The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums

Paul E. McGreal[*]

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Imagine that you are mayor of a small town that has a picturesque public park, removed from the town center, where your residents come to escape the hustle and bustle of everyday life.  To make the space inviting, you have built a gazebo, a picnic area, and a playground for the local children.  You have also allowed a local veterans group to erect a permanent monument honoring those from the town who died in war.  Then, a local group asks permission to hold a political rally in the park.  You deny the request, explaining that the park is for peaceful recreation and not for noisy demonstrations.

By denying the political rally, you have violated the First Amendment.  The First Amendment severely limits the government’s power to place content-based restrictions on speech in traditional public forums, which the Court defines as public parks, streets, and other “places which by long tradition or by government fiat have been devoted to assembly and debate.”[1] Further, government may not ban speech activities in such forums.  Thus, your town must allow at least some assembly and debate in the park.

Next, a local religious group asks permission to place a permanent monument in the park.  They explain that the monument will display the central tenets of their faith, which they consider their equivalent of the Ten Commandments.  You deny this request and explain that the only permanent structures allowed are those that serve the park’s recreational purpose.  The religious group points out, however, that you have already allowed placement of a veterans monument.  You respond that a war memorial is a more appropriate message for a public park than a religious monument.  The religious group catches your slip here.  They explain that the park is a traditional public forum, and that you are excluding their speech (the monument) from that forum (the park) based on its content (a religious monument rather than a war memorial).  As a result, they claim, your decision to exclude the religious monument violates the First Amendment.  Incredulous, you object that a permanent monument must be different than more temporary speech, such as a rally or movable display.  After all, if the city had to accept every monument offered by a private group, the park would soon look like a graveyard peppered with headstones.  The religious group persists.  Are they right?

This November, the Supreme Court will hear arguments on this question in City of Pleasant Grove v. Summum.[2]   The precise issue is whether placement of a permanent monument is part of the public’s right to use a traditional public forum.  This question falls in a gap in current public forum doctrine, and the lower courts have reached conflicting results in applying that doctrine.  On the one hand, the Tenth Circuit held in City of Pleasant Grove that permanent monuments are within the public’s right to use a traditional public forum.  This ruling bars the government from regulating private monuments based on their content, effectively leaving a choice between allowing all or no such monuments.  On the other hand, other courts have held that the public’s right to use a traditional public forum does not include placement of permanent structures.[3]   These courts typically announce the rule as a matter of judicial fiat, offering little, if any, reasoning.[4]   Their logic is internally inconsistent and, if applied generally, would lead to unacceptable consequences.

Both of the lower court approaches ultimately prove unsatisfactory because the decisions lack a principled basis to distinguish temporary speech from permanent monuments.  This is not surprising given that the Supreme Court’s existing public forum doctrine provides no basis for doing so.  The lower courts, then, have been trapped in the current doctrinal box.

On Jurisdictional Elephants and Kangaroo Courts

Stephen I. Vladeck[*]

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One need not look far these days to find proposals for how to “fix” U.S. detention policy, especially with respect to the non-citizens detained as “enemy combatants” at Guantánamo Bay, Cuba.[1] In the aftermath of the Supreme Court’s June decision in Boumediene v. Bush[2]—particularly its conclusion that the Guantánamo detainees have a constitutional right to judicial review[3]—such proposals have taken on an added sense of urgency, as commentators of all stripes grapple with the (now very real) possibility that such review will lead to the frustration and/or invalidation of existing policies.[4]

Within this burgeoning literature, though, the military tribunals convened at Guantánamo under the Military Commissions Act of 2006[5] (MCA) have received curiously short shrift. Part of the problem, I suspect, is that compared to the hundreds of individuals held at Guantánamo (and the thousands in U.S. custody elsewhere) who are not facing trial, the number of individuals potentially subject to trial by military commission is comparatively small. I also imagine that the relative neglect of the commissions is at least to some degree a result of the absolutism that pervades much of the commentary relating thereto: some view the Guantánamo commissions as categorically unconstitutional; some view them as both good policy and legally sound; some view them as the only way to deal with the thorny problems posed by international terrorism.

Fortunately, Professor McNeal falls into none of these camps. Rather, his thoughtful essay[6] balances a nuanced critique of the existing commission structure with an understanding of the difficulties Article III courts would face in trying the same defendants for the same offenses. Moreover, Professor McNeal is rightly skeptical of the increasingly common calls for a hybrid “national security court” to handle the prosecution of a class of terrorism-related offenses and offenders,[7] suggesting that there are significant obstacles in the way of any transition to such a model.

Diversity and Race-Neutrality

Kenneth L. Marcus[*]

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The most important, elusive, and misunderstood aspect of federal affirmative action jurisprudence is the requirement of “serious consideration.”  Before commencing or continuing race-conscious, nonremedial affirmative action plans, public institutions, including colleges and universities, must apply “serious, good faith consideration” to workable race-neutral alternatives (RNAs).[1]  This requires not only that less racially intrusive alternatives be unavailable, but also that institutions establish this unavailability through a largely undefined process of “serious consideration.”[2]  The measure one should use to establish this (un)availability remains unknown.  In higher education, since RNAs typically tout diversity, it is easy to assume that they should be measured against their ability to increase the representation of previously underrepresented student racial and ethnic groups.  In fact, such measures raise serious constitutional problems to the extent that they indicate that the actual goal of the RNA’s is racial balancing.  This Essay argues that because the only legally viable purpose for nonremedial race-conscious admissions practices are “the educational benefits that flow from a diverse student body,”[3] only direct measures of those educational benefits are proper for “serious consideration.” In other words, RNAs must be evaluated against their ability to raise actual educational achievement.

Dysfunctional Deference and Board Composition: Lessons from Enron

By Bernard S. Sharfman & Steven J. Toll[*]

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Introduction

It has been over seven years since the public was first made aware that Enron (or the “Company”) was a troubled firm,[1] ultimately doomed to bankruptcy and much litigation, both civil and criminal.  Yet, the Enron debacle continues to fascinate researchers and the general population alike.  Over the one-year period from September 3, 2007 to September 3, 2008, the Social Science Research Network has posted seventy-one papers that referenced Enron in their abstracts.[2]  What appears most baffling to many observers, especially those interested in corporate governance, is the inability of Enron’s board of directors to get a handle on the massive fraud that occurred under its watch.  For example, Charles M. Elson, director of the Center for Corporate Governance at the University of Delaware, stated in regard to the repeated warning signs that the Enron board received during this time, “[t]hey should have inquired further,” and “[t]hey were unwilling to ask and pursue tough questions.”[3]  However, for all the research done, a satisfactory explanation has yet to be provided for why the Enron board—once considered one of the best boards of a large publicly held firm[4] in the United States[5]—failed to detect the fraud that ultimately destroyed the company.

Something was obviously amiss at the top of the Enron pyramid.  We assert that it had something very much to do with the composition of the Enron board, despite the largely impressive backgrounds of its individual members.  We, of course, are not alone in this opinion, as the fall of Enron has led to enhanced independence requirements for board members.[6]

We certainly endorse the board member independence requirements of the stock exchanges and the enhanced independence guidelines as recommended by proxy advisory companies that have developed as a response to the Enron scandal.[7]  Nevertheless, it is our position that corporate boards of publicly held firms would be better off and less prone to error if other rules or guidance were in place that required or strongly encouraged corporate board nominating committees to select members who were less prone to what we refer to below as “dysfunctional deference.”  To implement this critical change, we recommend: (i) limiting the number of former or current executive officers allowed to serve as outside directors; (ii) setting term limits for outside directors; (iii) diversifying the background of outside directors; and (iv) requiring outside directors to spend a minimum amount of time on board business.

A Comment on Rosenberg's New Edition of The Hollow Hope

By Richard Delgado[*]

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Gerald Rosenberg’s new edition of The Hollow Hope[1] repeats his earlier book-length argument against the prospects of social reform through law.[2]  Complete with tables, charts, and updated statistics, the new edition replies to his critics and extends his analysis to a number of new areas, including same-sex marriage.[3]  The new material reinforces his original conclusion that legal rulings fail to spark social progress not already underway.[4]

Therefore, reformers with limited resources and energy should direct their efforts to avenues such as electoral politics, grassroots organizing, and street activism.  Nothing is wrong, according to Rosenberg, with pressing for favorable legal rulings,[5] but one should not hold out unrealistic hopes for their efficacy.  Roe v. Wade,[6] for example, did little to increase a woman’s access to abortion services.[7]  Brown v. Board of Education[8] produced a negligible increase in the proportion of black schoolchildren attending integrated schools, and rulings upholding gay marriage, according to the new edition, have yielded similarly unimpressive results.[9]

If Rosenberg is right, as I believe he is, regarding the difficulty of achieving social reform through the judicial branch, why is his thesis so counterintuitive?  In this Essay, I aim to accomplish two goals: explain why Rosenberg’s analysis seems to fly in the face of common knowledge, and, second, why his argument is nevertheless sound.  Doing so will entail explaining a number of mechanisms that inhibit social change.