Thursday, June 9, 2016
Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than ninety percent of those actions were filed pro se. Pro se prisoners frequently use — and in many federal districts are required to use — standardized complaint forms created by the federal judiciary. These standard forms first came into use in the 1970s at the recommendation of a committee of federal judges seeking to more effectively manage prison litigation and reduce its burdens on the federal courts. Although complaint forms have been around for nearly forty years and are now used in almost every federal district, no one, until now, has recognized the extent to which these forms actually diverge from or misrepresent the content of the law.
In this paper, we collect and analyze every form complaint used by the federal district courts. Our results indicate that, while form complaints can be helpful to pro se prisoners, many impose burdens that are inconsistent with governing law. First, many complaints require prisoners to plead facts that the law says they are not required to plead. Second, many complaints prohibit or discourage prisoners from pleading facts necessary to survive a motion to dismiss. Third, some complaints require plaintiffs to plead legal conclusions, using language that may confuse unsophisticated prisoners and cause them to make inadvertent but significant legal errors.
These flaws can impose serious consequences on prisoners, including unwarranted dismissal of their complaints. Prisoners are already uniquely marginalized in our legal system. They should not bear added pleading burdens not faced by other litigants. To address the concerns raised in our study, we provide a model form complaint that is compliant with the law and that attempts to reduce the hurdles prisoners face to filing a factually sufficient complaint.
...as an alleged invasion of his right to privacy. Here's a taste:
By a 3-0 vote, the 4th U.S. Circuit Court of Appeals said Adrian King could pursue claims that officials at Huttonsville Correctional Center illegally threatened him into consenting to the June 2013 surgery, or risk being segregated from other inmates and lose his eligibility for parole.
Circuit Judge Roger Gregory found “overwhelming evidence” that the intrusion was unreasonable, despite the asserted need by prison officials to police the security threat posed by inmates carrying contraband within their bodies.
“The interest in bodily integrity involves the most personal and deep-rooted expectations of privacy, and here, the nature of the surgery itself, surgery into King’s penis, counsels against reasonableness,” Gregory wrote for the Richmond, Virginia-based appeals court.
King had had the marbles implanted in and tattoos drawn on his penis in late 2008, prior to his incarceration, during a “body modification” craze.
Wednesday, June 8, 2016
Tomorrow, California will become the fifth state -- along with Montana, Oregon, Vermont and Washington -- to legalize the right of terminally ill patients to end their own lives. This AP report begins:
California on Thursday becomes the latest state to allow the terminally ill to legally choose to end their lives, raising worries among some people in the state’s large Latino and African-American communities that poor people with serious illnesses could be pressured to take lethal drugs as a cheaper option to long-term care.
California is far more diverse than the other states where the option is available — Washington, Vermont, Montana and Oregon, the first to adopt the law in 1997.
Of the 991 terminally ill people who have decided to take life-ending drugs in Oregon, most have been white, over 65 and well educated, according to a February report from the Oregon Health Authority.
This spring, the national right-to-die advocacy organization, Compassion & Choices, named Latina, African American and Filipina-American women to reach out to minority communities. The group also set up a bilingual hotline explaining the law and held meetings in largely Spanish-speaking areas such as California’s Central Valley...
California has more safeguards than other states. Before a doctor can prescribe lethal drugs, a patient 18 or older must make two oral and one written request. The law also requires a diagnosis that the person has less than six months to live and that the person can take the drugs without help from anyone.
Life-ending drugs will be covered under MediCal, the state’s public insurance plan, but it limits coverage of outpatient palliative care consultations unless the person has stage IV cancer.
A recent study by the Drug Policy Alliance found that African Americans and Latinos are disproportionately arrested for marijuana possession in California. Shortly after the release of the report, the California NAACP announced its support for Proposition 19, the ballot initiative that, if approved this November, would legalize marijuana in the state. Here are excerpts from CNN.com's report:
Police departments in California have made more than 60,000 marijuana possession arrests in 2008, three times more than in 1990, according to a recent study released by the Drug Policy Alliance an organization that says it promotes policies to end the war on drugs. Although blacks and Latinos make up less than 44 percent of the state's population, together both ethnic groups constitute up to 56 percent of arrests that are made for marijuana possession in California, according to the study. Furthermore, the U.S. Department of Health and Human Services has found that African-Americans use marijuana at lower rates than white Americans across the country.
The study said arrests in California are "racially-biased" and have led to a "system-wide phenomenon, occurring in every county and nearly every police department in California, and elsewhere."
Hilary O. Shelton, vice president of advocacy for the NAACP, said these numbers make it a civil rights issue.
"We are usually conservative in terms of the issues that we support, but disproportionate prosecution of [African-Americans for] drug-related offenses for marijuana has called us to fight for decriminalization in our community."
"If the law on drug possession was being enforced correctly, then the number of arrests and prosecutions and prison sentences would be proportionate to our society across the board," Shelton said.
"Sadly, that's not the picture."
But some African-Americans don't think the solution to the problem is to legalize marijuana.
Bishop Ron Allen, an outspoken leader of the International Faith-Based Coalition and member of the NAACP, is outraged by the endorsement.
He, along with 24 other faith- and activist-based organizations held a press conference in California Wednesday, calling for the resignation of Alice Huffman, claiming the California NAACP's endorsement of marijuana legislation is selling out the African-American community.
"If you think you are a civil rights leader, you should know better than anyone not to open the door to laws that will poison our community," Allen said.
Big data and data analytics (“big data”) can produce many social and economic benefits. But they can also generate privacy injuries and harmful discrimination. The governance of big data should, accordingly, focus on balancing benefits and risks. Where the potential benefits outweigh the risks, the big data application should be seen as appropriate. Where the risks outweigh the benefits, it should be seen as inappropriate. This provides a framework for sorting beneficial from harmful uses of big data, and so for figuring out which big data applications are in bounds, and which are not.
Others have advocated a risk-benefit approach to big data. However, the scholarly literature has not yet identified a legal basis on which to ground such an approach. This Article does. It argues that the FTC could use its Section 5 “unfairness authority” to draw the line between those big data uses that are appropriate and fair, and those that are inappropriate and unfair. In this way, it could provide guidance to big data businesses that are struggling to find a coherent, legally-grounded framework for making such calls. It could also take an important step towards protecting privacy and civil rights in the era of big data.
This raises an important legal question. Does the Commission’s unfairness authority encompass the governance of big data? Or does this task lie outside the scope of the FTC's statutory jurisdiction? Here, the essay offers an original reading of FTC v. Wyndham Worldwide Corp., a district court decision (on appeal at the time of this writing) that provides the latest word on the scope of the FTC’s unfairness jurisdiction. It shows that the Wyndham decision both supports the FTC’s authority to govern big data practices and provides guidance on how the Commission could go about doing so.
Tuesday, June 7, 2016
This article demonstrates the close connection between student speech that the First Amendment protects (even for students in grades K-12) and penalties school authorities impose on speech they find controversial or offensive. The penalties include deprivation of instructional time – suspension, expulsion and assignment to alternative school for troubled and disruptive youth. The link between the exercise of First Amendment rights and school discipline that starts young people on the school-to-prison pipeline is even more dramatic when on-site police officers arrest students or schools refer them to the juvenile justice system for violating a school speech code – rules imposed by the school that may restrict expression the First Amendment protects in- and out- of school. Using national and local survey data that show the majority of students suspended from school are charged with nothing more than a code violation, often involving protected speech (such as cursing or criticizing a teacher), as well as reported cases about violations of student speech rights decided long after students had lost educational time, and the stipulations in the prolonged civil rights litigation in Meridian, Mississippi linking race, speech, in-school arrests and incarceration, the article demonstrates a nexus between the exercise of constitutional rights and the school-to-prison pipeline. The article also discusses penalties imposed for off-campus speech by students, especially online expression. The author argues that protected speech should never result in penalties that lead to adjudication as a delinquent or confinement in a juvenile facility.
Monday, June 6, 2016
The AP's Jim Suhr has this report, which begins:
Michael Brown's family will get unredacted transcripts of grand jury proceedings involving the officer who killed the 18-year-old, a federal judge said Monday, marking the first time someone other than a prosecutor or grand juror will see uncensored details of the secret proceedings.
U.S. District Judge E. Richard Webber's protective order spelling out terms of the release requires St. Louis County prosecutors to hand over the testimony and the names of grand jury witnesses to attorneys for Brown's family, which is pressing a wrongful-death lawsuit. The order bars the attorneys designated to see the grand jury items from making any of them public, lest they be jailed for contempt.
The grand jury's November 2014 decision to not indict white Ferguson police officer Darren Wilson for shooting Brown, who was black and unarmed, rekindled often-violent protests that immediately followed Brown's death three months earlier. Wilson later resigned.
St. Louis County Prosecuting Attorney Robert McCulloch publicly released heavily redacted transcripts of the grand jury testimony, but he refused to release the names of witnesses, who were promised anonymity.
An attorney for McCulloch's office, Linda Wasserman, had opposed the disclosure request and later sought to limit it. In a recent court filing, she cited "continued grave concerns, in light of the lives at stake, regarding the efficacy of a protective order in controlling the short-term and long-term threat of personal harm to innocent persons called as witnesses in this case."
Monday's order also calls for authorities to release unredacted transcripts of witness interviews, written statements obtained by St. Louis County police, audio-record transcripts and autopsy and scene photographs not previously disclosed.
“I did my time; I did everything I was supposed to do. I paid the courts, I paid the fines and got my life back on track..."
...explains one woman who hopes to vote this November thanks to an executive order by Virginia Gov. Terry McAuliffe (D) restoring voting rights to former felons. However, Virginia Republicans recently challenged the governor's authority to issue the order. As The New York Times's Sheryl Gay Stolberg explains:
In issuing his sweeping order, Mr. McAuliffe made expansive use of his clemency powers to effectively nullify a Civil War-era provision in the State Constitution that barred convicted felons from voting for life — one of the harshest disenfranchisement policies in the nation. In an interview previewing his announcement, Mr. McAuliffe said his legal authority to do so is “ironclad.” But Republicans say the governor lacks blanket authority to restore voting rights and must instead do so on a case-by-case basis — as his predecessors in both parties have done.
“He’s really put a stick in the legislature’s eye,” said Speaker William J. Howell of the Virginia House of Delegates, the lead plaintiff in the Republican suit [challenging the governor's order]. He said the suit “has nothing to do with” the registration drive, and rejected Democrats’ accusations that Republicans were trying to suppress the black vote: “The governor has whipped them up.”
Still, race is a powerful subtext; African-Americans make up 19 percent of Virginia’s population, but 45 percent of those covered by the governor’s order. The Sentencing Project, a Washington research organization, says one in five African-Americans in Virginia cannot vote because of felony convictions.
“When you look at the fact that of the individuals who are most impacted by this, 45 percent of them are African-American, what conclusion can we draw?” asked State Senator Mamie Locke, chairwoman of the Virginia Black Legislative Caucus, which held “Voices for The Vote” rallies on Saturday in three Virginia cities.
Organizers of the registration drive say they would like to sign up 25,000 new voters in time to cast ballots on Election Day.
“That could make a difference,” said Bob Holsworth, a longtime political analyst in Virginia, noting that some state races in Virginia had been decided by relatively slim margins, of 5,000 or 6,000 votes.
As it stands, Iowa, Florida and Kentucky are the only other states that deny voting rights to felons for life.
The editorial, titled To Stop Bad Prosecutors, Call the Feds, begins:
Prosecutors are the most powerful players in the American criminal justice system. Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.
So why is it so hard to keep them from breaking the law or violating the Constitution?
The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions. It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights. There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.
Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.” Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence. Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases...
This is precisely what happened to Kerry Max Cook, a man who has spent 40 years proclaiming his innocence of the brutal 1977 murder of Linda Jo Edwards. Questions as to his guilt abounded, but one of the most troubling aspects of the case was the prosecutor's decision to withhold an eyewitness account that identified the victim's lover--and not Cook--as leaving the crime scene around the time of the victim's death. In this extensive piece (which is well worth reading), The Texas Monthly's Michael Hall writes:
Earlier this year, the dramatic case got even more drama. In January Udashen [one of Cook's appellate attorneys] filed a motion for the Smith County DA’s office to provide any exculpatory evidence it hadn’t provided before... They found several pieces of evidence they didn’t know about—and one was explosive.
It was a police report filed in 1991 by Tyler PD detective Eric Liptak. Rudolph [the only eyewitness in the case], Liptak wrote, told police she “thought” the man in the apartment was Mayfield [the victim's former lover]. But Liptak went on: “Ms. Rudolph did later state that [t]he man she saw was Mr. Mayfield but that was after extensive questioning by Mr. Thompson, the lead prosecutor in the case.” In other words, according to the report, the lead prosecutor knew that Rudolph originally identified Mayfield as the man in the apartment. But prosecutors never gave Liptak’s report to the defense, as they are required to do. They never corrected Rudolph on the stand when she said she’d never identified Mayfield, nor did they correct her when she identified Cook at the trial as the man she saw in Edwards’ room.
Fortunately for Cook, the newly elected D.A. announced today that he was dropping the charges against Cook.
When it convenes later this month, will the Supreme Court grant David Brown similar reprieve? As The Times explains:
This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard. Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway. Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.
This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing. But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.
Regardless of the Court's decision, prosecutors will remain relatively immune from punishment unless steps are taken to curb their authority.
State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear. Professional ethics boards rarely discipline them. And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of. Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.
This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.
Sunday, June 5, 2016
Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this article calls “panvasive”). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors — as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection — they should have to engage in notice-and-comment rule-making or a similar democratically-oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented even-handedly, both in each instance and as they are distributed within the agency’s jurisdiction. Further, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.
Wednesday, June 1, 2016
The New York Times's Matt Furber and Richard Perez-Pena have this report, which states in part:
Minneapolis police officers will not face federal charges in the fatal shooting of a young black man in November, an episode that roiled the city with days of demonstrations, federal officials said Wednesday, citing evidence that seemed to bolster the officers’ account of what happened.
Most crucially, the evidence suggested that Jamar Clark, 24, “was not, in fact, handcuffed when he was shot,” despite claims by eyewitnesses that he had been, Andrew M. Luger, the United States attorney for Minnesota, said at a news conference. And he pointed to evidence that could support the officers’ claim that Mr. Clark had been grabbing one officer’s gun.
To prove that the officers had violated Mr. Clark’s civil rights, “the government would have had to establish beyond a reasonable doubt that the use of force was objectively unreasonable,” and that the officers had acted “with the specific intent to do something that the law forbids,” Mr. Luger said. After a lengthy investigation by his office, the F.B.I. and the Justice Department’s Civil Rights Division, he said, prosecutors could not make those claims.
“There are no winners here, and there’s no victory for anyone,” he said. “A young man has died, and it is a tragedy.”
Outside the F.B.I. office where officials announced the decision, a group of protesters, including members of Black Lives Matter, gathered to bitterly contest it...
The federal government’s conclusion largely confirms the findings of the Hennepin County Attorney’s Office, which reported on March 30 that Mr. Clark had not been handcuffed when he was shot, and that he had fought with an officer and grabbed his gun. The county attorney also declined to prosecute the officers.
... writes former President Jimmy Carter in The Washington Post. In "To curb prostitution, punish those who buy sex rather than those who sell it," Carter begins:
It is disturbing that some human rights and public health organizations are advocating the full legalization of the sex trade, including its most abusive aspects. I agree with Amnesty International, UNAIDS and other groups that say that those who sell sex acts should not be arrested or prosecuted, but I cannot support proposals to decriminalize buyers and pimps.
Some assert that this “profession” can be empowering and that legalizing and regulating all aspects of prostitution will mitigate the harm that accompanies it. But I cannot accept a policy prescription that codifies such a pernicious form of violence against women. Normalizing the act of buying sex also debases men by assuming that they are entitled to access women’s bodies for sexual gratification. If paying for sex is normalized, then every young boy will learn that women and girls are commodities to be bought and sold.
There is a much better policy option.
In my 2014 book “A Call to Action: Women, Religion, Violence and Power,” I described the approach known as the “Nordic model,” which is consistent with advancing human rights and healthy societies. Pioneered in Sweden and adopted most recently in Canada and France, this strategy involves decriminalizing prostituted women and offering them housing, job training and other services. Instead of penalizing the victims, however, the approach treats purchasing and profiting from sex acts as serious crimes. Another key component is public education about the inherent harms of prostitution for those whose bodies are sold.
In Sweden, demand for prostitution has fallen dramatically under this model. Conversely,Germany and New Zealand, which have legalized all aspects of prostitution, have seen an increase in sex trafficking and demand for sexual services.
Critics of the Nordic model assert that mature adults should be free to exchange money for sex. This argument ignores the power imbalance that defines the vast majority of sex-for-cash transactions, and it demeans the beauty of sexual relations when both parties are respected.
Sex between people who experience mutual enjoyment is a wonderful part of life. But when one party has power over another to demand sexual access, mutuality is extinguished, and the act becomes an expression of domination. As author and prostitution survivor Rachel Moran explained in her book, “Paid For,” once money has exchanged hands, a woman must deliver whatever service the customer demands.
People with disabilities are the ticking time bomb of the electorate. An estimated thirty to thirty-five percent of all voters in the next twenty-five years will need some form of accommodation. Despite the significant and growing population of voters with disabilities, they do not vote in proportion to their numbers. We can consider voters with disabilities as “the canaries in the coal mine,” the people who are an advanced warning of the structural difficulties in voting not just for themselves, but also for the system as a whole. Solving problems in voting for people with disabilities will strengthen the entire system and will help improve the voting process for everyone, especially people from disempowered communities. Furthermore, although election law scholars have largely ignored the unique voting problems confronting voters with disabilities, virtually every major voting controversy in contemporary American electoral politics directly implicates issues of disability.
This Article examines the state of disability access to voting in the lead-up to the 2016 election, revealing an electoral problem that has been lurking in the background for far too long. Current debates about access to voting and voter restrictions often ignore the current legal landscape’s disparate effect on those with disabilities. The insights in this Article offer another angle of intervention towards ameliorating the problems in the voting process for disempowered individuals. This call for reform is timely in light of the upcoming presidential election. We tend to think of problems of voting and disability, if we think of them at all, as classic issues of physical access. But in fact, the contemporary problems with respect to voting that preoccupy election lawyers are also heavily implicated by disability as well and moreover are central to the inquiry. This Article reveals those hidden disability implications of our contemporary election law problems.
The U.S. Fourth Circuit Court of Appeals yesterday refused a Virginia school board's request to reconsider the court's decision granting transgender students access to the restrooms that correspond with their gender identities. As Reuters' Ian Simpson reports:
The Gloucester County School Board had asked the full U.S. Fourth Circuit Court of Appeals to review the decision by a three-judge panel last month in favor of Gavin Grimm, a student at the local high school.
The request was denied since none of court's 15 judges asked for a vote on the rehearing, the court said. The case has been seen as impacting the national bathroom wars between gay rights activists and social conservatives.
Grimm had filed suit after being barred from using the boys’ bathroom at his school. Grimm was born a female but identifies as a male.
“Now that the Fourth Circuit’s decision is final, I hope my school board will finally do the right thing and let me go back to using the boys’ restroom again,” Grimm said in a statement.
The April ruling sent the widely watched case back to a lower court to re-evaluate Grimm's request for a court order. The ruling was the first by an appeals court finding protections for transgender students under the 1972 Title IX Act, which bars sex-based discrimination by schools receiving federal funding.
President Barack Obama's administration filed a brief in support of Grimm.
Friday, May 20, 2016
SCOTUS ruled yesterday that convicted criminals' Sixth Amendment right to a speedy trial is not violated by lengthy sentencing delays. As The New York Times's Adam Liptak reports:
The case, Betterman v. Montana, No. 14-1457, concerned Brandon T. Betterman, who pleaded guilty to jumping bail in the spring of 2012. He spent the next 14 months in a Montana jail waiting to hear what his sentence would be.
He complained to the judge, saying the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by the uncertainty.” In the summer of 2013, the judge finally sentenced him to seven years in prison, with four years suspended.
The long delay, Mr. Betterman said, had violated his Sixth Amendment right to a speedy trial.
Justice Ruth Bader Ginsburg, writing for the court, rejected the argument. There is a difference between trials, which adjudicate guilt, and sentencings, which determine punishment, she wrote.
“As a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction,” Justice Ginsburg said...
Nor did it matter, she wrote, that a vast majority of criminal prosecutions these days end with guilty pleas rather than trials, making sentencing proceedings more important. That “modern reality,” she wrote, “does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause.”
Notably, Justice Ginsburg added that sentencing delays might be challenged as violations of due process. However, because Betterman did not make such an argument, the Court declined to rule on the issue.
The full opinion is available here.
Tuesday, May 10, 2016
This article surveys three previously unconnected areas of analysis related to internal discipline in U.S. prisons: implicit bias, prison disciplinary rules, and judicial deference to correctional decisions. It traces the possible connections from the statistical evidence on the significance of race to the potential impact of race on prison disciplinary decisions and to the legal validation of these racial norms through judicial deference. In so doing, this Article hopes to begin a dialogue that identifies several entry points for discussing the ramifications of race within correctional facilities.
Part I of this Article discusses how implicit bias could affect prison decision-making. Given the lack of modern psychological studies of correctional officials and implicit bias, this section draws on studies of implicit bias in the population at large as well as implicit bias in the criminal justice system. Part II discusses how courts may facilitate the influence of implicit race bias by requiring discriminatory intent, even in penal facilities where circumstances would favor allowing implicit bias claims. Part III examines the legal standards governing judicial review of prison disciplinary rules and decisions and concludes that judicial deference may validate the improper influence of race on prison-staff decision-making.
Monday, May 9, 2016
Gov. Pat McCrory (R-NC) filed a lawsuit in federal court today requesting clarification as to whether the anti-transgender law he signed earlier this year violates federal civil rights law, as DOJ claims. The Charlotte Observer's Michael Gordon reports:
The governor has a Monday deadline to respond to the Justice Department’s discrimination claim. Instead, McCrory’s attorneys sued the U.S. Justice Department in federal court, seeking a court to overturn federal prosecutor’s assertion last week that HB2 violates Title IX of the Civil Rights Act as well as the Violence Against Women Act...
In a statement issued Monday following the filing of his lawsuit, McCrory, who’s in a tough re-election fight, accused the administration of President Barack Obama of making up federal law in finding HB2 discriminatory. He has said that HB2 is a commonsense law makes bathrooms safer for women and children
“The Obama administration is bypassing Congress by attempting to rewrite the law and set restroom policies for public and private employers across the country, not just North Carolina,” the Charlotte Republican said. “This is now a national issue that applies to every state and it needs to be resolved at the federal level. They are now telling every government agency and every company that employs more than 15 people that men should be allowed to use a women’s locker room, restroom or shower facility.”
Known as H.B. 2, the law seeks to preempt a City of Charlotte ordinance allowing transgender individuals to use the bathroom corresponding to their gender identity. H.B. 2 would require transgender individuals to use the bathroom corresponding to the sex indicated on their birth certificates.
Last week, DOJ sent the governor a letter stating that implementation of H.B. 2 could cost the state billions in federal funding.
The law has already cost the state jobs.
- "Obama plans new push for transgender rights in schools"
- DOJ tells N.C. governor anti-transgender bill could cost state billions in federal education funding
Saturday, May 7, 2016
When DOJ sent a letter to North Carolina Gov. Pat McCrory informing him that the state's anti-transgender law could cost the state billions in federal education funding, some experts saw the move--in conjunction with the EEOC's issuance of a fact sheet confirming that it's a violation of federal civil rights law to deny a transgender individual access to the restroom that corresponds with his/her gender identity--as a more focused effort by the Obama administration to secure greater protections for transgender people. The argument proved poignant. As Caitlin Emma reports in this recent Politico article from which the title of this post comes:
The divisive and politically combustible issue of bathroom access for transgender individuals is about to become further inflamed, as the Obama administration is expected in coming weeks to aggressively reinforce its position that transgender student rights are fully protected under federal law, sources told POLITICO.
With the Justice Department already locking horns with North Carolina over the state’s so-called bathroom bill, the administration plans to reaffirm its view that robust protections for transgender students are within the existing scope of Title IX, a federal law that prohibits sex-based discrimination in federally funded education programs and activities. Multiple agencies are expected to be involved.
It’s a step LGBT advocates have wanted the federal government to take for years. The legal protections include providing transgender students with not just access to bathrooms and locker rooms that align with their gender identity but also affording them protections from bullying, harassment and sexual violence, and a right to privacy concerning their transgender status and transition...
Advocates and legal experts say that Title IX’s lack of clarity could get wrapped up with a host of other legal issues, like the constitutional right to privacy and varying policies at every level of government, and result in transgender rights landing in some capacity before the nation’s highest court — just like what happened in the lead-up to the Supreme Court’s historic gay marriage verdict.
New guidance on Title IX represents a natural outgrowth of the administration’s aggressive agenda on gender equity and civil rights. In April 2014, guidance issued by the Education Department on sexual violence explicitly mentioned that transgender students are protected under Title IX. LGBT advocates saw it as an important moment for the transgender community, but have wanted the administration to go even further in clarifying the law.
Additional guidance will likely raise the ire of many Republicans in Congress, however. Some lawmakers, like Senate HELP Chairman Lamar Alexander (R-Tenn.), have already slammed the administration for federal overreach...
Lower courts have been divided on the issue. A federal district court last year ruled against Gavin Grimm, a transgender male student in Virginia whose attorneys argued that it was his right under Title IX to use the boy’s bathroom at his high school. A federal appeals court overturned that district court’s ruling earlier this year, representing a major legal victory for Grimm and LGBT advocates. The school board is appealing the ruling.
While the appellate court’s decision was a victory, it didn’t explicitly say that the Obama administration’s interpretation of Title IX is the right one. The two-judge majority came close, however, saying the lower court should have deferred to the administration’s guidance on the issue...
If other federal appellate courts show they’re divided, it will likely catch the Supreme Court’s attention, said David Cohen, a law professor at Drexel University.
For more on the battle over North Carolina's law, see here.
Friday, May 6, 2016
This question was inspired by this Atlantic article by Juleyka Lantigua-Williams, titled When a Classmate Is a Former Inmate, discussing how institutions of higher learning have created barriers to education for people with criminal backgrounds. While administrators' concern for their campuses' safety is commendable, some university policies do not appear to serve the purpose for which they were intended--and, in fact, may not even address an actual threat.
These days, American colleges are eager to boast about their number of women enrollees, their percentage of ethnic minorities, even their ratio of low-income students. They’re very proud of their inclusiveness and outreach. But many colleges are mum when it comes to the students on their campuses with criminal records.
To be fair, it’s a very delicate issue, one that requires reassuring students and parents that safety has not been compromised while also ensuring that some students with records are not singled out or treated differently. Finding that balance has proved elusive for some colleges, but others have successfully untangled the complexities created by this increasingly common phenomenon. At hundreds of colleges, students have to disclose any criminal history during the admissions process and may be prescreened by a special committee... At some schools, a formerly incarcerated student’s movements on campus and his or her access to facilities may be restricted. At a number of colleges and universities, students who have committed certain crimes may be jointly monitored by campus authorities and state officials. The measures are set up based on state requirements, school policy, and the institution’s comfort level.
But, in some instances, there are situations that are entirely out of a school’s control. Students with criminal records who want to apply for certain professional programs often hit dead-ends. “People are not rejected solely based on having a criminal record but can end up being excluded from certain academic programs that do not allow those with criminal histories to work in the field,” said Jason Ebbeling, executive director of the Student Success Center at Connecticut State Colleges & Universities. Due to licensure requirements or clinical-rotation guidelines, future teachers, nurses, and others who might work in sensitive areas are not allowed to have past criminal histories.
“Why is someone in a classroom with a record more dangerous than someone sitting next to me in a movie theater or a restaurant?” asked Barmak Nassirian during my conversation with him. Nassirian has worked in higher education for 25 years and is the director of policy analysis at the American Association of State Colleges and Universities. “People do have a responsibility for maintaining safe campuses, I don’t dismiss that.” But he fervently opposes asking students to divulge the information, considering it as part of admissions, and subsequently monitoring students once on campus. “We essentially condemn people to a life of underemployment and poverty if we deny them the one medicine that actually cures criminal behavior: education.”...
College administrators, according to several of the experts I spoke to, try to put in place as many mechanisms and safety precautions as possible to reinforce how safe their campuses are, especially for the peace of mind of prospective families. And yet, there are no statistically valid relationships between asking about criminal histories, the ratio of such students on campus, and the incidences of campus crime. One glaring example of this is sexual assault, one of the most common campus crimes...
Educators want to welcome and serve qualified students. But they are also charged with maintaining safe and conducive atmospheres for learning. And so, for the student with a criminal background who wants an education, it can seem like there is no easy way around having a record—stigmatization now or dismissal later.
One of the leading legal issues decided by the Supreme Court each term, as a proportion of its total docket, is the application of the Fourth Amendment. Despite the extensive amount of attention that the Court’s Fourth Amendment jurisprudence receives in legal scholarship, there has been scant empirical research about how modern Justices have voted in Fourth Amendment cases. This article offers several empirical analyses of the 173 cases in which the Supreme Court addressed Fourth Amendment issues between 1982 and 2015. The analyses show different voting patterns among the Justices depending upon the posture of the case and the nature of the relief sought by the litigants raising Fourth Amendment claims.
The key findings are: (1) the overwhelming majority of Fourth Amendment litigants in the Supreme Court were criminal defendants rather than civil rights plaintiffs, and the overwhelming majority of Fourth Amendment issues addressed by the Court were substantive in nature (i.e., whether the Fourth Amendment had been violated) rather than remedial in nature (e.g., whether, in a criminal prosecution, suppression of incriminating evidence was an appropriate remedy for an unconstitutional search or seizure); (2) Fourth Amendment claims succeeded in slightly less than one in four plenary-review cases; (3) Fourth Amendment litigants were more much likely to succeed concerning substantive issues than remedial issues; (4) civil rights plaintiffs were slightly more likely to succeed than criminal defendants; (5) individual Justices generally voted in Fourth Amendment cases in a manner that reflected their overall ideological dispositions, yet Justices Breyer, Scalia, and Blackmun bucked this trend, resulting in more ideologically mixed voting blocs in Fourth Amendment cases than in several other divisive areas of the Court’s docket, such as abortion rights or voting rights; (6) the Court has granted more certiorari petitions filed by the government than petitions filed by Fourth Amendment litigants, and is much more likely to rule against a Fourth Amendment litigant when the Court has granted the government’s petition than when it has granted a Fourth Amendment litigant’s petition; and (7) the Court’s per curiam cases addressing Fourth Amendment issues generally resembled the Court’s plenary-review cases with respect to the nature of the litigants and the nature of the issues addressed, although the Court always has ruled in favor of the petitioners, whether the government or Fourth Amendment litigants, in its per curiam Fourth Amendment decisions.
DOJ tells N.C. governor anti-transgender bill could cost state billions in federal education funding
On Wednesday, DOJ sent a letter to Gov. Pat McCrory (R-NC) informing him that the anti-transgender law he recently signed violates the Civil Rights Act. The state must confirm by Monday that it will not comply with the law lest it face losing billions in education funding for state schools.
Known as H.B. 2, the bill pre-empted a Charlotte city anti-discrimination ordinance allowing transgender individuals to use the restrooms that conform with their gender identity. Apparently overwhelmed by hysteria and fear, North Carolinian conservatives passed H.B. 2 requiring people to use the restrooms that correspond with the sex identified on their birth certificate--signed by Gov. McCrory, of course.
The Charlotte Observer's Jim Morrill had this extensive report, which states in part:
The letter says HB2, which pre-empted Charlotte’s anti-discrimination ordinance, violates Title IX [of the Civil Rights Act], which bars discrimination in education based on sex, and Title VII of the Civil Rights Act, which bans employment discrimination.
If the finding is upheld, North Carolina could lose federal education funding. During the current school year, state public schools received $861 million. In 2014-2015, the University of North Carolina system got $1.4 billion...
The Justice Department letter came two days after the Equal Employment Opportunity Commission posted a fact sheet reiterating its stance that it’s a civil rights violation to deny transgender employees access to a bathroom based on gender identity.
That fact sheet refers to a 2015 decision in which the EEOC ruled that a civilian transgender woman working for the Army had been discriminated against when she was banned from using the common women’s restroom and forced to use a single bathroom.
Carl Tobias, a University of Richmond law professor who has followed the HB2 legal issues, said the Justice Department letter was similar to one sent by the federal Education Department in the case of the Virginia transgender teen battling a bathroom ban in the Gloucester County school system.
“They might all be coordinating the federal response,” Tobias said...
In the Justice Department letter, Vanita Gupta, the Justice Department’s top civil rights lawyer, said, “HB 2 … is facially discriminatory against transgender employees on the basis of sex because it treats transgender employees, whose gender identity does not match their biological sex, as defined by HB2, differently from similarly situated non transgender employees.”
She went on to say the department “concluded that … the state is engaged in a pattern or practice of resistance to the full enjoyment of Title VII rights by employees of public agencies…”
Saturday, April 30, 2016
Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law. First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments. Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.
In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications. Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.
Wednesday, April 27, 2016
The Sacramento Bee's Alexei Koseff reports:
Despite impassioned pleas by supporters to reverse a policy they argue has disproportionately hurt minorities, legislation to repeal sentencing enhancements for certain drug crimes fell short in the California Senate on Monday.
Following a debate over whether it would be a boon to drug dealers, Senate Bill 966 failed on an 18-16 vote, three votes short of a 21-vote majority. Three members of the majority Democratic caucus joined Republicans in opposition and another five abstained.
Under current California law, someone convicted for the sale, possession for sale, distribution or transportation of drugs such as cocaine, heroin, methamphetamine and PCP receives an additional three years on their sentence for each prior conviction for one of those crimes.
Sen. Holly Mitchell, D-Los Angeles, said her bill sought to address a practice left over from the War on Drugs that has been wielded most harshly against blacks and Latinos, filling up jails while failing to reduce the availability of drugs. She said the ambiguous definition of “possession for sale” has allowed prosecutors wide discretion on who they target for mandatory minimum sentences.
“There should be no double jeopardy,” she said. “If you served your time once for a prior offense, that should be adequate.”
But several Republicans expressed concern that it would embolden drug dealers and make their communities less safe by allowing people out of jail sooner.
“It treats the trafficker exactly as the individual convicted of basically their first offense,” said Sen. Jeff Stone, R-Temecula. “Let’s hold people accountable for their crimes.”
SB 966 was granted reconsideration, and Mitchell said she plans to take it up again. She expressed disappointed that the debate missed her point and focused too much on drug cartels, even though sentencing enhancements for weight and volume would still allow authorities to purse harsher penalties for large-scale traffickers.
“That image and fear is out of step with who is locked up,” she said.
Tuesday, April 26, 2016
This article argues that marriage equality should be understood to have three interrelated aspects. First, the two members of the couple should be entitled to a relationship of equality. Second, marital and non marital couples should be treated with equal dignity and respect so that access to important societal benefits are not dependent on a couple's marital status. Third, individuals should be able to enter into marriage on a nondiscriminatory basis. The article argues that the Obergefell decision is neither the result or, nor likely to lead to, improvement in the first aspect of marriage equality unless the courts recognize the importance of women having a more genuine choice whether to enter (or leave) this institution. The article concludes by suggesting that we could better attain genuine marriage equality by insisting that the freedom to CHOOSE to marry requires the state to develop a more neutral legal stance towards the institution of marriage.
The title of this post comes from this recent Washington Post article by Katie Zezima, which states in part:
Transgender rights have become an unlikely and heated issue in the presidential campaign after North Carolina enacted a law that, among other things, mandated that people use the restroom that corresponds to the gender on their birth certificate.
Cruz has seized on Trump’s assertion that the North Carolina law, which also rolled back other protections for gay, lesbian and transgender people, was unnecessary and bad for business — corporations including PayPal and Deutsche Bank scrapped plans to create jobs in the state after the legislation was enacted. Trump said there has been “little trouble” with allowing people to use the restroom they want, though he later said that states should have the power to enact their own laws. Trump also said he would let transgender reality-television star Caitlyn Jenner use the women’s restroom at his properties.
Ohio Gov. John Kasich said he probably wouldn’t have signed the North Carolina law, while both Democratic candidates have condemned it...
Cruz’s argument centers on the idea that allowing transgender women to use women’s restrooms would lead to deviants dressing up as women and preying on young girls. His campaign released an ad accusing Trump of capitulating to the “PC police” and asking viewers whether a grown man pretending to be a woman should use a restroom with your daughter or wife.
“Donald Trump thinks so,” the ad reads...
President Obama weighed in on the issue Friday from Britain, which issued a travel advisory warning residents about the North Carolina law and another enacted in Mississippi that allows businesses to refuse service to same-sex couples on religious grounds...
“I want everybody here in the United Kingdom to know that the people of North Carolina and Mississippi are wonderful people,” said Obama, who also took a question from a person who claims no gender. “I also think that the laws that have been passed there are wrong and should be overturned.”
Democratic candidates Hillary Clinton and Bernie Sanders have forcefully condemned the laws, and Sanders said he would overturn them if elected president...
At least 18 states and the District of Columbia have enacted laws barring discrimination against transgender people, according to the American Civil Liberties Union, and at least 200 cities and counties prohibit discrimination based on gender identity.
The Fourth Amendment’s protections against unreasonable searches and seizures have resulted in a massive body of appellate case law, including several hundreds of decisions by the Supreme Court and many thousands of decisions by the lower courts. The article, written by a former long-time public defender, provides a comprehensive and accessible survey of the Fourth Amendment as applied to recurring real-world situations in which a police officer or other governmental official engages in a search or seizure of property or a person. The article addresses both “substantive” and “remedial” aspects of the Fourth Amendment in both criminal prosecutions and civil rights lawsuits and also discusses the many occasions when the Fourth Amendment tolerates reasonable mistakes by police officers. The article concludes by noting the many hurdles that a criminal defendant or civil rights plaintiff must overcome in order to prove a constitutional violation under the Fourth Amendment and then obtain a concomitant remedy.
Monday, April 25, 2016
Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons.
Criminal justice debt is the primary source for this imprisonment. Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist at all stages of the criminal justice system from pre-conviction to parole. They include a wide variety of items, such as fees for electronic monitoring, probation, and room and board. Forty-three states even charge fees for an indigent’s “free” public defender. With expanding incarceration rates and contracting state budgets, monetary sanctions have continued to escalate. Additionally, many states and localities are now outsourcing prison, probation, monitoring, and collection services to private companies, who add additional fees and charges to the criminal justice debt burden of defendants.
The impact of criminal justice debt is especially severe on the poor and minorities as they are frequently assessed “poverty penalties” for interest, late fees, installment plans, and collection. Often they have to decide between paying criminal justice debt and buying family necessities. The deaths of Michael Brown in Ferguson, Eric Garner in New York, and Freddie Gray in Baltimore have prompted renewed calls for investigation of the adverse treatment of the poor and minorities in the criminal justice system. The fear of arrest, incarceration, and unfair treatment for those owing criminal justice debt creates distrust in the system.
In February 2015, a class action complaint was filed against the City of Ferguson asserting that the city’s jails had become a “modern debtors’ prison scheme” that had “devastated the City’s poor, trapping them for years in a cycle of increased fees, debts, extortion, and cruel jailings.” Moreover, the Department of Justice’s report on the Ferguson Police Department presents a scathing indictment of a system apparently more concerned with revenue collection than justice. Unfortunately, as illustrated by recent lawsuits and investigations alleging debtors’ prisons in Alabama, Colorado, Georgia, Louisiana, Mississippi, New Hampshire, Ohio, Oklahoma, Tennessee, Texas, and Washington, the abuses are not limited to Ferguson, Missouri.
The same concerns that led to the historical restrictions on debtors’ prisons have risen again with the growth of modern-day debtors’ prisons. Similar to the prisons in London during the eighteenth and nineteenth centuries that were criticized for using a privatized system that charged inmates for all services, including room and board, the current justice system improperly charges the poor. It is now time to revisit these concerns and implement effective restrictions to reduce the incidence of debtors’ prisons. To remedy these concerns, my Article proposes eliminating egregious sanctions, providing courts flexibility to base fines on earning levels, and establishing procedures to enforce restrictions against incarcerating those who are truly unable to pay their criminal justice debt.
Tamir Rice was killed when he was just 12 years old. He'd been playing outside a local recreation center in Cleveland with a plastic pellet gun he'd borrowed from a friend. He was black. The officer responding to the 911 call of a concerned citizen who'd seen Tamir playing with the gun was white. The officer shot Tamir within two seconds of opening the door of his patrol car.
Today, the city agreed to a $6 million settlement in the civil rights lawsuit resulting from Tamir's killing. As the AP reports:
An order filed in U.S. District Court in Cleveland said the city will pay out $3 million this year and $3 million the next. There was no admission of wrongdoing in the settlement...
The wrongful death suit filed by his family and estate against the city and officers and dispatchers who were involved alleged police acted recklessly when they confronted the boy on Nov. 22, 2014.
Video of the encounter shows a cruiser skidding to a stop and rookie patrolman Timothy Loehmann firing within two seconds of opening the car door. Tamir wasn't given first aid until about four minutes later, when an FBI agent trained as a paramedic arrived. The boy died the next day...
In the Rice family lawsuit, Samaria Rice had alleged that police failed to immediately provide first aid for her son and caused intentional infliction of emotional distress in how they treated her and her daughter after the shooting.
The officers had asked a judge to dismiss the lawsuit. Loehmann's attorney has said he bears a heavy burden and must live with what happened...
The officers had responded to a 911 call in which a man drinking a beer and waiting for a bus outside Cudell Recreation Center reported that a man was waving a gun and pointing it at people. The man told the call taker that the person holding the gun was likely a juvenile and the weapon probably wasn't real, but the call taker never passed that information to the dispatcher who gave Loehmann and Garmback the high-priority call.
The Guardian's Ed Pilkington reports that a local Missouri judge has ordered the state to disclose the names of two pharmacies that provided it with lethal injection drugs. The article states in part:
The judge ruled that the pharmacies involved could not be counted as part of the execution team, and thus offered protection from identification, and that as a result the state had to divulge the details of how it obtained pentobarbital for use in the death chamber...
The Guardian, joined by the Associated Press and three prominent local news organizations – the Kansas City Star, the St Louis Post-Dispatch and the Springfield News-Leader – held that it was in the public interest that citizens were aware of how the ultimate punishment was being wielded in their name.
Judge Jon Beetem excoriated the department of corrections for refusing to hand over to the media plaintiffs key documents that identified the pharmacists involved.
The judge ruled that the DOC had “knowingly violated the sunshine law by refusing to disclose records that would reveal the suppliers of lethal injection drugs, because its refusal was based on an interpretation of Missouri statutes that was clearly contrary to law”...
Since the Guardian’s litigation was first lodged, 13 inmates have been put to death by Missouri – going to their deaths without them or the public having any idea of where the drugs used to kill them came from, nor of their quality.
All that was known was that the pentobarbital probably originated a compounding pharmacy, an outlet that makes up small batches of the drug to order, normally for cosmetic purposes.
Along with most other active death penalty states, Missouri has increasingly wrapped itself in secrecy in an attempt to get around a powerful European-led boycott that has blocked trade in lethal injection drugs to US prison departments on ethical grounds.
In order to circumvent the stranglehold, states have taken to hiding the identity of pharmacists and medical laboratories involved in selling and testing the drugs for use in executions.
As the boycott tightened, death penalty states turned to ever more extreme – and in some cases bizarre – supply routes. Last year, BuzzFeed tracked down one such illegal supply line to an office complex in Kolkata, India.
The danger of carrying out the death penalty while withholding from the public the nature and the source of the drugs used was underlined by a succession of botched executions in which gruesome scenes were witnessed on the gurney.
The judge's opinion is available here.
Saturday, April 23, 2016
This recent paper is available here. Here's the abstract:
Procedural justice theory predicts a relationship between police behavior, individuals’ normative evaluation of police, and decisions to comply with laws. Yet, prior studies of procedural justice have rather narrowly defined the potentially relevant predicates of police behavior. This study expands the scope of procedural justice theory by considering a broad array of policing components, including unobserved actions such as electronic surveillance, respecting the limits of one’s legal authority, and the unequal or equal distribution of policing resources between different groups. Analyzing data from a national probability sample of adults in England and Wales, we (a) present a comprehensive investigation of the heterogeneous elements of policing related to legitimacy judgments and (b) contribute to debate about the nature of legitimacy.
In Felon Disenfranchisement is Anti-Democratic, Professor and NAACP Legal Defense and Educational Fund associate director Janai Nelson makes the case for enfranchising felons. She writes:
The laws that prohibit an estimated 5.85 million Americans with felony convictions from voting are one of the last remaining legal barriers to full democratic participation in our nation.
Like the antiquated laws that excluded women, people of color and the poor from the ballot box, felon disenfranchisement laws are an anti-democratic tool with a sordid history of discrimination. Today, they intersect with the profound racial disparities in the U.S. criminal justice system to keep one out of every 13 African-Americans from voting.
Gov. Terry McAuliffe’s recent executive order restoring voting rights to the more than 200,000 Virginians with felony convictions — which keeps one in five African-Americans from voting there — is the powerful leadership needed across the nation to combat vestiges of de jure racial discrimination andrecent retrenchment on voting rights more broadly.
In 1985, the landmark Supreme Court case, Hunter v. Underwood, revealed the racist roots of felon disenfranchisement laws in Alabama. Persons convicted of crimes "involving moral turpitude" were not allowed to vote. Yet African-Americans were so disproportionately affected by this law, the Supreme Court struck it down, and indeed found evidence that the law was passed to intentionally exclude blacks from the ballot. Alabama’s unabashed pursuit of white supremacy through the enactment of these laws rendered them unconstitutional.
Virginia's laws have similarly ignominious origins. A 1906 report quoting the former Virginia state senator Carter Glass forecast that voting laws passed in 1902would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.
What's more, modern support for felon disenfranchisement is often based on negative assumptions about how someone’s identity, status or past behavior will inform his or her choices in the ballot box. But assumptions about a voter's viewpoint violate First Amendment principles.
Instead, we should be doing everything possible to successfully integrate the estimated 636,000 people released from prisons each year into society, such as passing federal legislation like the Democracy Restoration Act — which has been introduced over and over again, in legislative session after session — to ban felon disenfranchisement and end unnecessary criminal background checks. These and other re-entry tools are critical to reducing recidivism and reversing the deleterious effects of our outsized carceral state.
In a country that has the highest incarceration rate of any modern democratic nation, laws that prevent prisoners from voting also imprison our democracy. The disfranchisement of people with felony convictions is one of the most pressing civil rights issues of our time.
Friday, April 22, 2016
DOJ finds University of New Mexico's "flawed system" for handling sexual assault claims fails to meet Title IX requirements
Title IX of the Civil Rights Act requires colleges and universities to investigate allegations of sexual assault and harassment. As The Huffington Post's Tyler Kingkade reports, the University of New Mexico (UNM) doesn't seem to care--at least according to a recent DOJ investigation into the university's handling of sexual assault and harassment allegations over a six-year period. As Kingkade writes:
During much of that time, UNM had no written protocol on how long it should take with investigations, and cases often took twice as long to resolve as the 60-day timeframe recommended by the U.S. Department of Education. Both complainants and respondents were often not told about delays or why things were taking so long, the DOJ said...
Further problematic was that until the DOJ investigation, the [Office of Equal Opportunity], which handled sexual assault investigations, reported to the office of the university’s general counsel.
“This management structure created a conflict between OEO’s stated goal of eliminating and redressing harassment and OUC’s role in limiting the University’s liability,” the DOJ said.
Interim sanctions were inconsistent...
Students speaking with federal investigators accused campus police of gender bias, saying officers questioned victims about why they didn’t do more to fight off their attackers or lectured them on why young women should not drink in public, the report said. UNM cops often believed at “face-level” the accused students’ claims that victims consented and rarely challenged them, federal investigators found.
University administrators had similar sentiments, the DOJ said, sometimes describing victims as “lonely” or “clingy.” In interviews, “University officials made several statements placing blame with students who are assaulted, reflecting a significant lack of understanding about the dynamics of sexual assault.”
The DOJ will now require UNM to provide better and clearer information about reporting options for sexual violence, and disclose more details to students and staff on where to go for assistance or to begin grievance procedures. The university will also have to revise policies, procedures and investigative practices to ensure “prompt and equitable resolution of sexual harassment and sexual assault allegations.”
Virginia Governor Terry McAuliffe (D) issued an executive order today extending the right to vote to felons who have completed their sentences and parole or probation, as The NYTimes's Sheryl Gay Stolberg and Erik Eckholm report here. The entire article is worth reading, but here are a few excerpts:
The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole or probation to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.
Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons...
Friday’s shift in Virginia is part of a national trend toward restoring voter rights to felons, based in part on the hope that it will aid former prisoners’ re-entry into society. Over the last two decades about 20 states have acted to ease their restrictions, according to the Brennan Center for Justice at New York University.
Only two states — Maine and Vermont — have no voting restrictions on felons.
Virginia has been one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions, a lifetime ban on voting for felons. The Sentencing Project says one in five African-Americans in Virginia cannot vote...
Prof. A. E. Dick Howard of the University of Virginia School of Law, the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once...
The governor’s action Friday will not apply to felons released in the future; his aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover people as they are released.
As voluntary affirmative action in the United States has been transformed into diversity management, the original intended beneficiaries of affirmative action, racial/ethnic minority group members and women, and particularly Black Americans, have been left behind.
Despite controversy over the use of racial quotas in the United States, demands for voluntary affirmative action by private employers grew into a nationwide movement in the 1960s under the leadership of Rev. Dr. Martin Luther King Jr. and Rev. Jesse Jackson. In cities across the United States with large Black populations, they demanded the use of proportional hiring so that companies selling their products to Black consumers would hire Black employees in proportion to the local Black population or their Black clientele. In the 1964 Civil Rights act, the U.S. Congress considered the affirmative action/proportional representation/quota issue and reached a compromise; employers would not be required to give preferences to Black applicants, but neither would they be prohibited from voluntarily doing so. In the 1970s and 80s the U.S. Supreme Court upheld the compromise, holding that private employers could give hiring and promotion preferences to underrepresented ethnic/racial minority workers (and women) to correct “imbalances” in the workplace, subject to certain limitations. Yet beginning with the election of Ronald Reagan in 1980, and accelerating into the twenty-first century, U.S. employers have abandoned affirmative action policies in favor of “diversity management” policies. While these policies initially focused on the hiring and promotion of women and racial/ethnic minorities, as diversity policies have grown and developed, they have abandoned their focus on aiding underrepresented workers. As a result, Black Americans are being left behind, even as the policies adopted through their advocacy have become widely accepted.
Thursday, April 21, 2016
This Review argues that an important root cause of our criminal justice ails can be found in the social processes that comprise the system’s daily activities and forms of control over individual Americans — processes largely taken for granted. To explore the ground level interpersonal interactions that underpin the criminal justice system, we engage three recent books: Pulled Over: How Police Stops Define Race and Citizenship by Professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel; On the Run: Fugitive Life in an American City by Professor Alice Goffman; and The Eternal Criminal Record by Professor James Jacobs. Substantively and methodologically, the books might first seem an odd trio. But together, they reveal the importance of a key phenomenon: “surveillance” in the word’s broadest sense — keeping track of people’s movements, histories, relationships, homes, and activities.
Tuesday, April 19, 2016
The title of this post comes from this paper, the abstract of which states:
The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the “new policing.” This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the “new policing” gave rise in the 1990s to popular, legal, political and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated whites, even when controlling for local social and crime conditions. In this article, we examine racial disparities under a unique configuration of the streetstop prong of the “new policing” – the inclusion of non-contact observations (or surveillances) in the field interrogation (or investigative stop) activity of Boston Police Department officers. We show that Boston Police officers focus significant portions of their field investigation activity in two areas: suspected and actual gang members, and the city’s high crime areas. Minority neighborhoods experience higher levels of field interrogation and surveillance activity, controlling for crime and other social factors. Relative to white suspects, Black suspects are more likely to be observed, interrogated, and frisked or searched controlling for gang membership and prior arrest history. Moreover, relative to their black counterparts, white police officers conduct high numbers of field investigations and are more likely to frisk/search subjects of all races. We distinguish between preference-based and statistical discrimination by comparing stops by officer-suspect racial pairs. If officer activity is independent of officer race, we would infer that disproportionate stops of minorities reflect statistical discrimination. We show instead that officers seem more likely to investigate and frisk or search a minority suspect if officer and suspect race differ. We locate these results in the broader tensions of racial profiling that pose recurring social and constitutional concerns in the “new policing.”
Thursday, April 7, 2016
This Article examines the role military automated surveillance and intelligence systems and techniques have supported a self-reinforcing racial bias when used by civilian police departments to enhance predictive policing programs. I will focus on two facets of this problem. First, my research will take an inside-out perspective, studying the role played by advanced military technologies and methods within civilian police departments, and how they have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools, and which automates de facto penalization and containment based on race. Second, I will explore these systems — and their effects — from an outside-in perspective, paying particular attention to racial, societal, economic, and geographic factors that play into the public perception of these policing regimes. I will conclude by proposing potential solutions to this problem, which incorporate tests for racial bias to create an alternative system that follows a true community policing model.
Tuesday, April 5, 2016
Mississippi Governor Phil Bryant on Tuesday signed into law a measure affording wide protections for actions considered discriminatory by gay rights activists.
The far-reaching law allows people with religious objections to deny wedding services to same-sex couples. It also clears the way for employers to cite religion in determining workplace policies on dress code, grooming and bathroom and locker access.
Bryant, a Republican, said in a statement that he signed the law “to protect sincerely held religious beliefs and moral convictions of individuals, organizations and private associations from discriminatory action by state government.”
His decision comes amid national protests over a new law barring transgender people in North Carolina from choosing bathrooms consistent with their gender identity. Meanwhile, the governors of Georgia and Virginia vetoed similar “religious liberty” bills last week.
The American Civil Liberties Union (ACLU) criticized the Mississippi law, which it said is set to take effect in July.
“This is a sad day for the state of Mississippi and for the thousands of Mississippians who can now be turned away from businesses, refused marriage licenses, or denied housing, essential services and needed care based on who they are,” said Jennifer Riley-Collins, executive director of the ACLU of Mississippi.
The U.S. Supreme Court unanimously turned back a legal effort to reinterpret the “one person, one vote” constitutional rule Monday, ruling that states may rely on total population when drawing their legislative districts.
The case, Evenwel v. Abbott, was brought by two Texas voters, Sue Evenwel and Edward Pfenninger, who challenged the apportionment of Texas Senate districts. With the exception of the U.S. Senate, every American legislative body is apportioned by total population under the “one person, one vote” rule first outlined by the Court in the 1960s.
Evenwel and Pfenninger argued that counting non-voters—children, the mentally disabled, disenfranchised prisoners, and non-citizens—broke that rule and diluted their political power in violation of the Fourteenth Amendment’s Equal Protection Cause. Many observers, including my colleague Garrett Epps, noted that Evenwel’s interpretation would redraw the American political map in favor of a whiter, older, and more conservative electorate.
“In agreement with Texas and the United States, we reject appellants’ attempt to locate a voter-equality mandate in the Equal Protection Clause,” Justice Ruth Bader Ginsburg wrote for the majority. “As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts.”
Last Wednesday, the Justice Department announced the resumption of the controversial equitable sharing program, which had been on hold for the past four months. The program allows police departments to seize and retain citizens' personal property without charging them with a crime; and, if one is charged with a crime, the police can retain possession of the seized property even when charges are dropped or the accused is found innocent. The police must only suspect that the property was somehow linked to a crime. The threat of abuse is obvious, and not merely hypothetical.
Of course, the inequalities that pervade the criminal justice system are present in the execution of the program. Indeed, the Center for American Progress recently released this report finding that the program most dramatically (and unsurprisingly?) affects minorities and those living in low-income communities. Here's the abstract:
In the United States, the basic tenet of the criminal justice system is that one is presumed innocent until proven guilty. However, over the past several decades, many thousands of people across the country have had their property seized by the government without being charged with a crime. Regardless of these individuals’ innocence, their cash, homes, cars, and personal property can be taken if law enforcement believes it was involved in a crime or if it is the proceeds of a crime.
This practice, known as civil asset forfeiture, was established as a tool to dismantle criminal organizations. But over the past 30 years, the use—and in many cases abuse—of this practice has spiraled well beyond the purposes for which it was created. In recent years, civil asset forfeiture has come to create perverse incentives that can lead law enforcement agencies to seek profit over justice.
For many years, one of the primary drivers of these perverse incentives has been a federal practice called equitable sharing. Under this practice, state and local law enforcement can have a seizure adopted by the federal government—that is to say, placed under federal jurisdiction—and be allowed to keep up to 80 percent of the proceeds from the adopted seizures, with the remaining 20 percent going to federal agencies. Some $3 billion in seizures were distributed through equitable sharing between 2008 and 2014.
Amid media and public controversy around the program, equitable sharing was curtailed in 2015 by then-U.S. Attorney General Eric Holder. While the new federal policy that Attorney General Holder put in place last year was without question a step in the right direction, it left room for continued abuses. Today, congressional lawmakers continue to work on a bipartisan basis to pass federal legislation to achieve further reform. Moreover, many states still have laws on the books that permit unjust and harmful civil asset forfeiture practices. Without additional reform, innocent people across the United States will continue to face seizure of their cash, vehicles, and even homes—many without ever having their day in court.
In Michigan, for example, an elderly disabled woman had every penny of her savings taken by law enforcement—money she had received from disability payments and a car accident settlement—even though the government had not proven that it was connected to illegal activity. This left her unable to challenge the seizure because she had no funds left to post the bond in court. A low-income Philadelphia grandmother had her house seized because her niece’s boyfriend was accused of selling drugs outside her home. And a Los Angeles taco truck owner had thousands of dollars of earned taco sales taken by law enforcement despite no evidence of criminal activity. While he initially challenged the seizure, he was forced to drop the case because it was too expensive to fight and he feared the legal proceedings would risk the deportation of his relatives.
Although civil asset forfeiture affects people of every economic status and race, a growing array of studies indicates that low-income individuals and communities of color are hit hardest. The seizing of cash, vehicles, and homes from low-income individuals and people of color not only calls law enforcement practices into question, but also exacerbates the economic struggles that already plague those communities.
Making matters worse, these individuals are the least able to shoulder the cost required to regain their property through complicated legal proceedings that are heavily weighted in favor of law enforcement. Moreover, because there is no constitutional right to an attorney in forfeiture cases, property owners who cannot afford legal representation are often left with no choice but to attempt to represent themselves in court.
Fortunately, as bipartisan outrage at unjust civil asset forfeiture practices continues to grow across the United States, policymakers have a unique opportunity to find common ground and enact laws that restore forfeiture to its original purpose. While federal reform is urgently needed, states can do a great deal to protect their residents—and especially vulnerable populations—from the abuse of civil asset forfeiture laws.
This report provides an overview of the rise of civil asset forfeiture abuse by law enforcement, highlights the impact of these abusive practices on low-income individuals and communities of color, and offers steps that state policymakers can take to prevent civil asset forfeiture abuses from pushing already struggling families and communities into or deeper into poverty.
Here's the full report.
Thursday, March 31, 2016
"[P]olice officers traded bigoted text messages...expanding the number of officers accused of making overtly racist, homophobic and sexist statements..."
…begins this local article article detailing the efforts of several San Francisco PD officers to completely undermine the department's image with Bay Area residents. It continues:
District Attorney George Gascón said Thursday that the San Francisco Police Department delivered some 5,000 pages of evidence to his office in late 2015 as part of criminal investigation, and that evidence contained the offensive texts.
“The messages are very clearly talking about African Americans and using the ‘N word’ repeatedly,” Gascón said. “They’re talking about members of the LGBT community also in a very disparaging fashion, and in the context of the conversation, they’re obviously intended to be racist in nature or homophobic. But again, we’ve only scratched the surface.”
Gascón said he couldn’t divulge the details of the criminal investigation that netted the offensive messages or the names of the officers involved...
The earlier batch of messages were made public in a federal court filing concerning former SFPD Sgt. Ian Furminger, and all the messages were recovered from his personal cell phone as part of a federal criminal investigation.
That original scandal was dubbed “Textgate” by a black and minority SFPD officers’ group. One of the text message exchanges targeted the group’s president, Sgt. Yulanda Williams, using slurs for both African-Americans and women.
[SFPD Chief Greg] Suhr attempted to fire eight of the officers involved and discipline others, but nine of them successfully challenged that discipline in superior court. A judge ruled in December that the department had allowed a one-year statute of limitations for disciplining officers to expire before pursuing the case. The officers remain on paid leave as the city appeals the ruling.
Not a good look.
Rape law is largely underenforced. Yet criticism of policing practices has myopically focused on enforcement excesses, thus overlooking the problem of the state withholding protective resources. This neglect is particularly troubling where sexual violence is at issue. Empirical evidence demonstrates the operation of pervasive biases in police officers’ decisions not to pursue an investigation. Over time, law enforcement officers have discriminated against rape victims with immunity. Recently, however, this has changed. This Article is the first to describe a new effort by the Justice Department to hold law enforcement officers accountable for failing to protect victims of sexual assault. In important respects, this turn is unprecedented. But insofar as the latest developments target violence without redress, the assertion of federal power in this domain possesses a venerable historical pedigree. When the Equal Protection Clause was conceived, the framers were chiefly concerned with the state’s failure to provide black citizens with protection from private violence. After passage of the Fourteenth Amendment, the “protection model” of equal protection, along with the federal power to enforce it, lay dormant. Recent events have revived this model and this power, allowing us to glimpse a modern version of what the 39th Congress intended. The Justice Department’s latest deployment of its “pattern or practice” enforcement authority may come as close as any intervention since Reconstruction to addressing the framers’ core concern with underenforcement. Notwithstanding the Supreme Court’s divergent jurisprudential framework, the original meaning of equal protection has begun to resurface.
Tuesday, March 29, 2016
Woman files lawsuit claiming Ohio sales tax on tampons and menstrual pads unconstitutionally discriminates against women
As this local report explains:
A group of women from the Cleveland area are suing the Ohio Department of Taxation. They’re fighting to eliminate the tax on tampons and pads.
The lawsuit states that this kind of tax is discriminatory....
[State Rep. Kristin] Boggs says feminine hygiene products are not only needed for a woman’s livelihood, but also so they can participate in society, like going to school or work. “I think there is a lack of understanding that they are medically necessary products and I think that as such they should not be taxed,” she says.
The lawsuit states that the Ohio Department of Taxation collects approximately $11 million a year just from menstruating women.
According to Boggs, if the court finds that this tax violates the Equal Protection Clause of the Constitution, then she agrees women should be reimbursed.
“Women need these products. They need them every month,” says Boggs.
Many medical items in Ohio are not taxed.
This issue is gaining traction outside Ohio as well. Five states now exempt tampons and menstrual pads from taxation while at least seven more are considering legislation to eliminate the tampon tax. And, President Obama recently addressed the issue.
Here is the 4 minute video titled, "Structural Discrimination: The Unequal Opportunity of Race":
What's most amazing is that school administrators apparently showed this video because a "racist song"--reportedly a "racist parody of the theme song from Disney's Ducktails" that begins, "I hate f*cking n****rs"--had been broadcast just minutes before the school's football team kicked off against a team from a predominately black high school.
As MuckRock.com reports, upon learning of the video, some parents immediately began inanely blathering about our PC culture's "'white guilt' agenda" and other garbage. And, of course, the members of the school board then collectively wet themselves and banned the video.
MuckRock.com's full report is here.
9th Cir. holds federal immigration law unconstitutionally discriminates against "habitual drunkards" on account of "medical condition"
Late last week, the U.S. 9th Cir. Court of Appeals decided that the federal immigration law classifying "habitual drunkards" as immoral, and therefore ineligible for relief from immediate deportation, is unconstitutional under the 14th Amendment. The LATimes's Maura Dolan explains:
Among those the law deems immoral are immigrants who participated in genocide or torture, have been convicted of a serious felony or gambling offenses and who are habitual drunkards.
Salomon Ledezma-Cosino, a Mexican citizen who entered the U.S. in 1997, was deemed an “habitual drunkard.”
Medical records show he drank an average of a liter of tequila a day for 10 years. He also has been diagnosed with acute alcoholic hepatitis, decompensated cirrhosis of the liver and alcoholism, the court said, and he has at least one conviction for driving under the influence.
Ledezma-Cosino also has eight children — five of them U.S. citizens — and has supported his family by working in the construction industry, the court said.
The majority held that the federal law linking drunkenness with poor moral character violates the equal-protection guarantees of the U.S. Constitution.
The full opinion can be found here.
A seemingly obvious statement, but one a Michigan defense attorney must've felt compelled to tell Vice.com's Annamarya Scaccia for this must-read piece on the shameful shortage of feminine hygiene products at many correctional facilities. Scaccia writes:
For women incarcerated in America's prison industrial complex, practicing proper menstrual hygiene is almost impossible. That's because, criminal justice advocates say, inmates are supplied with an inadequate amount of pads or denied feminine hygiene products altogether...
Former Rikers Island inmates have told [one advocate] that jail guards are "consistently inconsistent" with giving incarcerated women access to menstrual products. Sometimes it's because they're not enough of pads to go around. Most times, however, it's because guards want to punish an inmate and reinforce the power structure by denying access—an abuse of power advocates say is rampant across all prison systems.
Inmates could buy tampons, pads and other feminine hygiene products at a facility's commissary. But for the 72 percent of female inmates living in poverty, that's unaffordable. So they're left to ask for more pads from the very people who deny them in the first place, advocates say. And, Miller says, former inmates in New York City have reported being forced to show their soiled pads to their guard just to prove they needed more supplies. Women incarcerated in New York State's prison system have reported much the same...
A 2015 Correctional Association of New York report found that state prison inmates, who receive 24 pads per month, would stretch out their supply for the duration of their period—sometimes using one for the week. Other women said they would double up on pads during heavy days because the pads they would receive are too thin and barely absorbent. The ACLU of Michigan filed a federal class action lawsuit in December 2014 against Muskegon County for "inhumane and degrading policies" on behalf of inmates who reported similar experiences.
These coping practices lead to poor menstrual hygiene, advocates say. And poor menstrual health, research shows, can lead to serious infections like bacterial growth in the vagina or toxic shock syndrome.
In New York City, local lawmakers recently introduced legislation that would require corrections officers to "provide pads immediately upon request." But, some question whether that will make a meaningful difference.
Existing case law reinforces a prisoner's constitutional right to basic cleanliness. Judges in 1989's Carver v. Knox County, Tennessee, 1997's Carty v. Farrelly and 2005's Atkins v. County of Orange all ruled that failing to provide or denying access to sanitary items violates the Eight Amendment, which enshrines a prisoner's right to a "basic human need"—i.e. toilet paper and menstrual products—in its Cruel and Unusual Punishment Clause.
But correctional officers continue to violate the law because they're not punished when they do so, says David Fathi, director of the ACLU's National Prison Project. That lack of accountability—among other reasons—has allowed the problem to become rampant and systemic.
So while legislative efforts are commendable, he says, a mechanism needs to be in place that appropriately reprimands staff for violating the law—and a prisoner's civil rights. "There has to be accountability and consequences," says Fathi.
Saturday, March 26, 2016
When the Supreme Court found a constitutional right to same-sex marriage in Obergefell v. Hodges, many thought the Court was exercising its political will rather than its legal judgment. Noting the absence of same-sex marriage in early American history and assuming that marriage is a relatively static and timeless social institution (a view I call "marriage essentialism"), many believe that Obergefell cannot be grounded in legal precedent.
In truth, however, marriage was itself evolving in numerous ways in the centuries and decades prior to Obergefell. It was evolving from a hierarchically organized relationship of status, which gave certain religious and communal institutions a great amount of de facto control over patterns of marital relation and sexual and reproductive liberty, to a more autonomously governed private relationship, grounded in respect for personal choice and concern for the emotional well-being of partners in intimate relationships. Whereas the early traditions of marriage in America supported two illiberal and inegalitarian caste systems, relating to sex and race, marriage had already become much more egalitarian, libertarian and diverse in function.
Hence, the real legal question in Obergefell was not whether — given a fixed but ultimately mistaken conception of "traditional marriage" — there was any direct legal precedent for same-sex marriage in the United States. The real question was whether — given the recent developments in domestic marriage in America prior to Obergefell — it violated the equal protection clause to give Americans unequal rights to participate in this new and more libertarian form of marriage, based solely on their sexual orientations and resulting romantic choices. The Supreme Court answered this question in the affirmative, but the false premise of marriage essentialism has prevented many from understanding the correct legal grounding for this case.
Friday, March 25, 2016
Forty years into the Title IX game, the score is 253 to 0, religious exemptions recognized versus those denied. Almost no one knows the overall score of the game, who has made points, or who is playing. Prior to the Human Rights Campaign’s release of a report in December 2015, relatively few beyond the participants themselves even knew the game was played. Documented religious exemptions to Title IX largely take place in the dark, in private administrative processes rarely made public, under obscure agency standards and policies. The parameters of religious exemptions to Title IX have never been litigated in court or subjected to judicial review. Virtually no scholarship exists on the subject. Religious exemptions to Title IX pose a particularly urgent question given the flood of new exemptions claims focusing on transgender and homosexuality. This analysis is a first, foundational step in evaluating religious exemptions to Title IX.
On its face, a score of 253 and counting, suggests complete and overwhelming victory for one side, the educational institutions claiming religious exemption to Title IX. In reality, however, the lopsided score hides another story, one much more complex and nuanced than the score reflects. Over time, the government agency charged with Title IX enforcement subtly arrogated to itself power and authority to regulate religious exemption to Title IX. As much as victory, the score reveals a subtle erosion of autonomy as religious educational institutions acquiesce to the administrative state by requesting exemption under regulatory procedures rather than claiming inherent exemption under the Title IX statute itself and the Constitution. I conclude that the administrative regulatory procedures for religious exemption to Title IX have largely failed to accomplish the non-discrimination goals of Title IX, to respect religious liberties, or to facilitate a sustainable engagement between these potentially competing values.
The Daily Beast's Samantha Allen shares this story about The Satanic Temple's (TST) efforts to combat anti-abortion legislation around the country. Recently, several members of Detroit's local chapter travelled to Ann Arbor, Michigan to stage a "Sanctions of the Cross" procession, a performance meant to satirize an anti-abortion group's "Ways of the Cross" protest in which members "kneel outside abortion clinics...and pray for 'victims' of abortion, moving through the twelve stations of the cross." Allen writes:
At the counter-protest, Satanic Temple members walked behind the cross-bearing [chapter director] wearing suits bearing the names of the Michigan legislators who sponsored the recent anti-abortion bills. Behind them, an activist wore a leather jacket emblazoned with a middle finger and held up a grayscale American flag.
The Satanic Temple—especially the Detroit Chapter—has a history of counter-protesting religious displays and anti-abortion protests. In 2014, for example, they displayed a “Snaketivity” on the lawn of the Michigan Capitol building in response to the nativity scene being permitted on government property.
In 2015, they counter-protested anti-abortion Planned Parenthood picketers in Ferndale[, Mich.] with a theatrical display in which men dressed as priests poured milk over bound women kneeling in front of the clinic, resulting in the extraordinary Michigan Live headline: “Detroit-area Satanists doused with milk at Planned Parenthood protest.”
Last May, the group also filed lawsuits challenging anti-abortion legislation in Missouri.
The religious organization filed state and federal lawsuits over Missouri’s mandatory 72-hour pre-abortion waiting period, which is one of the longest in the country. Their legal argument, as Vice reported, borrowed heavily from the Hobby Lobby decision by claiming that they should be permitted to claim a religious exemption from the abortion restriction. The move sparked outrage among anti-abortion activists.
In case you're wondering what TST's all about, here's a brief description from the group's website:
It is the position of The Satanic Temple that religion can, and should, be divorced from superstition. As such, we do not promote a belief in a personal Satan. To embrace the name Satan is to embrace rational inquiry removed from supernaturalism and archaic tradition-based superstitions. The Satanist should actively work to hone critical thinking and exercise reasonable agnosticism in all things. Our beliefs must be malleable to the best current scientific understandings of the material world — never the reverse...
Satan is symbolic of the Eternal Rebel in opposition to arbitrary authority, forever defending personal sovereignty even in the face of insurmountable odds. Satan is an icon for the unbowed will of the unsilenced inquirer… the heretic who questions sacred laws and rejects all tyrannical impositions. Ours is the literary Satan best exemplified by Milton and the Romantic Satanists, from Blake to Shelley, to Anatole France.
The protesting appears to have been entirely peaceful on both sides.