
Unfortunately, their families do not know how to help them
reintegrate,258 and a significant majority of trafficking victims are
248. ODHAG, INFORME NIÑEZ 2012-2013, supra note 48, at 138; Interview with
PDH, supra note 212.
250. Id. For example there are no detox services offered for victims who come in
with an addiction; they become violent and other children in the shelter are affected.
Children with disabilities that end up in shelters have an especially difficult time.
There are private shelters that are able to cater to the needs of children with
disabilities but the State shelters do not have this capacity. Id.
251. Id.
252. Id.
253. Id.
254. Id.
255. Id.
256. Id.
257. Id.
258. Id.
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[Vol. XIII
trafficked again.259
Although the prosecution rates of traffickers remain low,260
Guatemala has made efforts to improve services to victims of
trafficking.261 There are now three specialized shelters, opened in
September 2014, with specially trained personnel who attend to
victims of sexual abuse and trafficking, run by the Secretariat against
Sexual Violence, Exploitation and Trafficking of Persons (Secretaría
Contra la Violencia Sexual, Explotación y Trata de Personas, or SVET).262
However, attitudes toward children have not improved. Employees
in state-run shelters treat children and adolescents as if they were
delinquents, re-victimizing them with severe punishments and in
260. Interview with Colop, supra note 166. “[The reason for such low prosecution rates is that] we only just created the institutions.” Interview with José Cortés
Chacón, Subsecretary for the Secretariat Against Sexual Violence & Trafficking
(Subsecretaria, Secretaria Contra la Violencia Sexual y Trata de Personas or SVET), in
Guatemala, Guat. (Oct. 23, 2014) (on file with author).
261. Recognizing that children and adolescents are the demographic most
affected by trafficking in Guatemala, and that existing laws, including criminal laws
and the Ley PINA, proved insufficient in effectively combatting trafficking, Congress
passed the Ley Contra la Violencia Sexual, Explotación y Trata, or Ley VET, Decreto
9-2009 (Law Against Sexual Violence, Exploitation, and Trafficking, Decree 9-2009
(Guatemala). The Ley VET recognizes sixteen different forms of trafficking. The most
common forms of trafficking of children and adolescents in Guatemala are sexual
exploitation and sex trafficking, irregular adoption, forced labor, and child
pornography. The Office of the Prosecutor on Trafficking has seen a great increase in
funding, resulting in four times as many attorneys, specialized units for pornography,
labor exploitation, sexual exploitation, and trafficking. There are fifty-eight
investigators that work in the office of the prosecutor for trafficking, and fifty-eight
in the PNC, each having national jurisdiction. There are nearly sixty investigators for
sexual exploitation as well.
The United States Immigration and Customs
Enforcement (“ICE”) helped to select police from the academy that were suitable for
a three month course and special training on investigation focused on crimes of sexual
exploitation and trafficking. Interview with Colop, supra note 166; Interview with
Cortés Chacón, supra note 260.
262. Interview with PDH, supra note 212. The shelters are located in Guatemala
City, Coatepeque, and Vera Paz, Cobán. Interview with Cortés Chacón, supra note
260. Each shelter can house approximately thirty children at one time, and each stays
for an average of two months. After two months, children are transferred to
Protection Shelters (Hogares de Protección), operated by the SBS, or go back to their
families. Id.
Summer 2016]
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433
some instances, through extreme systems of control.263
In addition to improvements needed in the system of protective
shelters, Guatemala must improve protection and sheltering of
children and adolescents who testify against those who violate their
rights.264 Children and adolescents fear serving as witnesses, because
they may be severely injured or killed by the person they are testifying
against.265 The Law Against Sexual Violence, Exploitation, and
Trafficking of Persons (Ley Contra la Violence Sexual, Explotación, y
Trata de Personas, or Ley VET)266 and the Ley PINA do not provide for
any special protection for witnesses.267 Only the Law Against
Organized Crime (Ley Contra la Delincuencia Organizada)268 has
provisions for relocation of victims—so only when charges are
brought under that law can a witness receive special protection.269
Under the Ley PINA or the Ley VET, a child or adolescent willing to
testify can be taken to a hotel for protection during the trial but after
the proceeding there is no protection.270 Other methods utilized to
protect witness informants are the Cámara de Gesell and testimony
taken in advance, often by telephone to try to avoid asking the victim
to testify in open court.271
The Ley PINA certainly brought awareness to the need to
264. Interview with Colop, supra note 166; Interview with Dubón Benfeldt, supra
note 107; Interview with Cortés Chacón, supra note 260; Interview with Gonzáles,
supra note 151; Interview with Judge supra note 71.
265. Interview with Gonzáles, supra note 151, at 6.
266. Ley VET, supra note 261.
267. Cases where witnesses will testify against a criminal defendant are almost
exclusively individual crimes and not related to gangs or organized crime. Interview
with Colop, supra note 166.
268. Law Against Organized Crime (Ley Contra la Delincuencia Organizada)
Decreto 21-2006 (Guatemala), http://www.wikiguate.com.gt/w/images/0/01/Ley_Con
tra_la_Delincuencia_Organizada.pdf.
269. Interview with Cortés Chacón, supra note 260.
270. Interview with Cortés Chacón, supra note 260. “The MP washes his hands
of the witness, who is on their own when the trial is over.”
271. The Cámara de Gesell is a method of blocking the witness from the view of
the perpetrator while testifying. Mr. Colop said that this method is used in about
ninety percent of the cases. Interview with Colop, supra note 166.
434
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[Vol. XIII
establish protocols for immediate protection measures to safeguard
children and adolescents when their rights are violated.272 From the
foregoing, however, it is clear the shelters need more oversight,
organization and protocols, trained personnel, and follow-up in order
to avoid further victimization.
Returning to the procedural requirements for children whose
rights are violated, after the Peace Judge makes the determination
regarding which protective measures to apply, the case then moves to
the Tribunal for Children and Adolescents (Juzgado de la Niñez y
Adolescencia) where an Evidentiary Hearing (Audiencia de Conocimiento
de Hechos) 273 will commence within at least ten days of the Hearing for
Protective Orders.274 The Tribunal for Children and Adolescents has
jurisdiction to rule on the merits of cases involving children whose
rights have been threatened or violated that arise within its
departmental jurisdiction.275 There are twenty Tribunals for Children
and Adolescents in the country’s twenty-two departments.276 Each
274. Ley PINA, art. 118. The Evidentiary Hearing may be scheduled thirteen
days after issuance of protective orders if it is to make up for the distance necessary
to travel to the court. This is permissible under article 48 of the Law of the Judiciary,
Decree 2-89 (Ley del Organismo Judicial, Decreto 2-89), https://www.rgp.org.gt/
docs/legislacion_registral/Ley%20del%20Organismo%20Judicial.pdf; CENTRO DE
INFORMACIÓN, DESARROLLO Y ESTADÍSTICA JUDICIAL, ORGANISMO JUDICIAL, supra note
233. Information from the Peace Judge, PNC, PGN, MP, and the child victim will be
presented at the Fact Hearing. Id.
276. The twenty Child and Adolescent Tribunals are located in: Cobán, Alta
Verapaz; Salamá, Baja Verapaz; Chimaltenango, Chimaltenango; Escuintla, Escuintla;
Guatemala, Guatemala; Villanueva, Guatemala; Mixco, Guatemala; Huehuetenango,
Huehuetenango; Puerto Barrios, Izabal; Jalapa, Jalapa; Jutiapa, Jutiapa; San Benito,
Petén; Santa Cruz del Quiché, Quiché; Coatepeque, Quetzaltenango; Quetzaltenango,
Quetzaltenango; La Antigua Guatemala, Sacatepéquez; Malactatán, San Marcos;
Cuilapa, Santa Rosa; Sololá, Sololá; Mazatenango, Suchitepéquez; Zacapa, Zacapa.
There are no Child and Adolescent Courts in the departments of Chiquimula; El
Progreso; Totnicapán; Retalhuleu. Interview with Ságüil, supra note 64; Órganos
Jurisdiccionales de Niñez y Adolescencia, ORGANISMO JUDICIAL, http://www.oj.gob.gt/
estadisticaninez (last visited Mar. 29, 2015); Guatemala, CENTRO DE ESTUDIOS DE
JUSTICIA DE LAS AMÉRICAS, http://www.cejamericas.org/reporte/2008-2009/pdf4/Guate
mala_08-09.pdf (last visited Mar. 29, 2015).
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435
tribunal has one social worker, except in Guatemala City, which has
four social workers in each tribunal.277
When a case is brought against an individual who has violated
the rights of a child, the hearings in the Child and Adolescent
Tribunals should take place within ten days278 but in practice take two
to five months.279 Some procedures to declare violations of the rights
of family, such as abandonment, can take one to two years.280
The final step, after the Evidentiary Hearing, is the Definitive
Hearing (Audiencia Definitiva) wherein a different judge reviews the
evidence and listens to the oral recording of the Evidentiary
Hearing.281 This judge then issues a resolution that same day or, at
most, within three days.282 Resolutions determine what happens to
children in need of long-term protection or to unsuitable parents,
among others.283
The backlog and issues with protections measures of the Child
and Adolescent Tribunals are significant imediments to their ability
to adequately protect children and to prevent future abuses.
Nonetheless, the creation of these specialized courts is a significant
advancement toward the effective protection of children’s rights in
Guatemala.
3. Adolescents in Conflict with the Law
This Subsection addresses part two of the Ley PINA, regarding
“Adolescents in Conflict with the Law.” A child under the age of
thirteen is not subject to the penal code, but rather will be sent to
psychiatric, medical or educational centers if they commit a crime.284
A child under thirteen who commits a crime is reintegrated into the
277. Goicoechea, supra note 236, at 33.
279. Goicochea, supra note 236.
280. Id.
282. CENTRO DE INFORMACIÓN, DESARROLLO Y ESTADÍSTICA JUDICIAL, ORGANISMO
JUDICIAL, supra note 233; Ley PINA, art.123(c) and (d).
283. Ley PINA, art. 112 and 115.
284. Ley PINA, art.138.
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[Vol. XIII
family where cooperation rules are imposed, such as requirements
that the child attend school.285 Often these requirements are not
followed.286 According to the Prosecutor of Minors, if a child has been
abandoned and has no available family to whom they can be turned
over to, the State simply leaves them to fend for themselves—a child
under the age of thirteen.287 These children are easy and common
targets for gang recruitment.288
In Guatemala, a minor between the ages of thirteen and
seventeen is considered an adolescent and subject to criminal
liability.289 If an adolescent is caught in the act of committing the
crime, the police bring the adolescent immediately to the MP and
within six hours must be brought before a judge competent to hear
the case.290 In practice, however, this six-hour rule is never
followed.291 The Ley PINA requires that a case against an adolescent
charged with a crime be brought by a specialized prosecutor in the
Minor Prosecutor’s Office (Fiscalía de la Niñez o del Menor), which
operates under the MP.292 There is one such office for the entire
country, located in Guatemala City.293 Under the Ley PINA,
adolescents have the right to be represented by a public defender.294
In practice, however, children are not guaranteed legal aid in
instances where they cannot afford a private lawyer.295
285. Interview with González, supra note 151.
286. Id.
287. Id.
288. Id.; Interview with Rodenas, supra note 61.
289. Ley PINA, arts. 132 and 133.
290. Ley PINA, art. 195. In places where the MP does not have an office, the
Peace Court judge should immediately resolve the matter. Id.
291. Interview with Judge, supra note 71. “The six hour rule is not used, we do
not have this in practice. It does not work.” Id.
293. Interview with Gonzáles, supra note 151.
294. Ley PINA, arts. 154, 167.
295. Legal Assistance for Children in Conflict with the Law, THE INT’L JUVENILE JUST.
OBSERVATORY, http://www.oijj.org/legal/situation.php?c=4&p=74. Note, however,
that a Judge in the Court of First Instance for Adolescents in Conflict with the law
rebutted this claim and remarked instead that all children in this court in the capital
city always have representation. An estimated ninety percent to ninety-five percent
Summer 2016]
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437
There are two venues for minors who are charged with a crime:
the Courts of Peace (Juzgados de Paz) and the Courts of First Instance
(Juzgados de Primera Instancia).296 An appeal must be filed within three
days of sentencing.297 There is one specialized appellate court in the
country for children and adolescents, the Sala de la Corte de Apelaciones
de la Niñez y Adolescencia.298 Less serious crimes, those carrying a
maximum sentence of less than three years, can avoid a full trial and
are resolved before judges in the Peace Tribunals.299
In cases where a complaint is filed (the child is not caught in
commission of the crime), the MP leads the investigation, including
direction of the PNC, which should not exceed a period of two
months.300 Once the MP files charges, the adolescent must be notified
within one day, and the preliminary hearing (procedimiento intermedio)
must begin within five to ten days.301 In actuality, investigations take
much longer, partially due to limited resources.302 For charges based
on less serious crimes, such as petty theft or an issue between
neighbors, the MP will first attempt to resolve the case through
conciliation.303 If a minor is charged with committing a serious crime,
such as murder or rape, the MP will initiate an investigation.304
Prosecutors present evidence before a judge in order to obtain an
of adolescents in conflict with the law are represented by public defenders. Interview
with Judge, supra note 71.
296. Id.
298. ORGANISMO JUDICIAL, supra note 235; CENTRO DE ESTUDIOS DE JUSTICIA DE LAS
AMÉRICAS, supra note 276; Ley PINA, art. 265.
299. Id.
300. Extensions are permissible. Ley PINA, arts. 199–200; Interview with Colop,
supra note 166.
302. In the Prosecutor of Minors Office, for example, there is only one vehicle for
the entire office of twenty-two, resulting in attorneys traveling to court on public
transportation which is not possible when traveling with evidence, including
machetes and guns. And there are only four investigators to investigate all cases
(police do not investigate). Interview with Gonzáles, supra note 151.
303. Ley PINA, art. 186; Interview with Gonzáles, supra note 151.
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[Vol. XIII
arrest warrant.305
The deprivation of liberty (jailing) of adolescents in conflict with
the law is supposed to be used as a last resort, both in pretrial
detention and upon conviction,306 but a Judge in this court remarked
that in actual practice this is rarely the case due to the gravity of crimes
now committed by minors in the country.307 The judge explained that
within the last five to ten years, adolescents have started to commit
increasingly serious crimes such as assassinations, femicides where
women are dismembered and cut up into pieces, violent rape, and
murder associated with transit obstruction.308 Deprivation of liberty
is acceptable under article 182 of the Ley PINA due to the gravity of
these crimes.309
There are four juvenile detention centers in the country: three for
boys and one for girls.310 All four are in Guatemala City.311 The SBS
is in charge of the juvenile detention centers.312 Detention centers are
not divided by crime and age.313 Furthermore, despite the clear right
under the Ley PINA to be incarcerated separately, and even held in a
306. Ley PINA, arts. 222(a)–(c), 252 (pertaining to detention upon conviction), &
art. 182 (pertaining to pre-trial detention). An adolescent may be detained pending
trial but only in exceptional cases where less serious means are unavailable, especially
where the person charged is thirteen to fifteen years old. Ley PINA, art. 182. This
article lists which cases may be deemed “exceptional” and would thus permit pretrial
detention of an adolescent, including cases with flight risks, or where the crime
committed is one of serious sexual or physical violence. Those detained before the
trial must be in a separate detention center and may never be detained in the same
place as the general prison population for adolescents. Id. Ley PINA, art. 195 sets
forth criteria for pretrial detention.
308. Interview with Judge, supra note 71. Additionally, many of these
adolescents have been abandoned by their parents, so they are detained because they
are deemed flight risks. Id.
311. Id.
312. Interview with Gonzales, supra note 151; Interview with Judge, supra note
71.
313. Interview with Gonzales, supra note 151.
Summer 2016]
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439
separate police station from adult detainees,314 children are
incarcerated with adults due to overcrowding, a violation of the
Convention on the Rights of the Child.315 Human Rights Watch
reports that children have been raped and beaten by adult detainees,
and compelled to pay money in order to have a place to sleep.316
Societal attitudes about children are reflected in police treatment
of youth in Guatemala. According to the U.S. Department of State,
youth detained by police are subject to continual physical and sexual
abuse.317 Detention centers are often flooded during the rainy season;
there is no light or air circulation.318 Other problems in detention
centers include a lack of staff trained to work with children, lack of
standards of care, lack of reintegration programs, and a concentration
of centers in cities, making it difficult for families in rural areas to
visit.319
Consequently, these prisons ultimately become training grounds
for criminality, as well as a link for youth, upon release, to the more
sophisticated organized crime networks.320 In response to State efforts
to curb abuses that prison guards commit against youth detainees,
guards have learned to beat detainees in places that are not easily
visible so that a judge does not recommend prosecution.321 The
315. Id. at art. 37, Convention on the Rights of the Child, supra note 43; HUMAN
RIGHTS WATCH, PROMISES BROKEN: AN ASSESSMENT OF CHILDREN’S RIGHTS ON THE 10TH
ANNIVERSARY OF THE CONVENTION ON THE RIGHTS OF THE CHILD (1999), https://www.
hrw.org/legacy/press/1999/nov/children.htm.
316. HUMAN RIGHTS WATCH, supra note 315.
317. ST. DEP’T HUM. RTS. 2011, supra note 105, at 19; U.S. DEP’T OF ST., GUATEMALA
2013 HUMAN RIGHTS REPORT 1 (2013), http://www.state.gov/documents/organization/
220657.pdf.
318. “The Ley PINA is just a window dressing on this issue. It’s a torture center.
Not even animals could live there” (describing the juvenile detention centers).
Interview with Judge, supra note 71.
319. Interview with Judge, supra note 71; Interview with Gonzáles, supra note
151.
320. MANZ, supra note 46, at 5. “They enter as thieves and leave as murderers.”
Interview with Gonzales, supra note 151. See also Interview with Galindo, supra note
63; Interview with Briere Samoya, supra note 156.
321. Interview with Judge, supra note 71; Interview with Gonzáles, supra note
151.
440
4/27/2016 4:23 PM
[Vol. XIII
treatment of youth convicted of crimes does not lead to rehabilitation,
but toward further brutalization.
IV. Possibilities for Improving the Protection of
Children’s Rights in Guatemala
Guatemala successfully passed a forward-thinking and
progressive law that incorporates the major tenets of the Convention
on the Rights of the Child. Yet, as we have seen, children and
adolescents in Guatemala still face egregious violations of their rights.
Part Four looks at what those who work directly on these issues in
Guatemala—in the government, local NGOs, and international
organizations—have identified as steps the State could take to
improve child and adolescent protection in Guatemala.
Part of the problem can be attributed to the fact that parts of the
Ley PINA were written bare bones, with policy meant to be
supplemented by the National Commission on Children and
Adolescents—which Congress never funded. Thus, we are left with
a law that is bold on paper but weak in actual protection.322 As the
head of the Human Rights Ombudsman for Children and Adolescents
put it, “We achieved a measure of sensitivity and a weak system of
protection . . . because Congress does not make it a priority.”323
One suggestion, proposed by UNICEF, and backed by local and
international NGOs,324 is that Congress should pass a supplemental
law that would give the CNNA the power to execute its own policies,
thus encouraging a more streamlined and coordinated
322. See UNICEF, ESTUDIO JURIMÉTRICO GUATEMALA 2011 (2012); Interview with
Sánchez, supra note 66; Interview with Galindo, supra note 63; Interview with Briere
Samoya, supra note 156; Interview with Judge supra note 71. Some feel that the Ley
PINA was passed as a vain attempt to show international organizations that the State
was taking steps to comply. But with no budget attached, the law is seen as merely a
farce. See Interview with Villarreal, supra note 44.
323. Quote by Gloria Castro, Interview with PDH, supra note 212.
324. Refugio de la Niñez, Plan Internacional, for example. Interview with Dubón
Benfeldt, supra note 107; Interview with Galindo, supra note 63; Interview with
Sánchez, supra note 66.
Summer 2016]
4/27/2016 4:23 PM
441
implementation of the law.325 Further, the State must focus on
establishing Municipal Commissions on Children and Adolescents, as
the Ley PINA requires, so that violations of children’s rights can be
handled by the State, not NGOs, at the local level.326
If there is to be a meaningful implementation of this law to
improve protection of children and adolescents in Guatemala, the
State must invest more.327 An increased budget should be allocated
toward improvement of shelters, increased specialized training for
staff, and additional services. The State must prioritize children’s
issues, and invest accordingly.
Furthermore, the Ley PINA does not provide preventive
mechanisms. The result is that the governmental bodies charged with
protecting the rights of children only have the capacity to react to past
abuses rather than to proactively prevent future abuse.328 The State
must increase its focus on preventive measures, including specialized
training for those individuals and institutions which interact with
children and adolescents the most. Priority for such specialized
training should begin with those who work in shelters and detention
centers, as well as police, judges, and prosecutors. Preventive
measures and educational campaigns are needed to begin a cultural
shift that could change how parents think about their children, and
restructure the mechanisms by which government officials interact
325. The CRC recommended that the position of the CNNA be elevated; NGOs
attempted to get legislation passed that would make the CNNA independent of the
SBS and grant it an operational capacity. The PGN issued an opinion (un dictamen),
in line with CRC recommendations, in 2012. The dictamen opined not only that the
CNNA should have its own budget, but also that it be linked to the Executive Branch.
The dictamen was ultimately never implemented. Interview with Galindo, supra note
63; Interview with Sánchez, supra note 66; Interview with Alvarado Fuentes, supra
note 76.
326. Interview with PDH, supra note 212; Interview with Sánchez, supra note 66;
Interview with Judge, supra note 71.
327. ODHAG INFORME NIÑEZ 2012-2013, supra note 48, at 164; Interview with
Colop, supra note 166; Interview with Galindo, supra note 63; Interview with Cruz,
supra note 106; Interview with Ibarra, supra note 117; Interview with Villarreal, supra
note 44; Interview with Ságüil, supra note 64; Interview with González, supra note 151;
Interview with Sánchez, supra note 66; Interview with Rodenas, supra note 61.
328. Interview with Colop, supra note 166.
442
4/27/2016 4:23 PM
[Vol. XIII
with youth victims and adolescent criminal defendants.
Violence against children and adolescents is a complex and
multi-causal phenomenon. The State’s approach to curb violence
against children must be holistic, simultaneously taking on all factors
that create risk at the individual level—at home and in the
community—and in society in general.329 Experts warn that “political
and social responses that fail to recognize postwar violence as a broad
condition in which endemic poverty, rapid structural adjustment, and
a lack of law enforcement are clustered, risk compounding rather than
ameliorating [the high levels of violence in Guatemala].”330 In
addition to an increased attention to preventive measures, the State
must amplify and create rehabilitative programs. There are currently
insufficient programs to rehabilitate and reinsert children into society.
As a result, the root causes of these problems go unaddressed.331
There must be follow-up to properly rehabilitate children whose
rights have been violated.
The PDH warns that when the public is consistently confronted
with a system that does not work, government officials and the public
grow to accept this.332 If one reports abuse committed against a child
and nothing happens, people lose trust in the law.333
This
delegitimizes the State. If Guatemala does not improve its system of
protection for children and adolescents, the legal framework it has
developed will be rendered meaningless.
329.
60, at 26.
330.
331.
332.
333.
UNICEF, LA VIOLENCIA CONTRA NIÑOS, NIÑAS, Y ADOLESCENTES, supra note
Benson, Fischer & Thomas, supra note 45, at 53.
Interview with Briere Samoya, supra note 156.
Interview with PDH, supra note 212.
Id.
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