The Keyes to Reclaiming the Racial History Of the Roberts Court

This article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and circumstances surrounding Brown v. Board of Education. For the Court, Brown symbolizes all that is wrong with the history of race in the United States - legal segregation, explicit racial discord, and vicious and random acts of violence. Though Roberts Court opinions suggest that some of those vestiges still exits, the bulk of its jurisprudence indicate the opposite. With Brown’s basic factual premises as its point of reference, the Court has consistently argued that the nation has made tremendous strides away from the condition of racial bigotry, intolerance, and inequity. The article accordingly argues that the Roberts Court reliance on Brown to understand racial progress is anachronistic. Especially as the nation’s focus for racial inequality turned national in scope, the same binaries in Brown that had long served to explain the history of race relations in the United States (such as Black-White, North-South, and Urban-Rural) were giving way to massive multicultural demographic and geographic transformations in the United States in the years and decades after World War II. All of the familiar tropes so clear in Brown and its progeny could no longer fully describe the current reality of shifting and transforming patterns of race relations in the United States. In order to reclaim the history of race from the Roberts Court, the article assesses a case that more accurately symbolizes the recent history and current status of race relations today: Keyes v. School District No. 1. This was the first Supreme Court case to confront how the binaries of cases like Brown proved of little probative value in addressing how and in what ways race and racial discrimination was changing in the United States. Thus, understanding Keyesand the history it reflects reveals much about how and in what ways the Roberts Court should rethink its conclusions regarding the history of race relations in the United States for the last 60 years.

FOIA, Inc.

Government transparency is imagined as a public good necessary to a robust democracy. Consistent with that vision, Congress enacted the Freedom of Information Act (FOIA) to allow oversight and accountability of governmental activities. No actors are more central to the design than journalists, who were not only the prime intended users, but who were intimately involved in crafting the law itself. But this democracy-enhancing ideal is at odds with FOIA’s reality: at some agencies, commercial — not public — interests dominate the landscape of FOIA requesters. This Article provides the first in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It uses these agencies as case studies to examine the way that businesses derive profit-making value from free or low-cost federal records. Remarkably, these datasets also reveal a cottage industry of companies whose entire business model is to request federal records under FOIA and resell them at a profit. Information resellers are not isolated occurrences, but rather are some of the most frequent FOIA requesters — often submitting hundreds or even thousands of requests a year — at a variety of federal agencies. Commercial users certainly have legitimate information needs, but, as this Article demonstrates, the volume and character of the current commercial use of FOIA undermines its efficacy as a transparency tool. Private businesses in essence receive a substantial subsidy without any corresponding public good, all while draining agency resources that might otherwise be used to respond to FOIA requests that serve its central oversight and accountability aims. Moreover, information resellers have become the de facto locus for federal records for whole industries, effectively privatizing an important public function. Counter-intuitively, limiting commercial requesting will not solve this problem. Instead, this Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are routinely the subject of FOIA requests — a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.

FOIA, Inc.

Government transparency is imagined as a public good necessary to a robust democracy. Consistent with that vision, Congress enacted the Freedom of Information Act (FOIA) to allow oversight and accountability of governmental activities, imagining the prime intended users to be journalists. But this democracy-enhancing ideal is at odds with FOIA’s reality: at some agencies, commercial—not public—interests dominate the landscape of FOIA requesters. This Article provides the first in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It documents how corporations, in pursuit of private profit, have overrun FOIA’s supremely inexpensive processes and, in so doing, potentially crowded out journalists and other government watchdogs from doing what the law was intended to facilitate: thirdparty oversight of governmental actors. It also reveals a cottage industry of companies whose entire business model is to request federal records under FOIA and resell them at a profit, which distorts the transparency system even further. Counterintuitively, limiting commercial requesting will not solve this problem. Instead, this Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are the subject of routine FOIA requests—a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.