Monday, June 26, 2017
SCOTUS in Trinity Lutheran Finds Missouri's Denial of Funding to Church Playground Violates First Amendment
In its opinion in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision, a so-called Blaine Amendment, prohibiting any state funds from being awarded to religious organizations.
Recall that at the oral arguments, most Justices seemed skeptical of Missouri's argument. However, recall that the Eighth Circuit had concluded that Trinity Church sought an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church." The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
In the Trinity Lutheran opinion authored by Chief Justice Roberts, the Court characterized the Missouri policy as one that "expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character." Relying on the Free Exercise precedent it had discussed, it concluded that if such cases "make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." The Court added that "Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government program without disavowing its religious character."
Yet the question of subsidy or funding caused some consternation amongst the Justices who joined the Chief Justice's opinion for the Court. Footnote 3, which provides in full "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination" is joined only by a plurality - - - Justices Thomas and Gorsuch explicitly exempted this footnote. In two brief concurring opinions, one by Thomas joined by Gorsuch and one by Gorsuch joined by Thomas, the continued vitality of Locke v. Davey is questioned.
In the Court's opinion, Locke v. Davey is distinguished because "Davey was not denied a state-funded scholarship of who he was but because of what he proposed to do - to use the funds to prepare for the ministry." (emphasis in original). For Gorsuch, this status-use distinction is not sufficient.
Justice Sotomayor's dissenting opinion, joined by Justice Ginsburg, and almost twice as long as the Chief Justice's opinion for the Court, is rich with originalist history as well a discussion of Locke v. Davey and a citation to the 38 state constitutional provisions similar to the Missouri one. For Sotomayor,
Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice.
Sotomayor points to the possible ramifications of the opinion, including the troublesome footnote 3:
The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so whenever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. I dissent.
It dies seem that Trinity Lutheran opens the floodgates for claims by religious entities that they are being "discriminated" against whenever there are secular provisions for funding.
Monday, June 12, 2017
In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men."
Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.
Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary. In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love." This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:
Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.
And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:
perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.
June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)
Monday, November 28, 2016
A complaint alleging violations of the First and Fourth Amendments by North Dakota officials has been filed on behalf of "water protectors" at the Dakota Access Pipeline (DAPL) protest at Standing Rock. The plaintiffs in Dundon v. Kirchmeier have also filed a motion and memo for a Temporary Restraining Order "enjoining Defendants from curtailing their First and Fourth Amendment rights by using highly dangerous weaponry, including Specialty Impact Munitions (SIM, also known as Kinetic Impact Projectiles or KIP), explosive “blast” grenades, other chemical agent devices, and a water cannon and water hoses in freezing temperatures, to quell protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline (DAPL).
As to the First Amendment, the plaintiffs allege that the defendants have sought to eliminate protected First Amendment activity in a public forum. Additionally, even if there were an "unlawful assembly" not protected by the First Amendment, the defendants violated the Fourth Amendment's prohibition of excessive force. Moreover, the plaintiffs claim that the activities of the government officials have become a custom warranting government liability.
The factual claims in the complaint and memo supporting the TRO are troubling; some of the accounts will be familiar from reporting, but the legal documents compare the use of force at Standing Rock to other situations.
For example, on the water cannon:
The use of water cannons in riot control contexts also can lead to injury or death. Potential health effects include hypothermia and frostbite, particularly if appropriate medical and warming services are not easily accessible. High-pressure water can cause both direct and indirect injuries. Direct injuries may include trauma directly to the body or internal injuries from the force of the water stream. Eye damage resulting in blindness as well as facial bone fractures and serious head injuries have been documented. Ex. V at 59; Anna Feifenbaum, White-washing the water cannon: salesmen, scientific experts and human rights abuses, Open Democracy (Feb. 25, 2014); https://www.opendemocracy.net/opensecurity/anna-feigenbaum/white-washingwater-cannon-salesmen-scientific-experts-and-human-rights; https://web.archive.org/web/20070221053037/http://newzimbabwe.com/pages/mdc44.15976.html (fatalities reported in Zimbabwe in 2007, when water cannons were used on peaceful crowd, causing panic); http://www.hurriyetdailynews.com/Default.aspx?pageID=238&nid=49009 (fatalities reported in Turkey in 2013, when water cannon water was mixed with teargas); https://www.kyivpost.com/article/content/ukraine-politics/activist-watered-by-police-diedbecause-of-pneumonia-335885.html (fatality reported in Ukraine in 2014, when businessman Bogdan Kalynyak died from pneumonia after being sprayed by water cannon in freezing temperatures). There is no current caselaw on the use of water cannons against protesters in the United States because, along with attack dogs, such use effectively ended in the U.S. in the 1960s amidst national outcry over the use of these tactics on nonviolent civil rights protesters.
Monday, September 19, 2016
The official trailer for the movie, Loving, based on Loving v. Virginia (1967) and due to be released November 4, is available:
The film has already received some positive reviews including from audiences at the Cannes Film Festival.
The case is always a popular read with ConLaw students and the film will certainly only accentuate that interest.
The trailer includes reference to the United States Supreme Court case, but it is best offered to students as a supplement on the course website rather than as precious minutes of class time.
Wednesday, February 24, 2016
On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read.
Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:
Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.
The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees. Brennan's opinion for the Court notably began:
To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.
What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested. And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.
Sunday, January 31, 2016
Roosevelt begins by provocatively asking whether we could dare to even "invent" a character like Richard Posner if he did not exist, flatteringly describing Posner as "arguably America’s greatest living judge." (A judgment that many might find more than a bit arguable.)
As to the book, Roosevelt has a few criticisms. Although it is "a valuable contribution to debates over the future of federal courts and law schools alike," its "list of judicial problems and possible academic solutions is long enough to be overwhelming: It includes 55 problems and 48 solutions." Moreover, some of the criticisms are "overstated." As to legal scholarship, Roosevelt takes Posner to task for his judgment about the correctness of the now-reviled decision in Korematsu v. United States, upholding a Japanese internment conviction during World War II, and notes that legal scholarship has shown that the government not only over-reacted but was less than candid with the Court.
While Roosevelt has high praise for the book, it does not seem like a must-read. Instead, read Roosevelt's review.
Tuesday, December 15, 2015
In his Presidential proclamation this year, President Obama articulates a living constitutionalism perspective:
Today, we stand on the shoulders of those who dedicated their lives to upholding the meaning of our founding documents throughout changing times -- a mission made possible by the fundamental liberties secured in the Bill of Rights. As we reflect on the strides we have made to lift up an engaged citizenry, we pay tribute to the extraordinary foresight of our Founders who granted the protections that enable us to bring about the change we seek. Let us recommit to continuing our legacy as a Nation that rejects complacency, empowers its citizens to recognize and redress its imperfections, and embraces the struggle of improving our democracy so that all our people are able to make of their lives what they will.
For more on the "holiday," my piece from last year is reprinted here.
Tuesday, December 8, 2015
The Amicus Brief of the United States in Fisher v. University of Texas - - - Fisher II - - - to be argued December 9, begins its argument with an interesting evocation of the governmental interest in diversity:
Over two hundred years ago, George Washington recognized the importance to the Nation of a university education that would “qualify our citizens for the exigencies of public, as well as private life *** by assembling the youth from the different parts of this rising republic, contributing from their intercourse, and interchange of information, to the removal of prejudices which might perhaps, sometimes arise, from local circumstances.” Letter from President George Washington to the Commissioners of the District of Columbia (Jan. 28, 1795), in 34 The Writings of George Washington 106-107 (John C. Fitzpatrick ed., 1940).
[Ellipses in original].
Monday, October 12, 2015
The 2015 Presidential Proclamation for Columbus Day includes an acknowledgement that the celebration of Columbus is controversial among many:
Though these early travels expanded the realm of European exploration, to many they also marked a time that forever changed the world for the indigenous peoples of North America. Previously unseen disease, devastation, and violence were introduced to their lives -- and as we pay tribute to the ways in which Columbus pursued ambitious goals -- we also recognize the suffering inflicted upon Native Americans and we recommit to strengthening tribal sovereignty and maintaining our strong ties.
As the Washington Post reports, many cities are replacing Columbus Day with Indigenous Peoples Day, including Seattle. The state of South Dakota legislated the day as "Native American Day" in 1990 - - - although no other state seems to have followed suit. The day remains a federal holiday.
A lively commentary by James Nevius over at The Guardian calls Christopher Columbus a "lost sadist," but also interestingly argues that the holiday's "sentiments are superfluous," given the United States' development. In a more scholarly vein, Kevin Bruyneel has argued that the holiday serves as a consolidation of white settler identity; his article, The Trouble with Amnesia: Collective Memory and Colonial Injustice in the United States, takes calendar holidays as its theme and is worth a read over at ssrn.
Friday, September 18, 2015
The question of whether the institution of chattel slavery is inherent in the Constitution is being debated in the popular press.
In an op-ed in the New York Times, Sean Wilentz argues that "the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past." He concludes
Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.
Over at the New Republic, Lawrence Goldstone argues Wilentz is absolutely wrong. Sure, the Constitution's framers avoided the word "slavery" in the document itself, just as in the debates they "almost always employed euphemisms such as 'this unique species of property, 'this unhappy class,' or 'such other persons.' " Goldstone concludes that perhaps it may be correct to say that "the Constitution didn’t specifically anoint slavery as a national institution," but nevertheless "in clause after clause it tried to make certain that slavery would endure as one."
To see such matters debated in the popular press, even in such abbreviated form, has been stimulating to many ConLaw students studying the issue in class.
Wednesday, July 1, 2015
Reports that Ku Klux Klan (KKK) members are considering a rally in Columbia, South Carolina to support the controversial display of the confederate battle flag evokes images of hooded persons in traditional KKK garb.
However, South Carolina, like many states, has an anti-masking statute, S.C. 16-7-110, which provides:
No person over sixteen years of age shall appear or enter upon any lane, walk, alley, street, road, public way or highway of this State or upon the public property of the State or of any municipality or county in this State while wearing a mask or other device which conceals his identity. Nor shall any such person demand entrance or admission to or enter upon the premises or into the enclosure or house of any other person while wearing a mask or device which conceals his identity. Nor shall any such person, while wearing a mask or device which conceals his identity, participate in any meeting or demonstration upon the private property of another unless he shall have first obtained the written permission of the owner and the occupant of such property.
As I've discussed in Dressing Constitutionally, such statutes, sometimes known as anti-KKK statutes, have been upheld against First Amendment challenges.
For example, the similar Georgia statute, passed in 1951 and still in force, makes it a misdemeanor for any person who “wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” and is either on public property or private property without permission. In 1990, the Georgia Supreme Court in State v. Miller, 260 Ga. 669, 674, 398 S.E.2d 547, 552 (1990) upheld the statute against a First Amendment challenge by Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute itself. In addressing Miller’s argument that the statute was overbroad, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”
New York's anti-masking statute, which was not originally prompted by KKK activities but by land revolts before the Civil War, was also upheld against a challenge by the KKK. In 2004, the Second Circuit panel - - - including now United States Supreme Court Justice Sotomayor - - -decided Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 201 (2d Cir. 2004). The KKK group had sought an injunction against the statute to allow a demonstration while wearing masks. Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask in its analysis. In the court’s view, the mask was “redundant” and did “not convey a message independently of the robe and hood.” Moreover, the court opined that mask-wearing was not integral to the expression, but optional even amongst KKK members. Thus, while the KKK members had a First Amendment right to march, they did not have a First Amendment right to do so wearing their masks.
Should KKK members attempt to demonstrate while wearing their "regalia" that includes hoods that obscures their faces, the South Carolina masking statute - - - and its constitutionality - - - are sure to be in play.
July 1, 2015 in Association, Criminal Procedure, Current Affairs, Federalism, First Amendment, Fundamental Rights, History, Interpretation, Race, Reconstruction Era Amendments, Speech, Theory | Permalink | Comments (0)
Monday, June 15, 2015
According to the usual history, "On June 15, 1215, in a field at Runnymede, King John affixed his seal to Magna Carta. Confronted by 40 rebellious barons, he consented to their demands in order to avert civil war." The civil war was not successfully averted, but the document has come to symbolize principles of liberties and rights, including as a precursor to the United States Constitution.
The document itself, with its specific items regarding freemen, property, writs, and the memorable "No-one is to be taken or imprisoned on the appeal of woman for the death of anyone save for the death of that woman’s husband."
A good overview is from the BBC magazine, which points outs that most of its provisions applied only to ""Free men" who in 1215 accounted for less than half the population; the rest were serfs, to whom the charter did not apply, as well as women and children.
ConLawProf Tom Ginsburg's Op-Ed in the New York Times entitled "Stop Revering Magna Carta," in which he argues that the Magna Carta's current status rests on a series of misunderstandings.
The current celebrations and controversies in "England" including not only commemoration by Queen Elizabeth, but statements by Prime Minister Cameron that Great Britain must "restore" its dedication to "human rights" as evinced in Magna Carta by secession from the European Court of Human Rights and Human Rights Act.
Thursday, April 16, 2015
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92. [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of NFIB v. Sebelius attracted 136 amicus briefs.]
The count for Obergefell v. Hodges stands at 139. 147 [updated: 17 April 2015] 149 [updated] LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.
76 77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.
58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.
05 amicus briefs support neither party (but as described below, generally support Respondents).
According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.” While such a brief “may be of considerable help to the Court,” an “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”
An impressive number of the Amicus Briefs are authored or signed by law professors. Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination. Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.
Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives. [Late additions appear below]Special thanks to City University of New York (CUNY) School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.
April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3)
Sunday, March 8, 2015
Over at the Los Angeles Times in an Op-Ed, ConLawProf Ronald J. Krotoszynski Jr. argues that present First Amendment doctrine would preclude the famous Selma march being commemorated on its 50th anniversary today.
Krotoszynski contends that it would now be "impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway" and that under "contemporary legal doctrine, the Selma protests would have ended March 8, 1965."
He faults the reshaping of public forum doctrine and time, place or manner restrictions so that "protests" are now relegated to "designated speech zones." He highlights the recent litigation regarding the First Amendment rights of protestors in Ferguson, which, although successful on behalf of the protestors, was a success that was both delayed and partial.
Krotoszynski's op-ed is an important reminder that while voting rights and equality are integral to the remembrance of Selma as President Obama elucidated in his speech, "Selma's main lesson" might also be that "taking to the streets and other public spaces in protest is central to our democracy."
Monday, December 15, 2014
December 15 is Bill of Rights Day.
President Obama's proclamation this year includes this passage:
On the anniversary of the Bill of Rights, we reflect on the blessings of freedom we enjoy today, and we are reminded that our work to foster a more free, more fair, and more just society is never truly done. Guided by these sacred principles, we continue striving to make our country a place where our daughters' voices are valued just as much as our sons'; where due process of law is afforded to all people, regardless of skin color; and where the individual liberties that we cherish empower every American to pursue their dreams and achieve their own full measure of happiness.
Thursday, September 18, 2014
Recall that in February of 2014, a panel of the Ninth Circuit in Dariano v. Morgan Hill Unified School District rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.
The en banc Ninth Circuit has now denied en banc review, over a dissent, and issued an amended panel opinion which adds several paragraphs of analysis.
Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Tallman and Bea, argued that the reaction of other students to the flag-clothing wearing students amounted to a " heckler’s veto" which the panel wrongly validated. Moreover, the dissent argued that this created a circuit split with the Seventh Circuit, relying on Zamecnik v. Indian Prairie School District No. 204, decided in 2011. Judge Posner's opinion in Zamecnik concluded that the students wearing the "Be Happy Not Gay" t-shirt was protected by the First Amendment (although importantly Posner did not highlight any possible violence in that case). The dissenting opinion from en banc review by O'Scannlain does not include the Sixth Circuit's Bible Believers v. Dearborn County decided less than a month ago in which the court extensively analyzed the heckler's veto doctrine and found the speech could be limited. As to the "confederate flag" cases on which the original panel relied, the dissent from en banc review by O'Scannlain distinguished situations dealing "solely with a symbol that is 'widely regarded as racist and incendiary.'”
In its amended opinion, the panel added three paragraphs that presumably address some of these concerns. The amended opinion now includes:
We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.” [fn 7] But the language of Tinker and the school setting guides us here. Where speech “for any reason . . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech. Tinker, 393 U.S. at 513. To require school officials to precisely identify the source of a violent threat before taking readily-available steps to quell the threat would burden officials’ ability to protect the students in their charge—a particularly salient concern in an era of rampant school violence, much of it involving guns, other weapons, or threats on the internet—and run counter to the longstanding directive that there is a distinction between “threats or acts of violence on school premises” and speech that engenders no “substantial disruption of or material interference with school activities.” Id. at 508, 514; see also id. at 509, 513.
In the school context, the crucial distinction is the nature of the speech, not the source of it. The cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. See, e.g., Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38, 38 n. 11 (10th Cir. 2013) (observing that “Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities . . . . This argument might be effective outside the school context, but it ignores the ‘special characteristics of the school environment,’” and that the court “ha[d] not found case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.” (quoting Tinker, 393 U.S. at 506)); Zamecnik, 636 F.3d at 879–80 (looking to the reactions of onlookers to determine whether the speech could be regulated); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1272 (11th Cir. 2004) (looking to the reactions of onlookers to determine whether a student’s expression “cause[d] (or [was] likely to cause) a material and substantial disruption”) (alterations and internal quotation marks omitted).
Perhaps no cases illustrate this principle more clearly than those involving displays of the Confederate flag in the school context. We respect the American flag, and know that its meaning and its history differ greatly from that of the Confederate flag. Nevertheless, the legal principle that emerges from the Confederate flag cases is that what matters is substantial disruption or a reasonable forecast of substantial disruption, taking into account either the behavior of a speaker—e.g., causing substantial disruption alongside the silent or passive wearing of an emblem—or the reactions of onlookers. Not surprisingly, these cases also arose from efforts to stem racial tension that was disruptive. Like Dariano, the reasoning in these cases is founded on Tinker. See, e.g., Hardwick, 711 F.3d at 437 (Fourth Circuit case upholding school officials’ ban on shirts with labels like “Southern Chicks,” “Dixie Angels,” and “Daddy’s Little Redneck,” and the Confederate flag icon, even though the bearer contended that hers was a “silent, peaceable display” that “even drew positive remarks from some students” and “never caused a disruption” because “school officials could reasonably forecast a disruption because of her shirts” (internal quotation marks omitted)); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir. 2009) (noting that “[o]ther circuits, applying Tinker, have held that administrators may prohibit the display of the Confederate flag in light of racial hostility and tension at their schools”); Barr v. Lafon, 538 F.3d 554, 567–68 (6th Cir. 2008) (noting the “disruptive potential of the flag in a school where racial tension is high,” and that “[o]ur holding that the school in the circumstances of this case reasonably forecast the disruptive effect of the Confederate flag accords with precedent in our circuit as well as our sister circuits”).[fn8]
Whether these additional paragraphs are sufficient to ameliorate the concerns that might be raised in a petition for certiorari is now the question.
Friday, July 4, 2014
Danielle Allen's (Princeton) just pubished her new book Our Declaration: A Reading of the Declaration of Independence in Defense of Equality right in time for your own annual reading of the Declaration--today, July the Fourth.
Allen's book is a meditation on the Declaration that starts with her own teaching of the document and moves through history, philosophy, culture, and, of course, a close reading of the text. More importantly, it's an argument that equality is at the Declaration's core--a point often missed in today's liberty-laden reading of the document (and today's liberty-laden politics).
[The Declaration] makes an argument about political equality. . . . [I]t makes a cogent philosophical case for political equality, a case that democratic citizens desperately need to understand. . . .
The purpose of democracy is to empower individual citizens and give them sufficient control over their lives to protect themselves from domination. In their ideal form, democracies empower each and all such that none can dominate any of the others, nor any one group, another group of citizens. . . .
The point of political equality is not merely to secure spaces free from domination but also to engage all members of a community equally in the work of creating and constantly re-creating that community. Political equality is equal political empowerment.
Allen was recently in the news for her argument that there's really no period after "Happiness" in the text, despite its inclusion in the official transcript of the document at NARA. That's important, because without a period the link between the rights to "life, liberty, and happiness" and the purpose of government is even yet closer. That is: without a period, it's even clearer that government is "instituted among men" in order to secure our rights to "life, liberty, and happiness."
Tuesday, June 17, 2014
Over a dissent from Justice Scalia, joined by Thomas, the United States Supreme Court decided not to review the closely watched Elmbrook School District v. Doe. The case was relisted by the Court at least ten times before the petition for certiorari was finally denied.
Recall as we discussed almost two years ago, the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church. Justice Scalia's dissent contended that because the Seventh Circuit's opinion is now "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway - - - this Term's controversial 5-4 decision upholding town council's prayer - - - "the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR)."
Yet Scalia's dissent might be most noteworthy for its casual evisceration of the Establishment Clause:
Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.
My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.
(emphasis in original).
However, with the denial of certiorari in Elmbrook School District, the line between adult activities such as legislative meetings and "school" activities such as graduations persists in Establishment Clause doctrine.
Thursday, March 27, 2014
In a review in this week's New Yorker, John Cassidy makes the case that the new book by Thomas Piketty, Capital in the Twenty-First Century, is one that "nobody interested in a defining issue of our era can afford to ignore."
This defining issue is economic inequality. Piketty's book, translated from the French and published by Harvard University Press, is an examination of the phenomenon as well as a proposal for remediation.
The proposal is a "wealth tax." Perhaps that's a "political nonstarter" as Cassidy suggests and as Piketty seemingly acknowledges. But perhaps it's not.
Monday, January 20, 2014
The New York State Museum has released the only known audio recording of Dr. Martin Luther King Jr.'s 1962 speech commemorating the centennial anniversary of the Preliminary Emancipation Proclamation. The audio was discovered on the "lost technology" of "reel to reel recording" during an ongoing project by the museum to "digitize the thousands of audio and video recordings" in "collections of more than 15 million objects and artifacts."
The audio and other materials area available at the Musuem's website here.
A preview and explanation is in the video below: