Civil Rights Law & Policy Blog

Editor: Andrew M. Ironside

A Member of the Law Professor Blogs Network

Wednesday, April 9, 2014

"The Future of Voting Rights in Indian Country Following Shelby County and Inter Tribal Council of Arizona"

The title of this post comes from this upcoming article by Professor Jeanette Wolfley, the abstract of which states:

This past term the United States Supreme Court issued two decisions involving voting rights – Shelby County v. Holder and Arizona v. Inter Tribal Council of Arizona. The Court in Shelby County struck down Section 4 of the Voting Rights Act, and Inter Tribal Council held the National Voter Registration Act preempted Arizona’s election requirements. Scholars’ and practitioners’ focus on Shelby County has not considered the impact on Indian voters or reservation residents. This Article seeks to fill the gap by examining the Shelby County and Inter Tribal Council decisions, and strives to provide some insight and effective responses with regard to impacts on Native American voters across Indian country. It provides a comprehensive discussion of voting measures, actions, cooperative agreements and laws that should be considered and implemented by Indian tribes, states, the federal government, and Indian voters to address the void left by the two decisions.

April 9, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Tuesday, April 8, 2014

CRL&P Daily Reads: Apr. 8, 2014

Know-the-truthSCOTUS isn't ready to consider the ban on campaign contributions by corporations to political candidates.

Federal judge rejects Texas legislators' claims to qualified immunity as to documents relating to state's voter ID law; VP Biden urges Democrats to combat efforts to restrict voting rights; and, New York likely will be the third state to join the National Popular Vote Interstate Compact.

Idaho asks federal judge to dismiss the lawsuit alleging that the state's new law prohibiting the filming of animal abuse violates the First Amendment.

SCOTUS declines to consider a challenge to NSA's mass surveillance program at this time.

Former SCOTUS justice Stevens wants to abolish the death penalty.

April 8, 2014 | Permalink | Comments (0)

Monday, April 7, 2014

"Where the home in the valley meets the damp dirty prison...

...and the executioner's face is always well hidden."

The Associated Press reports the results of its recent survey of state policies as to the identities of providers of execution drugs. It found that the "vast majority" of states protect the identity of their providers. The notable exceptions are Delaware, Nevada, Ohio and Virginia. The article begins:

ImagesDating to the days when the guillotine operator or the hangman wore a mask, a certain amount of anonymity has always surrounded executions. But that secrecy is increasingly coming under fire, with judges, death penalty opponents and lawyers questioning why so little can be known about a state's most solemn responsibility.


An Associated Press survey of the 32 death penalty states found that the vast majority refuse to disclose the source of their execution drugs. The states cloaked in secrecy include some with the most active death chambers — among them Texas, Florida, Oklahoma and Missouri.


Most states have recently begun relying on loosely regulated "compounding pharmacies" for execution drugs but refuse to name them, citing concerns about backlash that could endanger the supplier's safety. But many states refuse to provide even more basic information — how much of the drug is on hand, the expiration date, how it is tested. Those who question the secrecy wonder how an inmate's constitutional right against cruel and unusual punishment can be guaranteed if nothing is known about the drug being used to kill him.

"As far as we know, it could be coming from a veterinary source, it could be coming from some dark corner of the Internet," said Cheryl Pilate, a Kansas City, Mo., attorney who handles death row appeals. "We simply don't know."


The most prolific death penalty states have successfully deflected most challenges to secretive protocols. But momentum is building toward unlocking details. 

CRL&P related posts:

April 7, 2014 | Permalink | Comments (1)

CRL&P Daily Reads: Apr. 7, 2014

Family of Gulf War veteran who suffered from PTSD files a civil rights suit alleging excessive force by the police officers who killed him.

Gun.siConference committee of Missouri legislature to reconcile bills allowing state residents to sue federal agents enforcing federal gun laws; Kansas legislature passes a bill establishing uniform gun permitting regulations across the state; state raises questions regarding the findings of the plaintiff's expert in the case challenging Colorado's new gun regulations; and, AP documents NRA's efforts to expand gun rights.

Federal judge rejects motion to dismiss challenge to Missouri's secrecy as to the provider of its execution drugs.

Michigan governor signs bill removing residency restriction on petition circulators

April 7, 2014 | Permalink | Comments (0)

"Super PAC Contributions, Corruption, and the Proxy War Over Coordination"

The title of this post comes from this excellent essay by Professor Richard Hasen. It's particularly compelling given the Supreme Court's decision last week in McCutcheon v. FEC striking down the BCRA's cap on aggregate campaign contributions. The abstract states:

This essay, written for a Duke Journal of Constitutional law and Public Policy symposium, considers the constitutionality of limiting contributions to "Super PACs" and other groups which make independent expenditures in candidate elections. It begins by demonstrating that the same four interests which may justify limiting multi-million dollar contributions to candidates -- the anti-bribery interest, the anti-undue influence interest, the equality interest, and the public confidence interest -- apply roughly equally to the interests justifying limiting multi-million dollar contributions to Super PACs. It then demonstrates that thanks to the Supreme Court's crabbed definition of "corruption" in its Citizens United decision, contribution limits imposed on Super PACs appear unconstitutional despite the parallel interests justifying limiting contributions to candidates and outside groups. The Essay then considers whether treating Super PACs which are reliable surrogates for a candidate's campaign as "coordinated" with a candidate would be an acceptable means of limiting contributions to Super PACs (on grounds that coordinated spending counts as a contribution to a candidate). 

The Essay concludes that while the doctrinal move to an expanded definition of coordination to deal with the problem of Super PACs is completely understandable, given the state of current doctrine, the effort would be unlikely to be successful. Courts would be likely to reject a broad coordination rule as infringing on the First Amendment rights of those involved with independent Super PACs. Instead, coordination is the sideshow and the fight over the meaning of corruption is the main event. Reformers must convince the Supreme Court to return to the broader definition of corruption which extends anticorruption to include not just the prevention of bribery but also the prevention of undue influence. That day may not come until the Supreme Court personnel changes, but it is the linchpin for the successful resuscitation of meaningful campaign finance regulation in the United States.

CRL&P related posts:

April 7, 2014 | Permalink | Comments (0)

Friday, April 4, 2014

A brief summary of the development of campaign finance laws

Today, WaPo reporter Jaime Fuller provides this intriguing historical summary of political spending and attempts by federal and state governments to regulate campaign finance. She FreedmenVotingInNewOrleans1867begins by recounting the early efforts of a young George Washington to persuade voters by the then-common practice of treating--whereby candidates provided banquets of food and liquor at the polling place; she ends, of course, with the Supreme Court's decision earlier this week in McCutcheon v. FEC

After recounting Washington's electioneering efforts in 1757, Fuller jumps to the campaign finance law passed by Congress in 1867 making it illegal to solicit donations from naval yard workers. However, the intervening years were not bereft of efforts to curb seemingly excessive spending in campaigns.

Colonial assemblies and state goverments routinely attempted to reduce the influence of money in politics. As Chilton Williamson documents in his book American Suffrage From Property to Democracy, 1760- 1860, "Colonial assemblies tried to curb these electoral abuses by a spate of laws...against the treating of electors[.]" Richard Dinkin notes, for example, the Maryland colonial assembly's attempt to limit such practices, citing a 1768 election law:

[T]hat  on any petition for treating, this house will not take into consideration, or regard the greatness or smallness of any treat, but will in all cases, in which any person or persons,...directly or indirectly give, present, or allow to any person having a voice or vote in such election, any money, meat, drink, entertainment or provision, or make any present, gift reward, or entertainment,...whatsoever, in order to be elected, or for being elected, will declare the election of such person voice.

Additionally, the move from public to private voting by the adoption of the Australian ballot--or secret ballot--was often viewed as an effort to curtail campaign spending. In fact, the eventual popularization of the Australian ballot in the U.S. is commonly attributed to Henry George's 1883 article titled Money in Elections. Notably, he writes:

To begin with what I conceive would be the greatest single reform. By adopting the Australian plan of voting, now for some years in successful operation in England, we could abolish at one stroke all the expense of printing and distributing tickets, and all the expense and demoralization consequent on the employment of “workers,” and very much lessen the importance of party nominations and party machinery. Under that plan the ballots are printed at public expense, and contain names of all persons duly registered as candidates. When the voter approaches the poll he is handed one of these ballots. He enters a compartment, where a pencil or pen and ink are provided, and, concealed from observation, strikes off the names of those he does not which to vote for, or as in England, indicates by a mark those he prefers, and then folding up the ballot, presents it… [T]he corruption of primary politics, and the practice of selling votes in nominating convents, would be destroyed, and the practice of blackmailing candidates by the so-called indorsement of political clubs whose only object is to make money, would be destroyed…[T]he practice of buying votes, and that of coercing voters by error of discharge from employment, would be in large part, if not altogether, broken up by the difficulty of telling how a man voted. There would be no putting a ticket in a man’s hand and keeping an eye on it until deposited.

CRL&P related posts:

April 4, 2014 in Election Law, First Amendment, Freedom of Speech, Right to Vote | Permalink | Comments (0)

CRL&P Daily Reads: Apr. 4, 2014

LATimes examines how McCutcheon decision might strengthen political parties;'s Root examines upcoming First Amendment political speech case challenging Ohio's bar on false statements about political candidates.

County commissioners in Texas allegedly violated the First Amendment rights of a candidate for the vacant county constable position by asking illegal questions during his interview. 

Volunteer law enforcement officer testifies that Colorado's new restrictions on gun purchases and magazines sizes affect training, but former police chief disagrees; and, Fort Hood gun store receives unwanted attention after most recent shooting.

Gov. Bryant signs Mississippi's religious freedom bill.

Texas executes inmate after SCOTUS rejects motion to stay pending an investigation by inmate's lawyers into the source of drugs used to kill.

April 4, 2014 | Permalink | Comments (0)

Thursday, April 3, 2014

CRL&P Daily Reads: Apr. 3, 2014

Ohio man who spent 20 years in prison sues the county prosecutors who put him there alleging that they withheld evidence and took advantage of his mental illness in pursuit of his conviction; waiter files lawsuit alleging anti-gay discrimination by Houston Rockets and the catering company for which he worked; and, New Mexican man files civil rights claim alleging excessive force by the prison officials who beat and Tased him while he was still restrained by shackles.

Texas abortion clinics sue to block state's new restrictive law requiring such facilities to meet building standards applicable to ambulatory surgical centers; and, federal appeals court stays Arizona's new abortion law preventing women from consuming abortion inducing drugs after the seventh week of pregnancy.

Mississippi 'religious freedom' bill allowing citizens and business to challenge laws that 'substantially burden' their 'exercise of religion' goes to the governor.

NPR examines the difficulties of implementing the Prison Rape Elimination Act.

North Carolina Board of Elections reports evidence of potential voter fraud.

Hobby Lobby invests in companies that produce contraception and abortion drugs.

April 3, 2014 | Permalink | Comments (0)

Wednesday, April 2, 2014

"The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration"

The title of this post comes from this recent paper by Professor Anders Walker, the abstract of which states:

This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics. Though generally associated with repression and discrimination, both Jim Crow and mass incarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results. Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.

April 2, 2014 | Permalink | Comments (3)

SCOTUS: BCRA's aggregate contribution limits "intrude without justification" on First Amendment political speech

Today, the Supreme Court finally released its long-awaited decision in McCutcheon v. Federal Election Commission, which held that the Bipartisan Campaign Reform Act (BCRA) of 2002's combined campaign contribution limits on individual donors violate the First Amendment right to political speech. C.J. Roberts's plurality opinion concludes:

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.

At Slate, Professor Rick Hasen reacts:

It seemed pretty clear after oral argument that the government was going to lose—the five conservative Justices on the court have not voted to uphold a campaign finance limit since Justice Samuel Alito joined the court—but the question was how the government was going to lose. Of all the conservative jurists, Chief Justice John Roberts was hardest to pin down after argument, and he expressed some sympathy at the time with the government’s argument that if the aggregate limits fell, it would provide an opportunity for individuals to give multimillion-dollar checks to elected officials, parties, and political committees to be divvied up through sophisticated campaign finance entities. It even appeared that Roberts might vote to uphold some aggregate limits and strike down others.


But in today’s opinion, that hesitation and that potential to take a middle road evaporated. Instead we have vintage Roberts playing the long game. The tone is one of minimalism and moderation: We are only striking down aggregate limits, not the base limits, which currently prevent individuals from giving more than $2,600 per election to federal candidates. There are lots of things Congress can try to enact (though Roberts knows it won’t) in order to prevent the rise of these transfers and candidate fundraising committees. We don’t need to revisit the distinction the Supreme Court made in the 1976 case of Buckley v. Valeo, in which the court held that contribution limits are subject to less searching judicial review than spending limits.


But this is nevertheless a subtly awful decision. It is true that Roberts sidestepped today the question of whether to apply “strict scrutiny” of contribution limits in another case; he did not need to take that dramatic (and high-profile) step to do a whole lot of damage to campaign finance law. Instead, he did three things which now set the course toward even more campaign finance challenges under the First Amendment and more deregulation.


First, as I feared, he has incorporated the very stingy definition of corruption used inCitizens United spending limit cases into the contribution area. This matters because the court has recognized only the interest in preventing corruption and the appearance of corruption as a permissible reason for upholding campaign finance limits. (Equality, for example, is a forbidden interest under the First Amendment). By requiring that any campaign finance laws be deemed necessary to prevent quid pro quo corruption, akin to bribery, many more campaign laws could fall in the near future, including those base $2,600 limits. While Roberts goes out of his way to say that those base limits were not challenged today, he does not do anything to affirm that those limits are safe. In fact, he expressly says those limits don’t prevent corruption, but are “prophylaxis”—and that itself could provide a basis for striking it down.


Second, Roberts makes that laxer level of scrutiny applicable to review of contribution limits somewhat stricter. Buckley established that contribution limits get judged under something called “exacting scrutiny,” which in practice in the past has led the court to uphold a large number of contribution limits based upon very little evidence of corruption. Today Roberts tightens that standard, requiring more evidence (to be judged against the new strict “corruption” definition). He had no need, then, to adopt “strict scrutiny” for contribution limits. Why write an opinion that dramatically adopts strict scrutiny when one can accomplish nearly the same thing by quietly changing the meaning of the “exacting scrutiny,” which applies to contribution limits?


Third and most dramatically, the court seems to open the door for a future challenge to what remains of the McCain-Feingold law: the ban on large, “soft money” contributions collected by political parties. These contributions were banned because it had become clear that political parties were becoming conduits for access between elected officials and big donors. Today Roberts rejects ingratiation and access as a problem, and says that this funnel of significant money to parties could serve the purpose of strengthening political parties and thus be a good thing. He writes: “When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quocorruption would dramatically expand government regulation of the politi­cal process.”

Also see here, here and here.

CRL&P related posts:

April 2, 2014 | Permalink | Comments (0)

CRL&P Daily Reads: Apr. 2, 2014

1_0Colorado man files civil right lawsuit alleging Idaho State Patrol detained him on suspicion of marijuana possession based on his state license plate; and, Pittsburgh police accused of severely beating a black student cost the city $119,000 for false arrest, but not liable for excessive force.

Texas resists disclosing identity of the pharmacy supplying its execution drugs; Oklahoma will use a new drug cocktail in upcoming executions; and, Prof. Berman at SL&P highlights a recent article on the state of executions in Ohio.

11th Cir. dismisses Green Party appeal of lower court's decision upholding Georgia's ballot access provision; and, Ballot Access News notes this local article reporting that the Maine legislature might dispose of the Electoral College in favor of a direct popular vote.

Equal Protection Clause protects legal immigrants' right to a concealed-carry weapons permit, says federal judge; and, federal court hears challenge to Colorado's new law expanding background checks and limiting magazines to 15 rounds.

Point Blank Project shows the view down the barrels of handguns (see image).

April 2, 2014 | Permalink | Comments (0)

Tuesday, April 1, 2014

"The law need not choose between protecting religious and secular convictions."

University of Virginia law professor Micah Schwartzman has two new essays exploring the propriety of giving special treatment to religion. In Religion as a Legal Proxy, he argues:

The idea that religion warrants special treatment has been criticized as violating norms of equality and fairness. In response, Andrew Koppelman has argued recently that the American legal tradition of treating religion as a “good thing” is justified on the grounds that when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. In this essay, I argue that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. The case for adopting religion as a proxy turns on arguments against potential substitutes. Even if no category can serve as a complete substitute for religion, however, its use as a proxy can be complemented by protections for the freedom of conscience. The law need not choose between protecting religious and secular convictions. It can and should provide significant protections for both.

Similarly, in the abstratct of Religion, Equality and Public Reason, he writes:

A growing number of critics have asked whether singling out religion for special treatment is morally justifiable. In Religion Without God, Ronald Dworkin sides with those who reject the distinctiveness of religion. In this essay, I situate Dworkin’s argument within the larger debate. I then argue that his view is driven toward replacing a distinction between religious and secular commitments with one that turns on the difference between public and nonpublic values. The latter distinction is central to the idea of public reason. Although Dworkin resisted this idea, his arguments against the distinctiveness of religion lead him inexorably to some conception of it, suggesting the inevitability of a commitment to public reason for those who occupy a certain place in the debate about whether religion is special.

April 1, 2014 in First Amendment, Freedom of Religion | Permalink | Comments (0)

CRL&P Daily Reads: Apr. 1, 2014

Civil rights lawsuit alleges wrongful death in suicide of an inmate suffering from drug withdrawal who repeatedly asked for medical treatment; mother alleges Chicago public officials covered up Medical-marijuana-ediblesinvestigation into her son's death in order to protect 'the entire Daley dynasty'; federal judge says more information is required in death of a Texas inmate from heat stroke; student alleges police falsely arrested him for questioning their authority to park illegally and ask for his ID; and, Wisconsin radio show host claims his arrest for taking pictures of protesters violated his First Amendment rights.

State court strikes down the New Jersey law requiring petition circulators to be residents of the district towards which their efforts are directed.

Federal judge won't intervene to stop law severely limiting the use of abortion-inducing drugs; and, Louisiana house passes a bill requiring doctors performing abortions to have admitting privileges at nearby hospitals.

Rhetoric of NRA rallies scares an NRA board member.

Oregon officials retreat from push to ban the sale of edibles in medical marijuana shops

April 1, 2014 | Permalink | Comments (0)

Monday, March 31, 2014

"[G]a[y]ffirmative Action: The Constitutionality of Sexual Orientation-Based Affirmative Action Policies"

The title of this post comes from this forthcoming paper by Professor Peter Nicolas, the abstract of which states:

Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities — such as affirmative action policies — as they do to laws invidiously discriminating against them.

The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court’s established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.

As a result of that tension, the Court’s line of precedents for identifying new suspect and quasi-suspect classes has gone dormant, and it has not since considered whether any additional such classes exist. Instead, when confronted with plausible candidates for heightened scrutiny, such as gays and lesbians, the Court has engaged in sporadic application of stealth rational basis review.

In this article, I use a hypothetical equal protection challenge to a sexual orientation-based affirmative action policy as a vehicle for proposing a roadmap for harmonizing these competing lines of precedent. I demonstrate that, in light of the consistency principle, an aggrieved heterosexual can bring a challenge to such a policy and seek heightened equal protection scrutiny even though the Court has yet to establish heightened scrutiny for laws discriminating against gays and lesbians.

I conclude that such a harmonization of the Court’s equal protection precedents will reinvigorate the Court’s moribund precedents for identifying new suspect and quasi-suspect classes. Moreover, I conclude that announcing heightened scrutiny in such a case would present a particularly appealing vehicle to the Court’s center, represented by Justice Kennedy, whose jurisprudence demonstrates both support for gay rights and hostility toward affirmative action policies.

March 31, 2014 in 14th Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Mar. 31, 2014

Sunday, March 30, 2014

"Transgender Student in Maine May Use Bathroom that Matches Gender Identity - Are Co-Ed Bathrooms Next?"

The title of this post comes from this upcoming article, the abstract of which states:

This is an exciting time for the transgender rights movement. The law is increasingly forbidding discrimination based on gender identity and/or gender expression. As a result, transgender individuals are starting to win the right to use bathrooms that match their gender identity. Last summer, California’s governor signed a law that allows transgender youth to participate in sex-segregated sports, and use sex-segregated locker rooms and bathrooms in accordance with their gender identity. Also last summer, the Colorado Civil Rights Division became the first government body in the country to rule that a six-year-old transgender girl, born a boy, must be allowed to use the girls’ bathroom at her school. Less than two months ago, the high court in Maine became the first state court in the country to rule that a transgender student who was born a boy but identifies as a girl has the right to use the girls’ bathroom at school. 

This Article will examine this new trend and discuss whether it could, and should, lead to co-ed bathrooms throughout the country. The Article will conclude that desegregating bathrooms would significantly alleviate harm currently caused to transgender individuals and others and that, furthermore, desegregated bathrooms are constitutionally required under the Equal Protection Guarantees contained within the United States Constitution.

March 30, 2014 in 14th Amendment | Permalink | Comments (0)

Thursday, March 27, 2014

CRL&P Daily Reads: Mar. 27, 2014

Oklahoma state judge rules state's death penalty law is unconstitutional because of the inability  to learn which drugs are used to kill; and, lawyers sue Texas for information about the pharmacy supplying the drugs A63cb41d4393for two scheduled executions.

Appeals court upholds stay on same-sex marriages in Michigan, and Gov. Snyder says state will not recognize same-sex marriages that took place prior to the stay.

UN says U.S. hasn't fulfilled its commitments under a civil rights treaty.

Texas city faces lawsuit alleging deliberate indifference by police in a 2011 chase that ended in the claimant's bedroom.

Day care sues NYC alleging shut down provoked by complaints about extortion by a city official, who, according to the 6th Cir., is not protected here by qualified immunity. 

March 27, 2014 | Permalink | Comments (0)

While on the topic of stop-and-frisk...

The Atlantic today has What Stop-and-Frisk Means to the Descendants of Slaves by Theodore R. Johnson, which begins:

Jehu Grant was a Rhode Island slave who escaped the bondage of his anglophile master to join the fight for American independence. He was in his eighth month of service in George Washington’s Continental Army when the military returned him to his owner. Years later, Grant obtained his freedom papers and, as an 80 year old indigent man who’d lost his eyesight, he applied for the military annuity authorized in the Pension Act of 1832. His appeal was denied because the War Department determined that a slave could not also be a soldier. Despite a commitment to America’s founding principles and a mortal fight for liberty, he was denied capital gain by the very nation in which he’d literally placed his blind trust.


Grant’s story is instructive: as a black man, I know America was not intended for me. This is not an indictment; it’s just reality. When the nation was forged from fruited plains and purple mountain majesties, it was crafted for a specific, privileged segment of the population. The founding fathers determined that the actual construction of the republic was a higher priority than ensuring that the rights it promised were available to everyone. Pragmatism ruled over idealism. Despite a national gospel that deified freedom and independence, the exclusion of black liberty was coded into the American DNA.


This is what Daniel Bergner ultimately details in his April Atlantic article, “Is Stop-and-Frisk Worth It?” The proactive policing program is ostensibly an honorable attempt to provide safe communities. But whether or not the program is effective (the rationale and statistics have so far been insubstantial), the discriminatory way it is carried out reflects the same pathologies that thwarted our first attempts at liberty. Stop-and-frisk isn’t racist on purpose. It was just born that way.

March 27, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Wednesday, March 26, 2014

"Stop and Frisk Didn't Make New York Safer"

The Atlantic's Donald Braman writes:

When former NYPD Commissioner Ray Kelly was asked what would happen if stop-and-frisk were curtailed, his response was characteristic of his tenure: “No question about it,” he said “violent crime will go up.” When homicides rose in Chicago, Chicagoans clamored for NYPD-style stop-and-frisk. The same premise is repeated by proponents of stop-and-frisk throughout Daniel Bergner’s illuminating Atlantic article: if you want to reduce crime, you have to be willing to suffer more aggressive policing tactics.


In reality, there’s no good reason to assume that these strategies work to reduce crime. David Greenberg has conducted the most comprehensive analysisof the relationship between the NYPD’s practice of stop-and-frisk and crime levels to date, and he finds “no evidence that misdemeanor arrests reduced levels of homicide, robbery, or aggravated assaults.”


No one thinks a police officer with a reasonable suspicion that a suspect has a gun should be barred from frisking the suspect, but that is not what stop-and-frisk has come to mean. The now-abandoned practice of requiring officers (often fresh out of the academy) to meet performance goals for citations and arrests seems wrong on several levels, but the most fundamental one is that it doesn’t reduce crime. A close second is the increased costs to families and communities. As Bruce WesternAmanda GellerChristopher Wildeman, andmany others have described, the collateral damage from broad criminalization is far-reaching, and concentrated on the populations that can least afford them.


So why are so many so enamored of these dubious tactics?

March 26, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

"The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'"

The title of this post comes from this recent contribution to the debate over NYC's stop-and-frisk program by Professor Jeffrey Bellin, the abstract of which states:  

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.
CRL&P related posts:

March 26, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

CRL&P Daily Reads: Mar. 26, 2014

NYC corrections officer allegedly deliberately ignored the medical needs of an inmate who had swallowed poisonous cleaner.

San Fran law requiring firearms to be kept in a locked container or disabled when not being carried is constitutional, says 9th Cir.

Defense begins arguments in excessive force case against Pittsburgh police for 2010 arrest; federal judge dismisses civil rights lawsuit alleging excessive force by police officers who shot at a fleeing truck; police officers cleared of wrongdoing in 2007 death of man shot six times in his own home; and, rights groups are calling for an excessive force investigation after the release of video showing the shooting death of a homeless man by Albuquerque police.

Professor Volokh clears up some apparent confusion about the right of access to public records

WaPo has this interesting round-up of vote-buying scandals.

March 26, 2014 | Permalink | Comments (0)

Tuesday, March 25, 2014

"Unfinished Business: Protecting Voting Rights in the Twenty-First Century"

The title of this post comes from this paper by Professor Gilda Daniels, the abstract of which states:

While minorities have experienced great progress because of the Voting Rights Act, particularly section 5 of the Act, the work to achieve an electoral process free of discrimination remains unfinished. In Shelby County v. Holder, the Supreme Court struck down section 4 of the Act, which provided the coverage formula through which section 5 was implemented. Without section 4, there is no section 5. The historical and contemporaneous discrimination that minorities instates formerly covered under Section 5 continue to face is substantial and outpaces noncovered states. Scholars cannot divorce the debate surrounding section 5’s constitutionality, which continues even after Shelby County, from its historical role in combating discrimination in voting. Using a comparative framework of a section 5-covered jurisdiction and a noncovered jurisdiction, this Article discusses the impact of the loss of section 4 of the Voting Rights Act after the Supreme Court’s decision in Shelby County v. Holder and suggests a path forward.

March 25, 2014 | Permalink | Comments (1)

Dancers sue San Diego police following recent raid of area strip club

The San Diego Police Department faces a civil rights lawsuit filed on behalf of more than two dozen dancers who allege they were held against their will during a recent raid of a local strip club. This local article explains:

Twenty-five dancers at a San Diego strip club have filed a civil rights lawsuit against the San Diego Police Department, claiming that police officers held them against their will and took revealing pictures of their tattoos.


StripperTen San Diego police officers raided the Cheetahs Gentlemen’s Club in Kearny Mesa on March 6 to check 30 dancers’ permits and the business’ compliance to city codes, according to a claim filed by attorney Dan Gilleon.


During the check, the claim says the unidentified officers detained dancers against their will for about one hour without a warrant and without probable cause.


They ordered the women to pose in various positions and expose their body so the police could photograph their tattoos, all the while making “arrogant and demanding comments” and telling the women to “smile,” the claim states.


According to Gilleon, the SDPD said its officers were abiding by municipal code as they inspected the business and demanded identification.


“Any peace officer shall have free access to any police-regulated business during normal operating hours,” municipal code states.


But the civil rights lawsuit said the officers went too far, violating the dancers’ civil rights by making them disclose private information like Social Security numbers and subjecting them to demeaning searches and seizures.


Cheetahs manager Rich Buonantony said this isn’t the first time something like this has happened.


He claimed the women were helpless because if they said “no” to any part of the operation, their work permit and business licenses could be taken away.


The claim filed against the SDPD is for more than $10,000, though an exact dollar amount has not been released.

March 25, 2014 in Civil Rights Litigation, Fourth Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Mar. 25, 2014

Image001-(31)Supreme Court will hear oral argument today in the challenge to the ACA's contraceptive mandate, a case with potentially far reaching consequences. 

Wisconsin legislature sends bill ending weekend and evening voting to Gov. Walker for his signature.

Same-sex marriages halted in Michigan pending appeal of lower court's ruling that state's ban is unconstitutional.

Civil rights lawsuit alleges a cover-up by former Chicago police superintendents and Cook County officials in the investigation of a young man's death after being punched by the nephew of the former mayor.

The Nation's Zirin lambastes NBC's Meet the Press's for failure to discuss institutionalized racism in NCAA discussion.

March 25, 2014 | Permalink | Comments (0)

Monday, March 24, 2014

"Discursive Disparities"

The title of this post comes from this essay by Professor Nancy Leong, the abstract of which states:

Both within and beyond the legal profession, men write more than women. Men publish more books; the books men write are reviewed more often in the most widely read forums; men write more of the reviews; men dominate the opinion pages of major news outlets; men write more of the articles in the most widely read magazines; and more men blog on the most widely read websites. Even on Wikipedia — widely hailed as a cyber-utopia open to anyone — more than 85% of entries are primarily authored by men. This is true also in the legal realm. Men write more judicial opinions. Men author more legislation. Men write more briefs — both for parties and as amici — before the Supreme Court. Men write more law review articles, and their articles are published in more prominent journals. Indeed, the disparity in legal scholarship begins in law school, where men publish a disproportionate percentage of student notes.

This Essay begins by suggesting several explanations for the gender disparity in the amount of discursive space men and women occupy. It then examines the consequences of that disparity. It first emphasizes the harms to women that the disparity causes, with an emphasis on the legal profession. Such harms include economic loss, damage to career, and diminished public influence. These harms are serious in themselves. Perhaps more importantly, however, the discursive gender disparity means that men’s words dominate public discourse, and to control discourse is to control reality. When men’s words, thoughts, ideas, and arguments constitute the overriding public narrative, the result is that men determine the texture of daily life on matters both trivial and grave. The result of the discursive disparity is that male discourse exercises a disproportionate influence on our collective consciousness.

The Essay concludes with preliminary suggestions for interventions to ameliorate the discursive disparity.

March 24, 2014 | Permalink | Comments (0)

Sunday, March 23, 2014

"Congressional Authority to Protect Voting Rights after Shelby County and Arizona Inter Tribal"

The title of this post comes from this recent essay by Professor Franita Tolson, the abstract of which states:

This Essay, written for the 2014 AALS program on "The Right to Vote: From Reynolds v. Sims to Shelby County, and Beyond," attacks the U.S. Supreme Court's narrow view of congressional authority to regulate voter qualifications adopted in Shelby County v. Holder and Arizona v. Inter Tribal Council, and argues that Congress has significant authority over voter qualifications under Article I, section 5, which allows it to judge the elections of its members. Although Congress exercises its authority under this provision after the election has taken place, it remains a source of authority that the Court should have considered in its attempt to craft competing paradigms of state and congressional power over elections in these decisions. By examining election contests from the 47th Congress, the argument herein sheds light on the scope of congressional authority over elections by analyzing Congress’s willingness to intervene in state level disputes over congressional seats. A review of the historical record reveals that the House of Representatives often overturned elections in which state or federal law was not complied with in determining the winner, even in disputes that dealt primarily with voter qualifications. Both Shelby County and Arizona Inter Tribal tell a woefully incomplete story about congressional authority over elections, ignoring that the House’s authority to resolve election contests under state and federal law can be just as powerful as the state’s authority to determine the qualifications of electors ex ante.

March 23, 2014 | Permalink | Comments (0)

Saturday, March 22, 2014

"Democracy and the Right to Vote: Rethinking Democratic Rights Under the Charter"

The title of this post comes from this recent paper by Professor Yasmin Dawood, the abstract of which states:

This Article advances a new analytic framework for the Supreme Court of Canada’s theory of democracy and the right to vote. After setting forth the Court’s general approach to democracy, I argue, first, that the Court has adopted a “bundle of democratic rights” approach to its understanding of the right to vote. By this I mean that the Court has interpreted the right to vote as consisting of multiple democratic rights, each of which is concerned with a particular facet of democratic governance. 

Second, I claim that the democratic rights recognized by the Court are best understood as “structural rights.” In its law of democracy decisions, the Court is attuned to the structural dimension of democratic rights because it recognizes that an individual’s exercise of his or her rights takes place within an existing organization of social and political power. Structural rights theory thus offers a new way to account for the individual and institutional dimension of democratic rights.

I argue that the Court’s recognition of multiple democratic rights, and its attention to the structural dimension of these rights, has enabled it to regulate the democratic process as a whole. This Article examines how the Court has regulated a wide array of complex issues - such as the structure of representation, electoral redistricting, the role of money in elections, individual participation, political equality, and the regulation of political parties - by using the mechanism of rights. It also shows how many of the internal tensions in the Court’s law of democracy decisions have their roots in conflicts among these democratic rights. Instead of suppressing these conflicts, I claim that the Court should render them transparent and provide a justification for the resolution it ultimately reaches. In sum, the Supreme Court’s approach to democracy and the right to vote provides a useful paradigm for courts in other jurisdictions that are likewise faced with the complexity of supervising the democratic process.

March 22, 2014 | Permalink | Comments (0)

Friday, March 21, 2014

"Civil Rights"

The title of this post comes from this paper by Professor David Kairys, the abstract of which states:

Civil rights are legal protections of individuals or groups from certain forms of oppression that gained widespread acceptance throughout the world in the last half of the 20th century and continuing into the 21st century. The origins of civil rights can be found in practices of governments or powerful individuals or institutions that came to be viewed as oppressive, although these are often obscured in foundational or origin stories that take on an abstract, timeless quality. The most common civil rights are prohibition of discrimination based on race, ethnicity, religion and gender; the right to personal security, including protections for persons accused or suspected of crimes; the right to vote and to participate in democratic political processes; and freedom of expression, association and religion. Civil rights lose their significance if they are not available to all people, but the failure to acknowledge conflicting rights and the interconnectedness of rights, interests, privileges and expectations has made acceptance of civil rights advances more difficult than it has to be, particularly in countries where rights tend to be articulated in absolutist terms. The most troubling questions about civil rights have centered on which rights are protected, their content and formulation, and their enforcement. The model of judicial primacy in the United States produced two periods of historic protection of civil rights available to people of ordinary means, but no single source or enforcement mechanism for civil rights has proved consistently superior to others. Establishment and enforcement seem most effective when accomplished by popular and participatory means, and popular understanding of the importance and history of civil rights is probably the most significant factor in their continued vitality.

March 21, 2014 | Permalink | Comments (0)

Thursday, March 20, 2014

"Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder"

The title of this post comes from this upcoming paper by Professor Lani Guinier and attorney James Uriah Blacksher, the abstract of which states:

The "equal sovereignty" principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be "citizens" within the meaning of the Constitution. Otherwise, he said, blacks would be entitled to all the fundamental rights of citizenship guaranteed by the Privileges and Immunities Clause of Article IV, Section 2, including the right to vote, a result that would violate the equal sovereignty of the slave states. Black people, Chief Justice Taney wrote, could only enjoy those rights the sovereign people of each state chose to give them.

The Dred Scott decision was one of the provocations that led to the Civil War and to the adoption of the Reconstruction amendments to the Constitution. Section 1 of the Fourteenth Amendment, ratified in 1868, overruled Dred Scott’s holding that freedmen and their descendants were not citizens, and it prohibited the states from abridging "the privileges or immunities of citizens of the United States." Section 5 of the Fourteenth Amendment gave Congress the power to enforce the Privileges or Immunities Clause. But black voting rights were unpopular in the northern states, as well as in the South. Referendums on black suffrage had been defeated in many northern states in 1867, including Ohio, Kansas, and Minnesota. So the drafters of the Privileges or Immunities Clause had to concede, at least for the time being, that it did not guarantee the franchise. Instead, they placed in Section 2 of the Fourteenth Amendment a threat to reduce Congressional representation for states who denied the franchise to any of its "male inhabitants." The Reconstruction Republicans forced the former Confederate states, still under military rule, to enfranchise blacks as a condition for being readmitted to Congress. Then in 1870 they adopted the Fifteenth Amendment, which prohibited denying or abridging the right to vote on account of race. The door was left open, however, for a future Congress to give the Privileges or Immunities Clause its plain meaning by enforcing the right to vote of every American citizen.

The Supreme Court moved immediately to close the door to such future Congressional action by judicially neutering the Privileges or Immunities Clause. The 1873 Slaughter-House Cases reaffirmed Dred Scott’s holding that power to define the fundamental rights of citizenship belonged to the states, not to the federal government. A year later, in Minor v. Happersett, the Court rejected the claim of women suffragists that the Fourteenth Amendment Privileges or Immunities Clause guaranteed them the franchise. The Constitution does not give anyone the right to vote, the Court said.

The former slave states wasted little time taking the Court’s cue. By the turn of the century they had disfranchised their black citizens and had openly established regimes of white supremacy that racially segregated nearly all aspects of life in the South, without fear of penalty by a Congress engaged in reconciling whites North and South. In a 1903 opinion written by Justice Oliver Wendell Holmes, the Supreme Court told blacks in Alabama the federal courts were powerless to restore their right to vote.

African Americans remained disfranchised in the South until, through generations of bloody sacrifice, they finally got Congress to use its power to enforce the anti-discrimination provision of the Fifteenth Amendment and pass the Voting Rights Act of 1965. At first the Supreme Court upheld Congress’ authority to enact and to re-enact the Voting Rights Act, but eventually it began to push back. Now, in Shelby County, a five-four majority has struck down the coverage formula in the 2006 amendments to the Voting Rights Act, relieving the Southern states from having to obtain federal preclearance before implementing changes in their voting practices. But, by invoking the unwritten doctrine of "equal sovereignty," Chief Justice John Roberts’ opinion for the Court forces us to revisit the racially discriminatory origins of that doctrine and its role in undermining the Privileges or Immunities Clause.

The authors argue that the appropriate response by Congress to Shelby County would be reasserting its explicit constitutional authority to interpret the Privileges or Immunities Clause. Adoption of the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments and the Court’s repeated acknowledgment of a constitutional right to vote have effectively overruled the Slaughter-House Cases and Minor v. Happersett. The American people of the twenty-first century should demand that Congress enact statutes expressly proclaiming what no one today can deny, that the right to vote is the paramount privilege or immunity of citizenship in the United States. Congress should exercise its Fourteenth Amendment power to enforce the Privileges or Immunities Clause and begin establishing uniform national standards for the administration of all elections, federal, state, and local, that guarantee full access to the franchise for all American citizens.

The 2006 Voting Rights Act had special constitutional stature; it was the first voting rights law in American history passed with the participation of African-American members of Congress from every one of the former Confederate states. Its re-enactment based on Congressional authority to enforce the right to vote under the Privileges or Immunities Clause, rather than on the anti-discrimination provisions of the Equal Protection Clause and the Fifteenth Amendment, would render irrelevant the Supreme Court’s call for comparing the states’ current records of voting discrimination. It would emphatically repudiate the racially tainted equal sovereignty principle relied on in Shelby County and finally renounce the legacy of Dred Scott by proclaiming African-American citizens’ full membership in the sovereign people of the United States.

March 20, 2014 | Permalink | Comments (2)

Wednesday, March 19, 2014

"Civil Rights 3.0"

The title of this post comes from this paper by Professor Nan Hunter, the abstract of which states:

It is now commonplace to hear the LGBT rights movement being described as the last, or the next, or today’s, pre-eminent civil rights issue. This chapter will explore what that means from several perspectives: What does the label tell us about the civil rights paradigm itself? If the achievement of marriage equality is the great civil rights achievement of this generation, what does that suggest about a future for equality more generally? How have new forms of, and technologies for, movement building affected the idea and practice of civil rights? Does the civil rights paradigm have a future? I focus in on three aspects of the social meaning of civil rights: legal doctrine and legal institutions, social movement strategies, and the tension between the discourse of challenges to social hierarchy and that of civil rights.

What we learn is that LGBT advocates have contributed to the overall project of formal equality under law primarily by developing an extraordinary strategic and tactical dexterity, uniquely so at the state level and in its alliance with the business sector. As to the latter, however, there are serious potential disadvantages. In the current political framework, the possibility of advances in substantive equality law – either statutory or Constitutional – has shrunken to the point that, even as LGBT rights groups make breakthroughs in achieving goals such as marriage equality, they will do well to avoid having to take backward steps with regard to such overarching concepts as the disparate impact principle or heightened scrutiny. For the future, the big question for this movement – and all other social justice movements in the United States – is whether it will deploy its talents and resources to challenge embedded, structural forms of discrimination.

March 19, 2014 | Permalink | Comments (0)

"Arizona, Kansas prevail in voter ID lawsuit"

The AP reports:

A federal judge has ordered the U.S. Election Assistance Commission to help Kansas and Arizona enforce laws requiring new voters to provide proof of their U.S. citizenship.


U.S. District Judge Eric Melgren in Wichita, Kan., ruled Wednesday that the commission has no legal authority to deny requests from Kansas and Arizona to add state-specific instructions to a national voter registration form. The states sued to force the action.


Both states require new voters to provide proof of their U.S. citizenship to election officials. The federal registration form requires only that prospective voters sign a statement that they are citizens.


Melgren said the U.S. Constitution gives states the power to set voter qualifications, and Congress has not pre-empted it, even in enacting a federal voter-registration law in the 1990s.

March 19, 2014 | Permalink | Comments (0)

Oklahoma used already executed convicts as disposals for unused execution drugs

First, Oklahoma had to delay two scheduled executions because it was unable to obtain the increasingly-difficult-to-find drug cocktail needed for the killings. The Atlantic now reports that the state has been disposing of unused execution drugs by injecting them into the already executed. The article begins:

3d9592a708d2be2e8e6b0a0d007f68a7_largeThe state of Oklahoma injected executed convicts with lethal drugs for "disposal purposes," newly published state records show.


The macabre practice, first reported Tuesday by The Colorado Independent, could tamper with postmortem toxicology results in a way that obscures from public knowledge the amount of pain endured during execution, a revelation that calls into question the state's methods for administering capital punishment at a time when lethal-injection protocols nationwide are drawing renewed scrutiny.


"Convicts executed in Oklahoma have in some cases died from overdoses of pentobarbital or sodium thiopental, the anesthetic, rather than the second and third injections in the three-drug cocktail, according to documents obtained by The Independent," reporter Katie Fretland writes. "Records show executioners then injected the remaining two drugs into convicts' dead bodies for what forms turned over in response to an open-records request refer to as 'disposal purposes.' "


State prison officials defended the practice, telling The Independent that it follows appropriate protocol.


Fretland's reporting also examines emails between Oklahoma officials joking about helping Texas obtain certain lethal drugs in exchange for college football tickets.


"Looks like they waited until the last minute and now need help from those they refused to help earlier," an official wrote in January 2011. "So, I propose we help if TX promises to take a dive in the OU-TX game for the next 4 years."

CRL&P related posts:

March 19, 2014 | Permalink | Comments (1)

CRL&P Daily Reads: Mar. 19, 2014

Trial date set for civil rights lawsuit alleging excessive force by police offices in shooting death of man allegedly already incapacitated by a 'stun gun.'

Costume-grim-reaper-clipartOklahoma can't get drugs for upcoming executions.

Opponents of Oklahoma's same-sex marriage ban filed their brief with the 10th Circuit on Monday arguing that the law demeans same-sex couples and their children; judge denies supporter's request to intervene in challenge to Pennsylvania's same-sex marriage ban; and, Obama administration moves to expand healthcare coverage for same-sex couples.

Discrimination suit against FDNY alleging racial bias in written exams settles for $98 million.

Supporters of the proposed 'Ohio Voter Bill of Rights' given go-ahead to start collecting the signatures needed to qualify for the November ballot.

North Dakota announces federally funded voter ID education effort.

March 19, 2014 | Permalink | Comments (0)

Tuesday, March 18, 2014

"Salvation Army Settles Lawsuit on Religious Discrimination"

The New York Times reports today that The Salvation Army has finally resolved the lawsuit accusing it of religious discrimination. The title of this post comes from the article, which states:

The Salvation Army on Tuesday settled a decade-old lawsuit that charged it with engaging in religious discrimination by requiring its government-funded social service employees to reveal their beliefs and to agree to act in accordance with the Christian gospel.


Bellringers2000As part of the settlement, approved by a federal judge in Manhattan, the Salvation Army will distribute to its New York employees who work in programs that receive government financing a document stating that they need not adhere to the group’s religious principles while doing their jobs, nor may they be asked about their religious beliefs.


The Salvation Army, which is both an evangelical church and a charitable organization, will also pay $450,000 to settle claims by two former employees, Anne Lown and Margaret Geissman, that they were pushed out of their jobs in retaliation for their objections to the group’s policies.


The group, which administers millions of dollars in government contracts to run homeless shelters, soup kitchens, after-school programs and day care centers in the New York area, did not admit wrongdoing as part of the settlement.


The church said in a statement that it welcomed the settlement, and that the document it is now required to distribute was merely “confirmation in writing of policies long followed by its Greater New York Division,” rather than an assertion of anything new.


Ms. Lown, who is Jewish, recalled on Tuesday that she had been overseeing the Salvation Army’s children’s services division in New York in 2003 when she was asked to have her employees fill out a form asking about their church attendance and their ministers’ names. The move coincided with a reorganization at the Salvation Army to more closely align the missions of its religious and social services wings.


“I felt it wasn’t right,” she said. “We were publicly funded, we were providing services on contract with New York City and State, and they were really imposing a religious test.”


The lawsuit, filed in 2004 on behalf of 18 former and current employees, also charged that the Salvation Army was proselytizing while delivering services to vulnerable populations, like foster children. Much of the case was dismissed in 2005, and in 2010, another part of the case was settled when several state and city agencies agreed to audit the Salvation Army for two years to make sure it did not cross the church-state line in its delivery of services.


The auditing protocol established by the case is now in use with other faith-based providers, to make sure that they are not proselytizing during their work with the poor and needy, said Donna Lieberman, the executive director of the New York Civil Liberties Union.

March 18, 2014 | Permalink | Comments (0)

"Veiled Discrimination: Coercive Assimilationism in the Workplace"

The title of this post comes from this intriguing paper by Professor Sahar Aziz, the abstract of which states:

Fifty years after Congress passed the Civil Rights Act of 1964, unlawful discrimination continues to ail American workplaces. Despite the prevailing narrative that America is now "post-racial" after the election of the first African American president, equal opportunity still eludes many Americans. Their membership in racial, ethnic, or religious groups stigmatized as the "other" adversely affects their access to education, political empowerment, and equal opportunity in the workplace.

At the time Title VII was passed, victims often experienced explicit bias against their protected group. The law’s immediate effect was to ban overt prejudice causing disparate intergroup discrimination between men and women, blacks and whites, different ethnicities, and Christians and non-Christians.As a result, Title VII, along with other anti-discrimination laws, has been relatively successful in rooting out explicit bias in employment. Many employers now refrain from overtly treating employees disparately on account of an immutable characteristic. But, as the data show, the absence of discriminatory policies on paper does not always translate into a discrimination free workplace in practice. Rather, it pushes bias into more covert manifestations wherein facially neutral factors become proxies for unlawful discrimination.

While Title VII prohibits covert bias; it is ill equipped to prevent two increasingly prevalent forms of discrimination: 1) implicit bias arising from negative stereotypes of protected classes; and 2) disparate treatment of subgroups of protected classes who do not conform to coercive assimilationist pressures.Because an employee alleging discrimination must show that a similarly situated worker outside the protected class does not receive the same adverse treatment or impact, an employer who treats a subgroup of a minority better than another subgroup of the same minority can evade liability. 

Of course, if the difference in treatment among the subgroups is based on performance and skills directly related to the work at issue, then no liability should attach. However, that is not always the case. Disparate treatment of members of the same protected class arises from negative racial, ethnic, or religious stereotypes that privileges those able and willing to perform their identity in accordance with assimilationist demands of the majority group. The effect is intragroup discrimination based on intergroup bias rooted in implicit negative stereotyping. 

Female employees who fall under multiple protected classes face an intersection of identity performance pressures as women, racial or ethnic minorities, and religious minorities.The dominant group’s expectations of how women or members of minority groups should behave, dress, and communicate to be "professional" are often contradictory due to conflicting stereotypes. A Black woman, for example, who is assertive, ambitious, and exhibits leadership qualities associated as masculine characteristics, risks being stigmatized as aggressive, insubordinate, and threatening because of negative stereotypes of blacks. Meanwhile, her behavior contradicts gender conformity norms that women should be deferential, gentle, soft spoken, and pleasant. And if she is a Muslim, then her behavior triggers stereotypes of Muslims as terrorists, disloyal, foreign, and suspect.

For workplace anti-discrimination laws to eradicate these multiple binds that disparately impact women of color, this Article argues that Title VII jurisprudence should take into account intergroup discrimination based on intragroup identity performance to assure all employees, not just a subset of a protected class, are covered by workplace antidiscrimination law. As such, a plaintiff’s treatment should not be compared only with similarly situated employees outside the protected class but also with similarly situated employees within the protected class whose identity performance accommodates coercive assimilationism rooted in stereotypes.

This Article applies social psychology and antidiscrimination theories to the case of Muslim women of color in the workplace, an under-researched area in legal scholarship. I examine in detail the identity performance challenges and contradictions faced by Muslim women of color as "intersectionals" facing stereotypes against 1) Muslims as terrorists, violent, and disloyal; 2) Muslim women as meek, oppressed, and lacking individual agency; 3) women as sexualized, terminally second best to men, and uncommitted to their careers; 4) immigrants as forever foreign and undeserving of equal treatment; and 5) ethnic minorities from the Middle East and South Asia as barbaric, misogynist, and anti-American. I conclude that Muslim women of color are at risk of falling between the cracks of Title VII jurisprudence due to courts’ unwillingness to recognize the harms caused by coercive assimilationst pressures to conform one’s identity to comport to high status group norms, irrespective of the relevance to work performance.

March 18, 2014 | Permalink | Comments (0)

CRL&P Daily Reads: Mar. 18, 2014

California chief justice says that the effect of budget cuts on citizens' access to the courts places the state on the verge of 'civil rights crisis.'

Breastfeeding-24469Eighth Circuit rejects sex discrimination claim of new mother who resigned after her employer allegedly failed to accommodate her breastfeeding needs

Witness to alleged excessive force by Pittsburgh police officer claims victim's hair and blood were on the ground and in the bushes the next day; family of homeless veteran sues sheriff's office for placing victim in a holding cell with an arrestee with a history of violence; family of homeless man shot 11 times by police in Michigan settles civil rights lawsuit.

State appeals court says death row inmate may access the records of the investigation by the district attorney's office in his case.

NYC developer faces lawsuit alleging properties discriminate against persons with disabilities.

March 18, 2014 | Permalink | Comments (0)

Monday, March 17, 2014

"Civil Death and the Execution of Democracy: Black Political Power in 'New Jim Crow' Era of Mass Incarceration"

The title of this post comes from this upcoming paper by Professor Christina Rivers, the abstract of which states:

Under the concept of "civil death", felony convictions trigger disenfranchisement laws that suspend the voting rights of prisoners, parolees and probationers. A disproportionate number of prisoners are African-American. Consequently, these laws disproportionately fetter black voting rights and political power as well. Many states and localities engage in prison-based gerrymandering: counting the incarcerated at their prison residences when reapportioning and redistricting. This practice enhances the political power of regions where prisons are located, while reducing that of the prisoners' home communities and of neighboring regions without prisons. Felon disenfranchisement and prison-based gerrymandering conflict with the core American principles of equality and democracy. Both policies constrain the spirit if not the letter of the Civil War amendments and the Voting Rights Act of 1965; the latter breathes new life into the Three-Fifths clause. In these respects, mass incarceration effectively executes a significant amount of African-American political power.

March 17, 2014 | Permalink | Comments (0)

CRL&P Daily Reads: Mar. 17, 2014

8track-ad75_cwLouisiana school district settles lawsuit alleging school officials discriminated against a Buddhist student by degrading Buddhist beliefs and requiring participation in Christian prayer;  judge tosses civil rights suit from man claiming nudity arrest during LGBT event discriminated against him because he was gay.

Federal judge strikes provision of Arkansas's abortion law banning the practice after 12 weeks of pregnancy.

Tennessee must recognize same-sex marriages, while Indiana's same-sex marriage ban faces a challenge; and, activists urge President Obama to issue an anti-discrimination order for federal contractors.

DNC taps Clintons in voter expansion efforts.

March 17, 2014 | Permalink | Comments (0)

Saturday, March 15, 2014

"The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787"

The title of this post comes from this article by Aaron Knapp, the abstract of which states:

This article asks whether a historically distinct constitutional “counterrevolution” took place in 1787-88. It concludes one did, but contends that neither economic interests, nor political ideology, nor general cultural trends in the decade after Independence, fundamentally impelled this counterrevolution’s leading figures. Rather, a counterrevolutionary jurisprudence did. At the heart of this jurisprudence lay a new constellation of attitudes about the relationship between law and coercion that, notwithstanding the enormous outpouring of scholarly commentary on the framing and ratification of the Constitution in the last century, has gone unappreciated by legal scholars and constitutional historians alike. The attitudinal transformation vis-à-vis coercion among reformers proceeded in two nested intellectual shifts -- the first discursive, the second positional -- which together form the basis for what I shall call the legal counterrevolution of 1787. The article’s historical analysis of the American constitutional founding through the prism of what leading Federalists styled “the coercion of law” exposes overlooked original understandings of the Supremacy Clause, the scope of Article III jurisdiction, and judicial review under the Constitution.

March 15, 2014 | Permalink | Comments (0)

Friday, March 14, 2014

"Venerate, Amend...and Violate"

The title of this post comes from this paper by Professor Oren Gross, the abstract of which states:

Practically every national constitutional document contains formal provisions for the amendment of that document. Amendments offer the specter of evolution, adjustment and adaptation of the constitutional design. Yet, at the same time, constitutional amendments are more then reflections of generative, inventive change. They are also, almost necessarily, destabilizing symbols of constitutional imperfection. As such, amendments to the foundational text challenge, the notion that the Constitution is a “kind of Ark of the Covenant of the New Israel that is America.” A “divinely inspired” text, “the most wonderful instrument ever drawn by the hand of man,” does not easily accommodate the very concept of amendment. 

If the notion of amendment is a difficult one to contend with in the context of a secular religion in which the Constitution is the central pillar, it becomes unbearable when the author of the constitution is not merely divinely “inspired” but is truly divine. For religious systems that are based on divine texts, acknowledging the very possibility of “self-conscious reformism” that amendment of these canonic texts entails is nothing short of revolutionary and perhaps even heretic. Thus, a theory of constitutional amendment that expressly exists in secular constitutional regimes, including those that profess constitutional faith, has no room, as such, in most major Western religions. Human beings, no matter how wise, simply cannot (descriptively) and should not (normatively) amend divine law.

The article addresses the fundamental conundrum that is presented by notions of perfect and complete divine law and the need for, and the reality of, human-initiated changes to that law throughout the ages. It does so through the prism of Jewish legal tradition while suggesting that this legal tradition is “optimally different” from our own legal world when the theory of constitutional amendments is concerned. 

The article considers the ability of Jewish authorities to deviate from the laws set forth in the Torah, the divine foundational text, and makes two claims in this context. The first is that Jewish law has always given questions such as “could rules promulgated by the halakhic, human, authorities deviate from the divinely ordained law of the Torah?,” a qualified affirmative answer. Despite the divine source of Torah law it was recognized early on that halakhic authorities could act in extraordinary emergency capacities to deal with exceptional circumstances when application of the ordinary law would produce unacceptable results. Acting in such capacity the halakhic authorities could, and did, set aside parts of the God-given Torah law and at other times suspended ordinary laws, promulgated emergency measures, and resorted to extralegal sanctions that had not been authorized under the Torah. Moreover, even in non-emergency circumstances we can find numerous examples — in rabbinic legislation and judicial decision-making — that deviate from the Torah. Indeed, in this “ordinary” context some such demonstrations go as far as overruling permanently the dictates of the Torah.

The second claim is that the legal basis for the sages’ ability to deviate from and violate the Torah is not always clear. Indeed, I suggest that the ambiguity about the legal foundation of such radical authority or power may be purposeful. Some halakhic authorities identify the source of their authority as present within the constitutional framework — the Torah — itself. Yet others seem to recognize that their actions had been devoid of legal authority. Rather than invoking their widely-recognized broad interpretative powers and attempt to make the claim that their actions and decisions had been in accordance with the dictates of the Torah, they accept, albeit tacitly, the need to act in contravention of the Torah. Moreover, and significantly, rather than argue for legal authority to act as they did, those sages base their actions on an extralegal power.

It is thus that the article is positioned in direct dialog with the modern literature about emergency powers and the “exception.”

March 14, 2014 | Permalink | Comments (0)

CRL&P Daily Reads: Mar. 14, 2014

U.S. Civil Rights Commission holds hearing today on patient dumping.

Colorado appeals court holds marijuana law may be applied retroactively to challenge convictions of minor drug offenses.

Family files excessive force claim against police in 2012 death of man shot more than 10 times in the back. 

Judge lambastes EEOC for failing to fully investigate discrimination claim against retail jeweler.

Law school dean facing allegations he retaliated againt a professor who accused him of sexual harassment steps down.

March 14, 2014 | Permalink | Comments (0)

Thursday, March 13, 2014

"Responding to Shelby County: A Grand Election Bargain"

The title of this post comes from this recent paper by Professor Daniel Tokaji, the abstract of which states:

The immediate reaction to the Supreme Court’s decision in Shelby County v. Holder was predictably fast, furious, and fissured. Some lauded the decision as a long overdue recognition that things really have changed in the South since the bad old days of mass disenfranchisement, so effectively demolished by the Voting Rights Act of 1965 (VRA). Others lamented the Court’s unceremonious disposal of the civil rights movement’s “crown jewel.” While there is some truth in both perspectives, this article focuses on what both sides have largely missed. 

The article argues that Shelby County provides an opportunity for Congress to take constructive action to protect the vote for all eligible citizens. It proposes a Grand Election Bargain: federal legislation that would expand the opportunities for voter registration (a priority for Democrats) while requiring voter identification (a priority for Republicans) in federal elections. The approach suggested here is a necessary complement to the race-based remedies available under current law, one that would expand the right to vote more generally. It is a proposal for a Voting Rights Act that will address the problems of the current century rather than those of the last century. 

Despite the improvements over the years, significant gaps in registration and participation remain for some demographic groups – especially Latinos, Asian Americans, people of limited education and income, people with disabilities, and young people. Liberalized voter registration rules, particularly same-day registration can help include some of those most likely to be left out. The federal registration and identification rules proposed here would preempt contrary state laws in federal elections. This lies squarely within Congress’ power under the Elections Clause, as clarified by the Court’s decision in Arizona v. Inter Tribal Council of Arizona. 

Part I of the article briefly describes what Shelby County did, setting the stage for discussion of the Voting Rights Act’s actual and perceived effects on election administration. Part II assesses what the preclearance regime was doing before Shelby County, showing that Section 5 was mostly used to stop vote dilution, but did relatively little to stop the new vote denial. Part III examines the evidence regarding who votes and who doesn’t, as well as the causes for low registration and participation among some groups. Part IV proposes a Grand Election Bargain that would expand voter registration and voter identification in federal elections, providing consistent national rules that would trump contrary state and local laws, while moving us closer to the ideal of including all eligible voters in the electorate.

March 13, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

CRL&P Daily Reads: Mar. 13, 2014

New Hampshire House votes to repeal of death penalty.

Federal judge blocks NSA's plan to destroy telephone metadata pending resolution of challenges to collection program's constitutionality.

Mexican woman's lawsuit against Mississippi's welfare agency alleging it unconstitutionally deprived her of her newborn baby will proceed, says federal judge; couple allege Humboldt County Fair Association retaliated against them for failure to censor paper run by wife.

Couple urge federal judge to require Utah to recognize same-sex marriages performed while state's ban was lifted last December.

Holder backs shortening sentences for certain nonviolent drug traffickers.

March 13, 2014 | Permalink | Comments (0)

Wednesday, March 12, 2014

"Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk'"

The title of this post comes from this essay by Professor Kent Greenawalt, the abstract of which states:

The essay focuses on a particular issue about “stop and frisk” raised by the concern about concentration on young men in racial minorities. Although reference is made to the recent decision in Floyd v. City of New York, my focus is not on what has actually happened in New York and elsewhere, but whether, if there is substantial evidence that a higher percentage of members of a group commit certain kinds of crimes more than members of other groups, it is appropriate for police to stop partly on the basis of whether movements that are somewhat suspicious are made by members of that group, or whether that constitutes inappropriate discrimination.

Using an imagined private analogy and made up statistics about levels of criminal behavior and innocence among different groups, I contend that given the level of probability needed for a stop, i.e., “reasonable suspicion,” the likelihood that a group characteristic could figure importantly in the necessary probability is somewhat higher than when a more demanding standard such as “probable cause” is in play. In respect to a person’s gender and age, I suggest that use of that in applying a probability standard is really uncontroversial. But race is different. Both because of the risk of nonobjective appraisals, based partly on prejudices or implicit cultural assumptions, and because of the harmful negative message conveyed to members of minorities subject to stops, I conclude that police should not explicitly use race as a factor (unless they are looking for a person already identified by his race). I also believe this problem is serious enough so that such use should be viewed as a constitutional violation.

March 12, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

CRL&P Daily Reads: Mar. 12, 2014

Transgender woman alleges discrimination by CrossFit for refusing to let her compete in the female division of its annual competition; skid row community organizer alleges malicious prosecution by City of Los Angeles following failed prosecution for misdemeanor assault and battery; civil rights lawsuit alleging Wisconsin mayor and other city officials conspired to drive-out minority owned bars could prove costly for the city's taxpayers; jury awards man serving life sentence nearly a half-million dollars in civil rights suit against guard for 2002 beating.

Federal judge finds professor's termination for discussing his religious beliefs did not violate his First Amendment rights.

Fourth Circuit expedites challenge to Virginia's same-sex marriage ban.

Housing advocates allege discrimination by U.S. Bank for failure to  maintain foreclosed property in minority neighborhoods.

County board of registrars' offices in Alabama this week started giving free voter-ID cards to anyone able provide proper documentation.

March 12, 2014 | Permalink | Comments (0)

Tuesday, March 11, 2014

CRL&P Daily Reads: Mar. 11, 2014

Snowden has no regrets

Gun owners ask SCOTUS to block California ban on magazines with more than 10 rounds of ammunition; Sharpton leads march calling on Florida legislature to reform 'stand your ground' law.

SCOTUS won't consider case of 'I [Heart] Boobies' braclets.

Ohio AG accepts language of 'Voters Bill of Rights' petition.

Report by Columbia Law School's Human Rights Clinic says poor lack access to adequate legal services.

March 11, 2014 | Permalink | Comments (0)

"Story of Birth and Funeral: Rhetorical Analysis of Windsor and Shelby County"

The title of this post comes from the title of this recent paper, the abstract of which states:

In 2013, the Supreme Court ruled in two major cases, namely, U.S. v. Windsor and Shelby County v. Holder. The Court’s rulings prompted inquiries and criticisms on how the Court could signal the birth of marriage equality while marking the end of racial equality at the same time. This paper compares these two cases by introducing another dimension that has possibility of making them more harmonious that what they first appear to be. Focusing on the narrative frameworks employed by the Court in the two cases, this paper conducts a rhetorical analysis to discern how these cases were narrated by the Court. It argues that the Supreme Court employed personal narrative in Windsor. In analyzing this personal narrative, this paper focuses on three rhetorical devices: establishing an individual protagonist and increasing persuasiveness through transportation into the story, exploring emotions associated with the genre of tragic love story, and triggering sympathy through introduction of children in the opinion. This paper also argues that the Supreme Court employed institutional narrative in Shelby. The analysis on institutional narrative centers around three techniques: detaching personal connection through omission of the story of minority voters and establishing the “state” as the protagonist of the story, increasing persuasiveness by conceding to past discrimination before introducing state-level data to support the outcome of the case, and increasing legitimacy through the reference to federalism and its tradition.

March 11, 2014 | Permalink | Comments (0)

Sunday, March 9, 2014

"The First Amendment's Public Forum"

The title of this post comes from this intriguing paper by Professor John D. Inazu, the abstract of which states:

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society. The resulting mosaic is neither thematic nor tidy, but it is in at least one sense, beautiful: the deductions, like the city park, enact the aspirations of a democratic polity. Organizations and ideas wither or thrive not by government fiat but based on the “values and choices of private givers.” 

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. Between these poles lie numerous other governmental arrangements with similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few. In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. That distortion is partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions. The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. This essay suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine. And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.

March 9, 2014 | Permalink | Comments (0)

Saturday, March 8, 2014

"A Signal or a Silo? Title VII's Unexpected Hegemony"

The title of this post comes from this upcoming paper by Professor Sophia Z. Lee, the abstract of which states:

Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII and its implementing agency, the Equal Employment Opportunity Commission. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively with employers. This chapter explains how these impulses played out during Title VII’s uncertain first fifteen years as advocates, legislators, administrators, and workers pursued a more powerful Title VII on the one hand and one more harmonized with labor rights on the other. Empowering Title VII via dissemination proved more costly and less effective than its proponents expected; achieving a more harmonious regime was more complicated than is currently thought. This history provides a cautionary tale to those today who seek to reinvigorate labor rights by incorporating them into Title VII.

March 8, 2014 in Civil Rights Act | Permalink | Comments (0)

CRL&P Daily Reads: Mar. 8, 2014

Housing advocacy group alleges Deutsche Bank discriminated against African Americans and Latinos in maintenance policy for foreclosed homes; former inmate files civil rights lawsuit alleging repeated beatings by former jailers; jury awards $3.5 million to three OC policeman claiming to have been passed over because they're Latino; and, settlement reached in case of nursing home that accommodated discriminatory request of patient by reassigning African-American nurses and placing 'No Colored Nurses' sign in patient's unit.

Couples file challenge to Indiana's same-sex marriage ban.

Snowden says he brought his concerns regarding NSA's surveillance program to at least 10 officials prior to leaking classified documents; ACLU asks Second Circuit to hold NSA's collection of Americans' telephone records unconstitutional.

Sec. Husted says failure of Libertarian candidate's campaign workers to list the party as their employer on petitions disqualifies the candidate from appearing on Ohio's general election ballot.

Federal judges uphold California gun laws

New rules for Ohio jails established to reduce lawsuits by prisoners.

March 8, 2014 | Permalink | Comments (0)