American Prison System’s Human Rights Violations

*Kamryn Washington

I. Introduction

When the United Nations International Experts Advancing Racial Justice and Equality in Policing, visited detention centers in several different cities in the U.S., including Washington D.C., Chicago, and Atlanta, between April  and May of 2023, they saw blatant racism, child slave labor, and pregnant women giving birth in shackles.[1] Their report released on September 28, 2023 describes the shocking human right violations in the U.S. criminal system, particularly they witnessed inmates[2] “freezing without blankets, covering themselves with plastic bags to stay warm, going hungry, denied prescribed medications, suffering delusions and stuck in dirty living quarters.”[3]

The investigators discovered disturbing issues with the detention centers–one of the most striking aspects being “stark racial disparities among the subjects of the worst rights violations, including practices that are rarely documented in comparable countries.”[4] The report discussed how the “U.S. is the only country in the world that sentences children to life without parole,” with 62% of juveniles serving life without parole being of African descent.[5] It also discussed how the prison system is a “free Black workforce” and how Black pregnant women are more likely to be shackled during labor, increasing the chances of a stillborn.[6] Finally, the investigators discovered an “incommunicado detention” center in Chicago, where an arrest was made and the detainee was not provided access to a lawyer and his family was not provided information about his whereabouts.[7] 82% of the detainees in that facility were Black.[8]

To many Americans, the UN report is not surprising. If you have family members who have been in the prison system, you likely are aware that you are no longer treated as an American citizen once the government charges you with a crime. Many local efforts have been made to help fix these atrocities, yet little improvement have been made. For example, the Maryland Office of the Public Defender, Juvenile Protection Division, investigated Baltimore County Detention Center (BCDC) and documented many federal law violations; however, BCDC has made little to no change. [9]  Hopefully, the UN report will help more Americans care that the prison system is another form of racial slavery–not always used to bring about justice but instead used to create further injustices and inequities among minorities.

II. Human Right’s Violations in Baltimore’s Juvenile Detention Center

The Thirteenth Amendment freed all enslaved people—except those charged with a crime.[10] This exception has caused Americans to disregard the mistreatment of citizens who are convicted of a crime.[11] The UN issued a report detailing the human rights violations that occur in America’s prison system on a national level, but such abuse is also happening right here in Maryland.[12] On March 6, 2023, the Maryland Office of the Public Defender released a letter urging an immediate transfer of minors from the BCDC to a state facility, alleging Baltimore County correctional services had failed to address years of violating federal laws enacted to protect minors and students with disabilities.[13] In 2018, the Juvenile Protection Division (JDP) investigated the BCDC.[14] It discovered that juveniles were not separated from adult prisoners, there was inadequate supervision of juveniles, and the prison failed to provide education and mental health care as required by the Individuals with Disabilities Education Act (IDEA).[15]

The JDP investigation found that kids and teenagers at the BCDC are denied access to basic health, hygiene, and education needs.The JDP investigation revealed that newly detained kids and teenagers sleep on mats on the floor of their cells, despite rodents and human feces infesting the units.[16] The kids and teenagers detained at the BCDC remain locked in their cells for 23 hours each day. Individually, they may be permitted out of their cells around 2:30 a.m. to use the phones and face a Hobson’s choice of showering or speaking to their family––not both.[17] The kids and teenagers detained at the BCDC receive no laundry services and must wash their own jumpsuits and underwear in the sink in their cell. Their only method to get the attention of guards involves banging on their cell doors, which often goes ignored.[18]

While the kids and teenagers remain in the Intake Unit, the facility provides no schooling, despite several individualized education plans (IEPs) that federally mandate these services.[19] Additionally, requesting medical treatment is an arduous process resulting in children not seeing the doctor or nurse—before processing a sick call, these children must have a $4.00 co-pay authorized by Correctional Services § 2-118 subtracted from their inmate account.[20] Several of the children detained are Children in Need of Assistance (CINA) and do not have parents, but rather, a DSS Social Worker overseeing their legal care.[21] Consequently, they do not have access to necessary funds for medical care. Children with concussions and dental issues requesting to see a doctor have been documented waiting for 30 days for an appointment.[22]

The kids and teenagers detained also do not go outside. One child, who had been held for two years at the time of the report, had not been outside once during his detention.[23] Additionally, the children detained also do not participate in any recreation or large muscle exercises.[24]

The kids and teenagers detained do not receive mental health services despite requests to speak to a counselor (BCDC asserts juveniles receive unspecified “behavior counseling”).[25] The children detained must purchase their own hygiene products like soap and shampoo.[26] Food provided is unhealthy and inadequate,[27] and there is poor food hygiene, as plates are shoved through an opening in the cell door.[28] Additionally, if the child is asleep or simply does not answer to receive the tray, no food is given.[29]

Despite the JDP’s findings, it is now 2023, and things have yet to improve.[30]

III. Implications

Congress has enacted many federal statutes to address the appalling treatment of children in the prison system, including Juvenile Justice and Delinquency Prevention Act (JJDPA), which requires juveniles to be separated from adults unless there is reasonable cause, and the Prison Rape Elimination Act (PREA), which sets up regulation to help mitigate sexual abuse among juveniles in prison.[31] Still, such regulations rarely hold prison systems accountable because the only consequence of violating the Acts is a potential decrease in funding.[32] Managers of the prison systems are supposed to respond to the Public Defenders’ accusations of abuse; however, the response is often short, and failing to respond does not lead to enforceable consequences.[33]

Considering the monumental findings from the 2023 UN report, it is clear that BCDC is not the only detention center openly violating fundamental human and constitutional rights.[34] Children are arrested and detained prior to being convicted of a crime, denied efficient education and mental health treatment, and once they are free, they have long-term mental health issues resulting from the mistreatment that often leads them back to prison.[35] If more powerful institutions speak up about the nationwide racial prison abuse in America, more people will open their eyes to the mistreatment and help create real prison reform.

IV. Conclusions

Currently, African Americans are five times more likely to be incarcerated, with an estimated three out of four Black men expected to serve time in prison.[36] Many scholars have written books on mass incarceration as the new Jim Crow; however, few civil rights leaders are fighting for prisoner’s rights.[37] Most prisoners lack the resources to fight for their rights, so many acts and regulations are enacted to help the problem of prison abuse, but they are rarely enforced and therefore, legal tools passed for their benefits are not self-effectuating.[38] Many people write prisoners off as people who deserve mistreatment because of their alleged actions.[39] The stakeholders and victims most directly affected by these abuses do not have the political or legal capital to effectuate enforcement of laws designed to protect them. To believe in human rights is to fight for the human rights of all, so hopefully, this UN report open up Americans’ eyes so they can notice the genocides going on in their backyard. Thus, lawyers must work to enforce and strengthen prisoner’s rights enacted by Congress, yet rarely enforced.

*Kamryn Washington is a second-year student at the University of Baltimore School of Law. At school, she enjoys being a Writing Fellow, a Law Review Staff Editor, a Research Assistant for Professor Nancy Modesitt, a Teaching Assistant to Professor Michael Meyerson, and a Law Scholar for Professor John Bessler. When not in school, she enjoys serving as a judicial intern to the Honorable Judge Julie R. Rubin at the United States District Court District of Maryland. During her first-year summer, Kamryn was a legal intern at Maryland Volunteer Lawyers Service. In May, she is excited to join Semmes Bowen and Semmes as a summer associate.

[1] Daniel Dickinson, U.N. Rights Experts Slam ‘Systemic Racism’ in US Police and Courts, UN News (Sept. 28, 2023), https://news.un.org/en/story/2023/09/1141652.

[2] Id.

[3] Sam Levin, UN Group to Tour Los Angeles Jails Accused of ‘Squalid, Inhumane’ Conditions, The Guardian (Apr. 28, 2023), 

https://www.theguardian.com/us-news/2023/apr/28/united-nations-tour-los-angeles-jails-meet-families.

[4] Dickinson, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Letter from Natasha M. Dartigue, Pub. Def., Md. Off. Pub. Def., to Crim. Just. Stakeholders (Mar. 6, 2023) https://www.wmar2news.com/infocus/officials-working-to-improve-conditions-for-kids-held-at-baltimore-county-detention-center [hereinafter “Dartigue Letter”].

[10] 13th Amendment to the US Constitution: Abolition of Slavery (1865), Nat’l Archives, https://www.archives.gov/milestone-documents/13th-amendment#:~:text=The%2013th%20Amendment%20to%20the%20United%20States%20Constitution%20provides%20that,place%20subject%20to%20their%20jurisdiction.%22 (last updated May 10, 2022).

[11] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 13 (10th anniversary ed. 2020).

[12] Dickinson, supra note 1.

[13]Dartigue Letter, supra note 9.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Dickinson, supra note 1.

[35] Dartigue Letter, supra note 9.

[36] Alexander, supra note 11, at 9; Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, The Sentencing Project (Oct. 13, 2021), https://www.sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons-the-sentencing-project/.

[37] Alexander, supra note 11, at 11.

[38] Id. at 11, 13.

[39] Id. at 17.

Is Trump’s Name ‘Too Big’ to Trademark?

*Amanda Fruman

I. Introduction

On November 1, 2023, the Supreme Court of the United States heard oral arguments in Vidal v. Elster.[1] The outcome of this case has the potential to affect the legal dynamic between trademark restrictions and protected free speech.[2]  At issue in Vidal v. Elster is a failed trademark attempt of the phrase, “TRUMP TOO SMALL.”[3]

II. The Dispute

In 2018, Steve Elster, a California labor law attorney and “politically active Democrat,”[4] applied for federal registration to trademark the phrase “TRUMP TOO SMALL” as political commentary on former President Trump.[5] The trademark sought to enable Elster to sell merchandise using the phrase, popularized in a 2016 primary debate where Senator Marco Rubio poked fun at the size of former President Trump’s hands.[6] Elster argued that with the trademarked phrase he intended to “convey[] that some feature of [former] President Trump and his policies are diminutive.”[7] The U.S. Patent and Trademark Office (USPTO) rejected Elster’s application for the trademark under 15 U.S.C § 1502(c) and Section 2(a).[8] The USPTO based its decision on the notion that Elster did not receive permission from the former President to trademark his name and that the mark “falsely suggested a connection” to former President Trump.[9] Elster appealed the decision to the USPTO Appeal Board.[10] The USPTO Appeal Board upheld the denial under Section 2(c) because of its use of former President Trump’s name without his consent. It found a compelling government interest in upholding the statute, such as protecting the individual’s rights.[11] The USPTO Appeal Board conceded that the USPTO did not have jurisdiction to address First Amendment concerns.[12] Elster then appealed the decision to the U.S. Court of Appeals for the Federal Circuit.[13]

III. The Appeal

Before the Federal Circuit, Elster argued that the application of the Latham Act unconstitutionally restricted his freedom of speech rights under the First Amendment.[14] Compelled by this argument, and concluding that a restriction of free speech of this magnitude should be subject to intermediate scrutiny at a minimum,[15] the court reversed the judgment of the Appeal Board.[16] The court also found no important¾let alone compelling¾state interest to meet the heightened threshold required by intermediate scrutiny.[17] Therefore, the USPTO could not justify its restriction on Elster’s First Amendment Rights.[18] The court did not find the USPTO’s arguments in favor of public interest or for privacy significant enough to outweigh Elster’s constitutional right to free speech.[19] Following the decision, the United States petitioned the Supreme Court.[20] The Court granted cert in June 2023 and heard oral arguments as part of the 2023 September Term.[21]

IV. The Oral Arguments

The question posed to the Supreme Court in November was: “[d]oes the refusal to register a trademark under 15 U.S.C § 1052(c) when the mark contains criticism of a government official or public figure violate the Free Speech Clause of the First Amendment?”[22] The Court’s resolution of this case may impact the scope of trademark law proportioned against the fundamental right to free speech.

The counsel for the United States argued first that Section 1052(c) “imposes a condition on a federal benefit, not a restriction on speech.”[23] This means that Elster may not be able to trademark the phrase, but he could still sell shirts with that slogan if he wished.[24] Secondly, the United States argued that because Section 1052(c) was viewpoint neutral, meaning it applies to all trademarks equally regardless of the message, the provision should not be treated as discriminatory.[25] Finally, the United States argued that granting Elster the trademark has the potential to stifle political expression because the registration could “provide[] enhanced mechanisms for the mark owner to restrict the speech of his competitors.”[26]

In response, Elster’s counsel argued that Section 1052(c) should be subject to heightened scrutiny because it selectively “withholding [] generally available legal protections is a substantial burden on speech.” [27] Secondly, counsel argued the clause was meant to protect the “feelings of public figures,” which is unrelated to the purpose of trademark law. [28] And finally, Elster’s counsel argued that the Section was viewpoint discriminatory because it allows for public figures to register marks that are “presumably positive views about themselves” while limiting others from sharing adverse views without the figure’s consent.[29]

V. Conclusion: Can Critical Speech of a Living Person be Trademarked Speech in Alignment with the First Amendment?

This case poses unique questions regarding the scope of trademark law and the scope of free speech protection over critical speech of public figures. The Federal Circuit Court acknowledged that the “right to criticize public men” is “[o]ne of the prerogatives of American citizenship.”[30] Even so, the use of critical language makes it harder to gain the requisite consent of the living individual to trademark the phrase, a requirement of Section 2 of the Lanham Act.

Thus, the Supreme Court could find that Section 2 of the Lanham Act contradicts Elster’s First Amendment right to share and profit from this critical phrase. Since three of the seven justices are Trump appointees,[31] it will be all the more interesting to see if the person at the epicenter of the critical speech case impacts the court’s resolution of the statute’s constitutionality.

*Amanda Fruman is a second-year student at the University of Baltimore School of Law. At school, she enjoys being a Law Review staff editor, a member of the Law School’s Honor Board, a University-Wide Conduct Board Member, a Teaching Assistant to Professor Amy Sloan, and a Law Scholar for Professor Dionne Koller. During her first-year summer, Amanda served as a judicial intern to the Honorable Chief Justice Matthew Fader at the Supreme Court of Maryland. In May, she is excited to join Miles and Stockbridge as a summer associate.

[1] See generally Transcript of Oral Argument, Vidal v. Elster, (2024) (No. 22-704) https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-704_g3bi.pdf. 

[2] Vidal v. Elster, SCOTUSblog, https://www.scotusblog.com/case-files/cases/vidal-v-elster/ (last visited Feb. 22, 2024).

[3] Id.

[4] Jimmy Hoover, Meet the Labor Lawyer Whose Anti-Trump Slogan Is Now at Supreme Court, Nat’l L. J. (June 6, 2023, 6:15 PM), https://www.law.com/nationallawjournal/2023/06/06/meet-the-labor-lawyer-whose-anti-trump-slogan-is-now-at-supreme-court/?slreturn=20240218104202.

[5] Amy Howe, Justices Take Up “Trump Too Small” Trademark Case, SCOTUSblog (June 5, 2023, 11:22 AM), https://www.scotusblog.com/2023/06/justices-take-up-trump-too-small-trademark-case/.

[6] Id.; see also In Re: Steve Elster, No. 20-2205, 1, 2 (Fed. Cir. 2022), https://cafc.uscourts.gov/opinions-orders/20-2205.OPINION.2-24-2022_1913245.pdf. 

[7] Id.

[8] John Elwood, Prohibiting Trademarks Using Other People’s Names ¾ and Hypothetical Jurisdiction, SCOTUSblog (June 1, 2023, 2:43 PM), https://www.scotusblog.com/2023/06/prohibiting-trademarks-using-other-peoples-names-and-hypothetical-jurisdiction/.

[9] Id.

[10] Vidal v. Elster, Oyez, https://www.oyez.org/cases/2023/22-704 (last visited Mar. 26, 2024).

[11]  Id.

[12]  Id.

[13] Id.

[14] Steve Elster, No. 20-2205, 1, 4 (Fed. Cir. 2022).

[15] Id. at 2–4.

[16] Id. at 9.

[17] Id. at 19.

[18] Id. at 19.

[19]  Id. at 11–17.

[20] Vidal v. Elster, supra note 2.

[21] Id.

[22] Vidal v. Elster, supra note 10.

[23] Transcript of Oral Argument, supra note 1 at 3.

[24] Transcript of Oral Argument, supra note 1 at 3.

[25] Transcript of Oral Argument, supra note 1 at 4.

[26] Transcript of Oral Argument, supra note 1 at 4.

[27] Transcript of Oral Argument, supra note 1 at 43.

[28] Transcript of Oral Argument, supra note 1 at 43.

[29] Transcript of Oral Argument, supra note 1 at 43–44.

[30] Steve Elster, No. 20-2205, 1, 10 (Fed. Cir. 2022).

[31]Supreme Court Nominations (1789-Present), U.S. Senate, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm,  (last visited Oct. 17, 2023).

Xylazine is Proliferating the Illicit Drug Supply. The States and Federal Government are Responding with Legislation and Executive Action.

*Erin Daneker

I. Introduction

While the United States continues to grapple with how to best address the opioid epidemic, states are now confronted with how to respond to xylazine. Also known as “tranq,”[1] xylazine is a non-opioid commonly used for veterinary purposes[2] that has infiltrated the illicit drug supply and is often used in conjunction with fentanyl.[3] Xylazine is known for its adverse health effects on humans, including decreased respiratory function and the development of skin lesions that lead to necrosis and may require limb amputations.[4] The Food and Drug Administration has not approved xylazine for human use,[5] nor has Congress or the Drug Enforcement Administration taken action to legislatively or administratively schedule the drug under the Controlled Substance Act (CSA).[6] As a result, xylazine is not a scheduled drug under the CSA and thus eludes federal regulation and presents unique challenges, requiring both the federal and state governments to strategize on how to best prevent drug overdoses. Facing an already lethal illicit drug supply, the federal government,[7] governors,[8] and state legislatures[9] are responding in a myriad of ways, ranging from criminalization and drug scheduling,[10] to the decriminalization of harm reduction strategies such as drug testing strips.[11] Confronting the overdose epidemic requires an all-hands-on-deck approach that embraces policies that address the proliferation of xylazine, as well as strategies that can be used to address future changes in the illicit drug supply.

II. The Federal Government’s Response

In June 2023, the Centers for Disease Control and Prevention reported that xylazine-related deaths first occurred in 2018 and the presence of the substance is now being detected in fatal overdoses at an increased frequency across the United States.[12] This finding has spurred action from both the White House and Congress.

In April 2023, the White House Office of National Drug Control Policy officially designated fentanyl that is adulterated or associated with xylazine as an emerging threat to the U.S.[13] The designation led to the Biden-Harris Administration executing a whole-of-government response[14] that culminated in a National Response Plan to Fentanyl Combined with Xylazine.[15] This plan addressed xylazine testing, treatment and supportive care protocols, comprehensive data systems, strategies to reduce the illicit supply, and rapid research.[16]

Congress has also sought to address the threat of xylazine at the national level by introducing and passing legislation to further research and regulate the drug. For example, Congress passed the TRANQ Research Act,[17] which requires the National Institute of Standards and Technology to research and identify additional methods for the detection and responsible handling of the drug.[18] Another bill, The Combating Illicit Xylazine Act,[19] seeks to list the drug as a controlled dangerous substance within the CSA and to create penalties for its unlawful use and distribution.[20] Adding xylazine to the CSA would then permit the Drug Enforcement Agency to regulate the substance.[21] Congress’s interest in using its legislative powers to address xylazine, whether through additional research, drug scheduling, or both, indicates its awareness of the lethality of the drug and the need for action to assist the states and the nation in tackling this next evolution of the drug epidemic.

III. State Responses

The federal government is not the only actor working to combat the increase in xylazine in the illicit drug market. State governments have also started using their legislative and executive authorities to address the proliferation of xylazine in their communities.

Governors across the country have harnessed their executive powers to respond to xylazine.[22] Some governors have issued executive orders[23] or press releases[24] announcing their intent to schedule xylazine as a controlled substance within their own state-level controlled substance statutes using a regulatory process. Under the regulatory process, states can temporarily schedule a drug when an emergency exists if the statute allows.[25]

State legislatures are also determining how to address the proliferation of xylazine in the illicit drug supply. In an attempt to address the threat immediately, some states have passed[26] or introduced[27] legislation that schedules xylazine as a controlled substance, which frequently attaches criminal penalties. Scheduling a drug can be an effective way to quickly address changes in the drug supply but can also and problematic because it further criminalizes substance use disorder by applying penalties, such as imprisonment and fines, for the possession and use of scheduled drugs.[28]

Some states seek to better understand the extent to which xylazine persists in the drug supply. For example, states can pass legislation that requires a coroner to perform a toxicology screening if the coroner reasonably believes an individual’s death was caused by an opioid or if the person was administered an opioid intervention drug and was unresponsive to the drug.[29] Because xylazine is not an opioid, overdose reversal drugs, such as naloxone, may not be as effective in preventing an overdose death.[30] It is important for states to consider legislation like this because jurisdictions may not currently be testing for xylazine in clinical, forensic laboratory, or toxicology screenings.[31] Results from testing and toxicology screenings can provide jurisdictions with a better understanding of the extent to which xylazine is in the illicit drug supply.

State legislatures are also moving to decriminalize drug testing strips by excluding them from the definition of “drug paraphernalia.”[32] Those states that specifically carve out fentanyl test strips will most likely have to amend their existing statutes to include xylazine test strips, which would otherwise be considered drug paraphernalia of which possession is potentially subject to criminal penalties. To avoid the need to amend the statute to account for drug-checking equipment such as test strips, states could consider exempting all drug test strips from the paraphernalia definition.[33]

As the opioid crisis continues to evolve and as states adjust their strategies to reign in the immediate threat of xylazine, states should also consider the entire continuum of care for substance use disorder. This can include expanding opportunities and access to alternatives to incarceration such as pre-arrest deflection, diversion, drug courts, and low-barrier entry to treatment.[34]

IV. Conclusion

Xylazine is the newest substance to enter the illicit drug supply, and both federal and state governments need to act with urgency. However, both authorities should bear in mind that the drug supply will likely continue to evolve. No one legislative or executive action will curtail illicit drug use, so the federal and state governments must continue to find innovative ways to address the issue. The federal and state governments would be wise to not only implement strategies to address the current threat of xylazine but also engage in long-term planning to address further evolutions of illicit drug use.

Photo Credit: Center for Disease Control and Prevention

*Erin Daneker is a second-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. In addition to being a law student, Erin currently works full-time as a policy analyst at the National Governors Association. Erin received her bachelor’s degree in political science and public policy from St. Mary’s College of Maryland. Like millions of Americans, Erin has lost a family member to the opioid epidemic. She encourages people to carry an overdose reversal medication, such as naloxone, and treat people who use drugs with compassion.

[1] Drug Enf’t Admin., DEA-DCI-DIR-001-023, The Growing Threat of Xylazine and its Mixture with Illicit Drugs (2022).

[2] Id.

[3] Id. at 1.

[4] Id. at 2.

[5] See id. at 1.

[6] 21 U.S.C. § 812.

[7] See infra Section II.

[8] See infra Section III.

[9] See infra Section III.

[10] See infra Section III.

[11] See infra Section III.

[12] Mbabazi Kariisa, et al., Illicitly Manufactured Fentanyl-Involved Overdose Deaths with Detected Xylazine – United States, January 2019-June 2022, CDC (June 30, 2023), https://www.cdc.gov/mmwr/volumes/72/wr/mm7226a4.htm.

[13] Press Release, The White House, Biden-Harris Administration Designates Fentanyl Combined with Xylazine as an Emerging Threat to the United States (Apr. 12, 2023), https://www.whitehouse.gov/ondcp/briefing-room/2023/04/12/biden-harris-administration-designates-fentanyl-combined-with-xylazine-as-an-emerging-threat-to-the-united-states/. 

[14] See generally id.

[15] Off. of Nat’l Drug Control Pol’y, Exec. Off. of the President, Fentanyl Adulterated or Associated with Xylazine Response Plan (July 2023), https://www.whitehouse.gov/wp-content/uploads/2023/07/FENTANYL-ADULTERATED-OR-ASSOCIATED-WITH-XYLAZINE-EMERGING-THREAT-RESPONSE-PLAN-Report-July-2023.pdf.

[16] Id.

[17] Testing, Rapid Analysis, and Narcotic Quality Research Act of 2023, Pub. L. No. 118-23, 137 Stat. 125.

[18] Id.

[19] Combating Illicit Xylazine Act, S. 993, 118th Cong. (2023).

[20] Id.

[21] Lisa N. Sacco & Hassan Z. Sheikh, Cong. Rsch. Serv., IN12086, Xylazine: Considerations for Federal Control 1 (2023).

[22] See State and Federal Actions to Respond to Xylazine, Nat’l Governors Ass’n (May 9, 2023) https://www.nga.org/news/commentary/state-and-federal-actions-to-respond-to-xylazine/. 

[23] E.g., Ohio Exec. Order No. 2023-08D (Mar. 28, 2023), https://content.govdelivery.com/attachments/OHIOGOVERNOR/2023/03/29/file_attachments/2451030/Signed%20EO%202023-08D.pdf; 27 Del. Reg. Regs. 7 (July 1, 2023).

[24] E.g., Press Release, Governor Shapiro Directs Administration to Schedule Xylazine as a Controlled Substance, Taking Action Against Dangerous Drug Contributing to Opioid Overdoses (Apr. 18, 2023), https://www.governor.pa.gov/newsroom/governor-shapiro-directs-administration-to-schedule-xylazine-as-a-controlled-substance-taking-action-against-dangerous-drug-contributing-to-opioid-overdoses/.

[25] See, e.g., Ohio Rev. Code Ann. § 119.03(G) (West 2022) (describing the governor’s powers to authorize “the immediate adoption, amendment, or recission of a rule” when an emergency exists).

[26] E.g., S. 0738, 2023 Sess. (R.I. 2023) (codified at R.I. Gen. Laws § 21-28-2.08 (2023)) (scheduling xylazine as a Schedule V drug); S.B. 546, 86th Leg., 2023 Reg. Sess. (W. Va. 2023) (codified at W. Va. Code § 60A-2-210 (2023)) (scheduling xylazine as a Schedule IV drug); S.B. 189 152nd Gen. Assemb. (Del. 2023) (codified at Del. Code. Ann. tit. 16 § 4718 (2023)) (scheduling xylazine as a Schedule III drug).

[27] E.g., H.B. 3873, 103rd Gen. Assemb. (Ill. 2023) (classifying xylazine as a Schedule II drug); S. 3902, 220th Leg. (N.J. 2023) (classifying xylazine as a Schedule III drug).

[28] See Aila Hoss, Decriminalization As Substance Use Disorder Prevention, 51 U. Tol. L. Rev. 477, 483–84 (2020).

[29] See H.B. 1286, 123rd Gen. Assemb. (Ind. 2023) (codified at Ind. Code § 36-2-14-6).

[30] See Drug Enf’t Admin, supra note 1, at 3; Kariisa, supra note 12.

[31] See Drug Enf’t Admin, supra note 1, at 1.

[32] E.g., H.B. 287, 2023 Sess. (N.H. 2023) (exempting drug testing strips from the definition of drug paraphernalia); S.B. 189 152nd Gen. Assemb. (Del. 2023) (exempting drug testing strips from the definition of drug paraphernalia).

[33] See generally Fentanyl Test Strips, Legis. Analysis & Pub. Pol’y Ass’n (May 2021), https://legislativeanalysis.org/wp-content/uploads/2021/06/Fentanyl-Test-Strips-FINAL.pdf (describing the legal challenges of the use of fentanyl test strips).

[34] See, e.g., Nat’l Governors Ass’n, Implementing Best Practices Across the Continuum of Care to Prevent Overdose (Aug. 2023), https://www.nga.org/wp-content/uploads/2023/08/2023Aug_Roadmap_Best_Practices_Prevent_Overdose.pdf; Deflection and Pre-arrest Diversion to Prevent Opioid Overdose, Nat’l Couns. for Mental Wellbeing, https://www.thenationalcouncil.org/program/deflection-and-pre-arrest-diversion-to-prevent-opioid-overdose/ (last visited Mar. 20, 2024); David Lucas & Aaron Arnold, Court Responses to the Opioid Epidemic: Happening Now, Ctr. for Ct. Innovation (Jul. 2019), https://www.innovatingjustice.org/sites/default/files/media/document/2019/Handout_HappeningNowOpioid_07172019.pdf.

College Athletes: Considering Employment Status in the Wake of NCAA v. Alston

*Grace Clarke

I. Introduction

The spring of 2021 was a rejoiceful time for many college athletes across the country—they could finally be paid for their play.[1] The debate of amateurism in college sports has lingered for decades, but the Supreme Court officially addressed the matter in NCAA v. Alston.[2] Student athletes brought a lawsuit alleging that the National Collegiate Athletic Association (NCAA) violated federal antitrust law[3] by restricting the compensation that colleges and universities could provide students who played on their sports teams.[4] However, this case did not address whether students, who could now receive payment by their schools, are actual employees of the schools.[5] The debate of employment status continues to run rampant in courts and legislatures across the country, as well as the discussion as to the risks and benefits of this status for student athletes.[6]

II. National Labor Relations Board

The question about whether student athletes are employees has not been directly addressed by the National Labor Relations Board (NLRB); however, its review of recent complaints demonstrates that it is considering whether college athletes should be identified as employees.[7] In December of 2022, the National College Players Association (NCPA), on behalf of football and basketball players at the University of Southern California, filed charges with the NLRB against the NCAA to “affirm college athlete employee status for every FBS[8] football player and Division I basketball player at every public and private university in the nation.”[9] The NLRB directed its Los Angeles Regional Office to pursue charges of unfair labor practices.[10] The NCPA previously brought this issue to the NLRB to determine whether student athletes are employees of the school with the right to unionize, but the Organization did not succeed.[11]

III. Johnson v. NCAA

In the pending Third Circuit case, Johnson v. NCAA, student athletes across multiple colleges and universities brought suit arguing that “student athletes who engage in interscholastic athletic activity for their colleges and universities are employees who should be paid for the time they spend related to those athletic activities.”[12] The plaintiffs contend that they should be paid for their time because student athletes should be considered employees subject to the Fair Labor Standard Act (FLSA).[13] A three-judge panel for the Court of Appeals for the Third Circuit heard this case on February 15, 2023, after defendants filed an interlocutory appeal.[14]  

A decision in favor of the plaintiffs would result in a circuit split, opening the door for the Supreme Court to determine how to classify student athletes: both the Ninth Circuit[15] and Seventh Circuit[16] previously found that student athletes are not employees of the school and therefore not protected by the FLSA.[17] However, both Circuits addressed the issue prior to the Supreme Court’s decision in Alston.[18]

IV. Developing Legislation

Senators in Congress have called for legislative action to clarify issues such as employee status for student athletes.[19] Both Senator Ted Cruz and Senator Joe Manchin have introduced bills that do not specifically state whether student athletes are employees, but discuss reform that would inherently answer the question.[20] Another potential bill, the College Athletes Protection and Consumer Act, drafted by Senators Blumenthal, Moran, and Booker, would “reform and strengthen college athletics, and make sure athletes get the support and protections they need while setting baseline, national standards.”[21] While none of these proposed bills specifically address the employment status of college athletes, each of these Senators have spoken out against classifying athletes as employees.[22]

V. Conclusion

What are the potential effects of deeming student athletes employees of their schools? While organizations such as NCPA have advocated tirelessly for the cause, others do not believe the benefits would be so great. As employees, student athletes would have the right to unionize.[23] Additionally, collegiate athletes could potentially seek compensation for the time spent playing, as championed by the plaintiffs in Johnson.[24] On the other hand, at a Senate hearing in October of 2023, the President of the NCAA discussed the possible consequences, including “scholarship awards taxed under U.S. employment laws” and that “smaller schools would be forced out of the college sports business entirely as they do not have large athletic budgets.”[25] The Senate hearing emphasized the need for regulation, as courts and states grapple with the issue themselves. Legislation is essential to regulate the authority granted in Alston, so student athletes can be just that—not student-athlete-employees.

*Grace Clarke is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. During her first-year summer, Grace worked as a judicial intern for the Honorable Judge Laura S. Ripken on the Appellate Court of Maryland. In May, she plans to join Miles & Stockbridge P.C. as a summer associate in the Labor and Employment Practice Group.

[1] Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166 (2021).

[2] Id. at 2147.

[3] See 15 U.S.C. § 1. “Specifically, they alleged that the NCAA’s rules violate § 1 of the Sherman Act, which prohibits ‘contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.’” Alston, 141 S. Ct. at 2151.

[4] Alston, 141 S. Ct. at 2147.

[5] Id.

[6] See, e.g., Johnson v. Nat’l Collegiate Athletic Ass’n, 556 F. Supp. 3d 491, 495 (E.D. Pa. 2021); Protecting Athletes, Schools, and Sports Act of 2023, S. 2495, 118th Cong. (2023).

[7] Kelly Lienhard, Sens. Say Student-Athletes Should Not Be Deemed Employees, Law 360 (Oct. 17, 2023, 8:43 PM), https://www.law360.com/employment/articles/1732612/sens-say-student-athletes-should-not-be-deemed-employees.

[8] See FBS VS. FCS Explained, Signing Day Sports: The Wire (Oct. 7, 2022), https://thewire.signingdaysports.com/articles/fbs-vs-fcs-explained/. Football Bowl Division (FBS) is the highest level of NCAA football.

[9] NCPA Files NLRB Charges for College Athlete Employee Status, Wages,NCPA, https://www.ncpanow.org/releases-advisories/ncpa-files-nlrb-charges-for-college-athlete-employee-status-wages (last visited Mar. 22, 2024).

[10] Chris Isidore, NLRB Opens Door for Union for College Athletes, CNN (Dec. 15, 2022, 10:14 PM),https://www.cnn.com/2022/12/15/business/nlrb-unfair-labor-practice-athletes-usc-pac-12-ncaa/index.html.

[11] Id.

[12] Johnson, 556 F. Supp. 3d at 495.

[13] Id.

[14] Id.

[15] Dawson v. Nat’l Collegiate Athletic Ass’n, 932 F.3d 905, 907 (9th Cir. 2019) (holding that college football players are not employees of the National Collegiate Athletic Association (NCAA) and PAC-12 Conference (PAC-12) within the meaning of the Fair Labor Standards Act (FLSA)).

[16] Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 288 (7th Cir. 2016) (finding thatstudent athletes at the University of Pennsylvania are not employees entitled to minimum wage under the FLSA).

[17] See Josh Goldberg & Carter Gaines, What You Need to Know About Johnson v. NCAA, Greenspoon Marder LLP (May 1, 2023),https://www.gmlaw.com/news/what-you-need-to-know-about-johnson-v-ncaa/.

[18] Compare Dawson, 932 F.3d 905 and Berger, 843 F.3d 285 with Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166 (2021).

[19] Lienhard, supra note 7.

[20] Id.

[21] Richard Blumenthal et al., College Athletes Protection and Compensation Act Discussion Draft, Richard Blumenthal, U.S. Sen. for Conn. (July 20, 2023), https://www.blumenthal.senate.gov/imo/media/doc/07202023college_athletes_protection_and_compensation_actonepager.pdf.

[22] Lienhard, supra note 7.

[23] NCPA, supra note 8. “Unionized professional sports leagues and players have a collective bargaining agreement (CBA) that sets player compensation at a fair market rate of 50% of total revenue and comprehensive benefits.” Id.

[24] Johnson v. Nat’l Collegiate Athletic Ass’n, 556 F. Supp. 3d 491, 495 (E.D. Pa. 2021).

[25] Lienhard, supra note 7.

The Farm Bill Spoiled: What Happens Next for Inequalities in Land-Grant Institutions

*Josie Shaffer

I. Introduction

Amid partisan turmoil on Capitol Hill, Congress failed to pass the Farm Bill before its September 30th, 2023, deadline.[1] As a result, certain programs will lose their funding and their ability to run their programs, and many farm commodity programs will now rely on outdated laws once the Bill is exhausted.[2] The 118th Congress need not sound any alarms yet, since previous omnibus Farm Bills like this one have taken years past their first deadlines to get a final vote.[3] However, the delay leaves many institutions’ hope for increased federal funding in limbo.[4]  Congress missed an opportunity to address the inequalities from earlier Farm Bill-funded research programs between predominantly white land-grant institutions and their historically Black land-grant university counterparts.[5] Organizations push for solutions to these disparities, but it may not be remedied legislatively as the status of the 2023 Farm Bill remains unknown.

II. History

The Farm Bill is an omnibus law that Congress passes about every five years to fund various agriculture programs.[6] Enacted in the 1930s, the original Farm Bills kept food prices fair for farmers and consumers and ensured an adequate food supply as part of the New Deal.[7] Over time, Congress has expanded that original idea through increased funding to various sectors of the agricultural industry, from the farm to the table and all the research in between.[8] Since 1977, the Farm Bill has included a research title that reauthorizes funding for existing programs such as land-grant universities.[9]

Congress established land-grant universities (LGUs) through the Morrill Act of 1862 to expand agriculture research through higher education institutions.[10] However, Black Americans did not get to experience this increase access until an 1890 amendment to the Morrill Act—almost 30 years later.[11] This second Morrill Act prohibited the distribution of federal funds to states that made distinctions of race in admissions “unless at least one land-grant college for African Americans was established.”[12] Many of these universities mandated by the Morrill Act of 1890 (1890 institutions) persist today as Historically Black Colleges and Universities (HBCUs).[13]

Originally colleges focusing on solely agriculture, many LGUs designated in the first Morrill Act (1862 institutions) are now their state’s flagship universities such as the University of Maryland and the University of Wisconsin.[14] Federal legislation provides capacity grants— recurring federal appropriations—and federal appropriations to LGUs for research, education, and extension, or practical experience in the field.[15] When the Hatch Act passed in 1887, authorized funding for the creation of centers for agricultural research  in connection with a state’s LGU.[16] Federal funds provided to state institutions under the Hatch Act, must be matched  by the state per dollar with nonfederal funding.[17]

However, U.S. Secretary of Education Miguel Cardona and U.S. Secretary of Agriculture Thomas Vilsack recently highlighted unequal appropriated funding for different LGUs, with distributions ranging from $172 million for 1890 institutions to $2.1 billion for 1862 institutions.[18] Disproportionate state funding can also be seen in states hosting both 1862 and 1890 institutions. For example, Florida did not meet the 1-to-1 Hatch Act-required state funding needed Florida Agricultural and Mechanical University (FAMU), an 1890 institution.[19] Two and a half hours away at the University of Florida, an 1862 institution, however, Florida matched funds with a state-to-federal funding ratio of at least 14-to-1.[20]

The 2018 Farm Bill removed the restriction that capped 1890 institutions’ appropriations from one fiscal year into the next.[21] Section 7213 of the 2018 Farm Bill called for the United States Department of Agriculture (USDA) to name at least three Centers of Excellenceat 1890 institutions and authorized annual appropriations of $10 million to fund such centers.[22] While removing this limitation allows 1890 institutions greater flexibility in long-term projects with additional funding, 1890 institutions still do not receive equitable state funding compared to 1862 institutions that could help with these projects.[23]

III. 1890 Land-Grant Institutions Remain Underfunded as No Resolution to the 2023 Farm Bill is Clear

To fix disparities between LGUs, congressman David Scott introduced a bill in 2021 to provide $100 million in funding for student scholarships at 1890 institutions by permanently reauthorizing the 1890 Scholarship program without Farm Bill reauthorization.[24] This initiative and other hopes of combatting the deeply rooted inequities between the LGUs stall as the 2023 Farm Bill makes a slow crawl to a final vote. Without legislative action to increase funding to 1890 institutions, supporters may try other legal endeavors to decrease the funding gap between LGUs.

However, a recent suit in Maryland demonstrates the legislative action like the Farm Bill is not the only vehicle for fixing disparate funding at LGUs. In 2021, Maryland settled a lawsuit accusing the state of undermining HBCUs across Maryland’s ability to attract students for $577 million.[25] Along with allegations of underfunding, the lawsuit alleged Maryland allowed traditionally white institutions to duplicate programs offered at HBCUs, making it more difficult for HBCUs to attract students.[26] The 4th Circuit Court of Appeals found that the program duplication perpetuated segregation and directed the settlement funds to the expansion of academic programs at Maryland’s four HBCUs, including 1890 institution University of Maryland Eastern Shore.[27] This settlement could inspire supporters of 1890 institutions in the other seventeen states where both 1862 and 1890 institutions are located to sue their state governments for allowing traditionally white institutions to duplicate programs offered at 1890 institutions.[28] As mentioned, the University of Florida and FAMU both maintain agriculture programs, but the 1862 program has the benefit of more state-to-federal matching funds. Accordingly, FAMU could look to Maryland HBCU’s settlement with the state as means to challenge their disparities through the courts.

IV. Conclusion

Several provisions in the 2018 Farm Bill addressed discrepancies in how 1862 and 1890 institutions receive and manage federal funds.[29] Supporters of 1890 institutions hoped that, with the reauthorization of the Farm Bill, lawmakers would add additional education and research opportunities to combat unequal funding between LGUs. Congress granted an extension of the 2018 Farm Bill until September 2024[30], but if LGUs want additional funding for their programs, they may need to consider legal actions, like those seen in Maryland, to secure research, education, and extension activities in the near future.

Photo Credit: U.S. Department of Agriculture

*Josie Shaffer is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Additionally, Josie serves as the UB LEADS Coordinator for the Student Bar Association. She is currently a senior law clerk at the Maryland Office of the Attorney General’s Organized Crime Unit.

[1] See Allison Winter, The Farm Bill Has Expired. Congress Is Months Away from a New Version, Md. Matters (Oct. 2, 2023), https://www.marylandmatters.org/2023/10/02/the-farm-bill-has-expired-congress-is-months-away-from-a-new-version/.

[2] See Cong. Rsch. Serv., R47659, Expiration of the Farm Bill 2–3 (2023).

[3] See id. at 2.

[4]  See Katherine Knott, How the Farm Bill Could Affect Higher Education, Inside Higher Ed. (Jul. 25, 2023), https://www.insidehighered.com/news/government/2023/07/25/whats-stake-institutions-students-farm-bill-talks.

[5] See generally 2023 Farm Bill Title VII Policy Recommendations, Association of Public & Land-Grant Universities, https://www.aplu.org/wp-content/uploads/APLU-Farm-Bill.pdf (last visited Oct. 22, 2023) (suggesting policy recommendations for amending Title VII of the upcoming farm bill).

[6] Cong. Rsch. Serv., IF12047, Farm Bill Primer: What is the Farm Bill? 1 (2023).

[7]  What Is the Farm Bill?, Nat’l Sustainable Agric. Coal., https://sustainableagriculture.net/our-work/campaigns/fbcampaign/what-is-the-farm-bill/ (last visited Oct. 19, 2023).

[8] Id.

[9] Genevieve K. Croft, Cong. Rsch. Serv., R47057, Preparing for the Next Farm Bill 43 (2022).  

[10] Genevieve K. Croft, Cong. Rsch. Serv., R45897, The U.S. Land-Grant University System: Overview and Role in Agricultural Research 1 (2022).

[11] Id. at 3.

[12] Id.

[13] See id.

[14] Sara Partridge, The 2023 Farm Bill Must Address Inequalities in the Land-Grant University System, Ctr. for Am.Progress (July 26, 2023), https://www.americanprogress.org/article/the-2023-farm-bill-must-address-inequities-in-the-land-grant-university-system/. Benson, supra note 9, at 26.

[15] Croft, supra note 9, at 12. Extension, Nat’l Inst. Food & Agric., https://www.nifa.usda.gov/about-nifa/how-we-work/extension (last visited Feb. 5, 2024).

[16] 7 U.S.C. § 361(a).

[17] Id.

[18] Id.

[19] Partridge, supra note 13.

[20] Id.

[21] Croft, supra note 9, at 16.

[22] Cong. Rsch. Serv., IF11319, 2018 Farm Bill Primer: Agricultural Research and Extension 1 (2018).

[23] Press Release, U.S. Dep’t Educ., Secretaries of Education, Agriculture Call on Governors to Equitably Fund Land-Grant HBCUs (Sept. 18, 2023), https://www.ed.gov/news/press-releases/secretaries-education-agriculture-call-governors-equitably-fund-land-grant-hbcus#:~:text=U.S.%20Secretary%20of%20Education%20Miguel,grant%20peers%20in%20their%20states.

[24] Press Release, Congressman David Scott, Ranking Member David Scott Introduces Legislation to Support 1890 Scholarships (Mar. 8, 2023), https://democrats-agriculture.house.gov/news/documentsingle.aspx?DocumentID=2750.

[25] Elizabeth Shwe, Maryland Settles HBCU Federal Lawsuit for $577 Million, Md. Matters (Apr. 28, 2021), https://www.marylandmatters.org/maryland-settles-hbcu-federal-lawsuit-for-577-million/.

[26] Id.

[27] Id.

[28] Land-Grant Colleges and Universities, Nat’l Inst. Food & Agric., https://www.nifa.usda.gov/land-grant-colleges-universities  (last visited Oct. 22, 2023).

[29] See Cong. Rsch. Serv., supra note 17, at 1.

[30]  Further Continuing Appropriations and Other Extensions Act, Pub. L. No. 118-22 (2023).