Scalia Spotlights

Gray Center Hosts Webinar: Police Reform and Civil Rights

On February 25, the C. Boyden Gray Center for the Study of the Administrative State hosted a webinar on the topic of police reform and civil rights. The webinar was the fourth in an ongoing webinar series titled “The Administrative State in Transition,” previewing the issues facing the Biden administration as it assumes control of the federal regulatory apparatus.

In this installation of the series, Professor Adam White, Executive Director of the Gray Center, moderated a discussion on the future of police reform and civil rights under the Biden administration with Professor Ronald S. Sullivan, Jr., of the Harvard Law School, Professor Rachel Harmon of the University of Virginia School of Law, and Professor Gail Heriot of the University of San Diego School of Law.

In their opening remarks, each of the speakers discussed the issues they are watching most closely as the Biden administration responds to the national wave of calls for law enforcement reform over the last year. Professor Sullivan opened by discussing the problem of mass incarceration in the United States, its history in American law enforcement, and the policies that contribute to it. He drew particular attention to policies that seek to cabin policy discretion but do so by imposing requirements that lead to more arrests. Professor Harmon contrasted the national environment that is pro-police reform with President Biden’s long career as an ally of law enforcement. She discussed some of Biden’s campaign promises – including a commission on policing and legislation that would require more data collection by local police on use of force – and suggested several avenues for immediate action that President Biden could take, with a focus on the needed reforms in federal law enforcement. Professor Heriot talked about school discipline and argued that its role in the “school to prison pipeline” is overstated. She advocated for less federal involvement in school discipline reform, suggesting that this involvement disempowers teachers from maintaining order in their classrooms as they worry about justifying their actions to distant federal bureaucrats, which she argued then detracts from students’ ability to learn. She also criticized the use of disparate treatment liability under Title 6, arguing that it is too broad and allows the federal government to pick and choose which disparate impacts to enforce.

Following their opening remarks, the speakers answered questions from webinar attendees on a variety of topics, including civil asset forfeiture, qualified immunity, and gun control. They also spoke on the distribution of power across federal, state and local governments, and the unique challenges inherent in the shared burden of law enforcement across levels of government. Beyond what President Biden’s administration might do, the speakers also commented on legislation from Congress that may be helpful to address these issues, as well as the Supreme Court’s likely future role in regulating law enforcement. Professor Heriot criticized the interference from the federal government in school discipline and local law enforcement, arguing that local officials should respond to the facts on the ground rather than the requirements of federal bureaucrats. On the other hand, Professor Sullivan highlighted the ways in which President Biden can lead on these issues and promote reform on both the federal and local levels.

The discussion closed with remarks on the most important institutions and groups working today in police reform and civil rights, and with a brief reflection on the limitations of approaching these issues from the world of academia. Professor Sullivan spoke on the importance of Black Lives Matter and other activist groups and the leadership they will continue to take in reform. He also spoke in favor of listening to stakeholders who are impacted by the policies being discussed, as a way of overcoming the blind spots of academics.