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The current U.S. Supreme Court has lowerered the federal constitutional floor for cases seeking to protect individiual constitutional rights, and many litigators have adapted by taking cases to state court. The day-long Sparer Symposium brought together practitioners and academics from multiple public interest fields to examine the benefits and challenges in working within the state courts and legislatures to pioneer the next generation of rights protections. As BLS Professor Nan Hunter, who spoke on the second panel, put it, the symposium served as "a summit conference" for civil rights groups to critically examine state-level strategies.

BLS Professor Susan Herman, who helped organize the symposium, opened the program by discussing the Supreme Court's 1976 decision in San Antonio v. Rodriguez, which held that the U.S. Constitution did not guarantee a fundamental right to education. During the first panel, "Promoting Equality," speakers discussed state-based approaches to promote educational equity, voter rights and campaign finance reform.

Regarding Rodriguez, the panelists acknowledged that the challenge in promoting educational equity has been in enforcement, explaining that courts often remand the question of remedy to the legislature. They emphasized that cooperation with all branches of state government along with community participation are crucial elements for successful enforcement. The panel also spotlighted the challenge facing national organizations embarking on state-based initiatives. For example, Deborah Goldberg, director of the Brennan Center's Democracy Program, described how the Brennan Center first sought a favorable decision in Washington on the use of voter registration databases before pursuing action in other states where the practice is more likely to disenfranchise a greater number of people. All three panelists emphasized the need for research that would survey and consolidate state laws and judicial tests.

The second panel, "Promoting Personal Freedom," addressed how LGBT and reproductive rights lawyers have successfully used state-based approaches in furthering civil rights agendas. State Strategies Attorney for the ACLU's Reproductive Freedom Project Sondra Goldschein highlighted how this approach included activities other than litigation, pointing out how the ACLU, in partnership with local organizations, defeated a ballot initiative in 2006 that would have banned abortions in South Dakota. David Buckel, from Lambda Legal Defense and Education Fund, traced the success of Lawrence v. Texas, a landmark 2003 Supreme Court case that struck down Texas' sodomy law, to state level victories that redefined the legal and social landscape in terms of sexuality, privacy and autonomy. Cognizant of limited resources, Buckel explained how Lambda decides which states to proceed in by employing a 100-factor test. Professor Hunter praised the ACLU and Lambda's approaches, which she termed "multidimensional entrepreneurial advocacy," citing as examples the use of new media, sophisticated selection of litigants and narratives, increased use of large law firms, and policy placement in public media and cultural venues.

The third panel, "Death Penalty Activism," highlighted the critical role states play in death penalty litigation. George Kendall, senior counsel at Holland & Knight and an adjunct professor at BLS, opened his presentation by stating, "Our star is rising," and he spoke optimistically about the prospects for state-level challenges to the use of the death penalty. Both he and Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, emphasized that to succeed, activists must be cognizant of the individual dialogues occurring in different states and should seize upon a diversity of legal arguments and approaches.

The afternoon began with a fourth panel, "Preserving Property Rights." Dana Berliner, senior attorney with the Institute for Justice, and John Echeverria, executive director of Georgetown University's Environmental Law & Policy Institute, debated the appropriate role of state-level regulation of eminent domain following the Supreme Court's 2005 decision in Kelo v. City of New London.

The final panel of the symposium, "Promoting New Paradigms," included Professor Burt Neuborne, legal director of the Brennan Center; Professor Erwin Chemerinsky of Duke Law School, a renowned constitutional scholar; and BLS Professor Jason Mazzone, another constitutional scholar. Reflecting on the first four panels, Neuborne argued that the symposium demonstrates the "highly political nature" and "increased fragility" of rights. Though he favored the use of state-level strategies, he argued that the federal courts still have a important role to play in the protecting the "unpopular rights of unpopular people."

Professor Chemerinsky, who will soon join the University of California - Irvine's new law school as its first dean, argued that there are limits to state-focused initiatives, including the financial burdens of proceeding state by state. He also cited federal preemption, amendable state constitutions, and the election of state judges as considerable challenges to state-based initiatives. He concurred with Mazzone's point that academia should promote doctrinal research rather than generally favoring legal theory. On this point, the final panel echoed the previous speakers who stressed the need for legal academics and law students to research state laws and judicial decisions in order to shed light on the unique challenges and opportunities each state offers activists who are seeking to raise the level of rights protections above the descending federal floor.

By Leila Hull '09