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.
Sunday, September 7, 2014
In his 71 page opinion in Ohio State Conference of the NAACP v. Husted, Judge Peter Economus has issued a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.
This opinion is the latest installment in the early voting controversies in Ohio. Recall that Judge Economus issued an order and opinion two years ago enjoining the enforcement of new Ohio legislation and specifically restoring in-person early voting on the three days preceding Election Day for all eligible voters. The Sixth Circuit, in its opinion in Obama for America v. Husted, upheld the injunction.
After that controversy, the Ohio legislature enacted SB 238, which had the effect of eliminating the so-called "Golden Week," the period when citizens could both register to vote and cast their ballots at the same time. The Ohio Secretary of State, Jon Husted, also issued directives setting uniform early in-person (EIP) voting hours for the entire state, eliminating evening voting hours and most Sunday voting during the EIP periods.
Much of the judge's opinion considers the various expert and other evidence regarding the effect of these changes. Ultimately, Judge Economus found that the changes violated the equal protection rights of certain groups, relying heavily on the Sixth Circuit's opinion in Obama for America v. Husted and Bush v. Gore.
Here's the judge's penultimate paragraph on the equal protection claim:
The Court must now weigh the significant burdens placed on voting by SB 238 and Directive 2014-17 against the offered justifications. As stated above, the Court has found these justifications to be relatively hollow, and, in some cases, not necessarily supported by logic. Accordingly, while the burdens imposed on the voting rights of African Americans, lower income voters, and the homeless are not severe, it cannot be said that they are outweighed by the offered justifications. For instance, there is virtually nothing in the record tending to justify why a uniform voting schedule could not include evening voting hours and additional Sunday voting, especially considering that such voting opportunities have been successfully offered by individual counties in past elections. While the Defendants have frequently noted that Ohio’s system of absentee voting is one of the most expansive in the entire Country, one of the touchstones of the Fourteenth Amendment’s Equal Protection guarantee in the context of voting rights is that actions of a State must “avoid arbitrary and disparate treatment of the members of its electorate.” Bush v. Gore, 531 U.S. 98, 105 (2000). Here, despite the expansiveness of Ohio’s voting system, the weakness of the offered justifications supporting SB 238 and Directive 2014-17 render them essentially arbitrary action when viewed against the burdens they impose on groups of voters. Such action is prohibited by the Equal Protection Clause. Thus, the Court’s conclusions regarding the Plaintiffs’ Equal Protection claim are easily summarized as follows: SB 238 and Directive 2014-17 arbitrarily make it harder for certain groups of citizens to vote.
On the nonconstitutional claim, §2 of the Voting Rights Act, the judge likewise found that there was a substantial likelihood that the challengers could prevail on the merits of their claim.
The judge entered a preliminary injunction regarding early voting for the November 2014 election, the first provisions of which are effective September 30. If the state is to appeal, it will need to move quickly.
Tuesday, July 29, 2014
Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390
A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as Mississippi HB 1390.
The statute required physicians performing abortions to have admitting privileges to a nearby hospital. As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.
Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge. In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.” The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late." Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.
The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi. The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves. Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden. But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right.
Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state. Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:
[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.
Id. at 350. Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights."
In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."
But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.
July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, June 16, 2014
Unanimous Supreme Court Returns Susan B Anthony List v. Driehaus for Decision on Election Law Merits
The Court's unanimous opinion in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements, reversed the Sixth Circuit's determination that the case was not ripe. Recall that Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List, but the Sixth Circuit held the SB List could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."
As we discussed after oral argument, the Justices seemed inclined to find the courts had Article III power to hear the case, although there was some doctrinal fuzziness whether the case should be analyzed as one of "standing" or one of "ripeness." Footnote 5 of the opinion by Justice Thomas for the Court resolves the question firmly in favor of standing:
The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299, n. 11 (1979), we use the term “standing” in this opinion.
The Court reiterated the established criteria: (1) an "injury in fact" (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a likelihood that the injury “will be redressed by a favorable decision," noting that the hurdle for the organization of Susan B. Anthony List was the "injury in fact" requirement. To establish "injury in fact," the organization had to demonstrate the threat of future prosecution by the election board was sufficiently "concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” and "certainly impending,” or there is a “‘substantial risk’ that the harm will occur.”
The shadow of the First Amendment was apparent in the Court's reasoning: "The burdens that [Election] Commission proceedings can impose on electoral speech are of particular concern here."
The Court's relatively short and unanimous opinion breaks no new ground. It draws on establishing standing precedent which it applies in a relatively straightforward manner, and then quickly dispatches the "prudential" rationale for rejecting jurisdiction.
However, it's worth considering as a contrast a case uncited by the Court - - - Los Angeles v. Lyons (1983) - - - in which a deeply divided Court decided that Adolph Lyons did not have standing to challenge the City of Los Angeles police department's sometimes fatal practice of administering a "chokehold" to persons it stopped for traffic violations. As Justice Marshall wrote in the dissenting opinion (joined by Justices Brennan, Blackmun, and Stevens):
Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.
Perhaps Susan B. Anthony List demonstrates that Justice Marshall's view has proven to be correct and that Lyons can now be disregarded. Or perhaps, studies such as this and this are correct that the status of Susan B. Anthony List as an anti-abortion organization and the status of Adolph Lyons as an African-America male confronting law enforcement are just as important as doctrine.
Wednesday, June 11, 2014
In a 16 page "tentative decision" in Vergara v. California, Los Angeles Superior Court Judge Rolf Treu has declared that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education.
The so-called "tenure statutes" challenged in the action are provisions of California's Education Code governing teacher employment, including
- permanent employment statute (§44929.21(b));
- dismissal statutes (§§ 44934; 44938(b)(l) and (2) and 44944);
- and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).
The California constitutional provisions at issue include the state's equal protection clause in Article I §7, and the Article IX provisions relating to Education, including the "general diffusion of knowledge" section, §1 and the requirement that the legislature "shall provide for a system of common schools by which a free school shall be kept up and supported,"§5.
Judge Treu based his decision largely on equality grounds, but noted that the California Supreme Court had previously held education to be a fundamental right. Importantly, the judge found that the trial showed that "there are a significant number of grossly ineffective teachers currently active in California classrooms." Judge Treu also found, although did not elaborate, that there was a "disproportionate impact on poor and minority students." The judge applied strict scrutiny to the challenged statutes.
As to the permanent employment statute, Judge Treu found that it disadvantaged both students and teachers, noting that California's short time frame for tenure - - - less than two years - - - was an outlier: the vast majority of states (32) have a three year time frame.
Regarding the dismissal statutes, Judge Treu noted that dismissal of a teacher could take two to ten years and "cost $50,000 to $450,000," and that while due process for teachers was an "entirely legitimate issue" these statutes provided "uber due process." The judge found that the provisions were "so complex, time consuming and expensive" that the statutes violated the state constitutional equal protection rights of the student plaintiffs.
Likewise, Judge Treu found that the LIFO statute violated the state constitutional equal protection rights of the student plaintiffs. Judge Treu again noted that California was in a distinct minority of 10 states in which this seniority system was absolute and allowed no consideration of teacher effectiveness, with 20 states providing that seniority was a factor, and 19 states leaving the decision to the discretion of government.
Judge Treu's relatively brief decision followed a rather high profile trial financed by a tech entrepreneur. The opinion does not have a full discussion of the facts, especially those supporting the impact on poor and racial minority students.
Vergara is heir to cases such as San Antonio School District v. Rodriguez (1973), in which the United States Supreme Court rejected a challenge to school financing as disadvantaging students of color, and Edgewood Independent School District v. Kirby, in which the Texas Supreme Court found the school financing scheme unconstitutional under the state constitution, including a "general diffusion of knowledge" provision. Yet Vergara turns the focus from state resources to "bad teachers" and can tap into anti-teacher and anti-union and anti-government worker sentiments.
Judge Treu concludes his decision with an invocation of Alexander Hamilton's Federalist Paper 78 on separation of powers, noting that it is not the task of the judiciary to advise the legislature on a solution. But as the history of Texas' Edgewood Independent School District v. Kirby demonstrates, legislative solutions in school equality can have an extended career in the courts.
Most likely, Judge Treu's Vergara decision will itself be subject to further judicial interpretations in the appellate process.
Thursday, May 8, 2014
ConLawProf Sheryll Cashin's new book, Place Not Race: A New Vision of Opportunity in America is just out. In it, Cashin looks at the demise of affirmative action presaged by Supreme Court cases such as this Term's Schuette and last Term's Fisher v. UT, and argues that substituting "place" for "race" in diversity admissions "will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders."
Here's a bit from a longer excerpt on abc:
Race-based affirmative action buys some diversity for a relative few, but not serious inclusion. It doesn’t help to build a movement to attack underlying systems of inequality that are eating away at the soul of our nation. Among other transformations, we need corporations that share more profits with workers and pay them equitably. We need a financial system that doesn’t exploit average people. We need governments that invest wisely in pre-K-12 education and the nonselective higher education that at least half of high school graduates attend. We also need government that does not over-incarcerate high school dropouts of all colors.
Cashin contends that "race" is both over-inclusive and under-inclusive, an analysis that will be familiar to anyone in the affirmative action cases employing strict scrutiny. But Cashin's slant is different. For Cashin, it isn't necessarily that we are post-racial. Instead, "given our nation’s failure to live up to Brown, we have an obligation to acknowledge and ameliorate the injustices of segregation—a moral imperative more important than diversity itself."
An interesting read for anyone considering affirmative action, race, and equality.
Wednesday, May 7, 2014
If the defining issue of the United States is inequality, how is the nation's highest Court addressing that issue?
According to Michele Gilman's new article, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, forthcoming in the Utah Law Review and available on ssrn, the Court is decidely part of the problem rather than part of the solution.
Gilman's article is valuable because it traverses several different doctrinal areas. Obviously, she discusses Citizens United. But - - - refreshingly - - - she argues that "Citizens United is just one piece of a larger problem." She contends that this problem did not begin with the Roberts' Court, as her discussions of Harris v. McCrae, San Antonio Independent School District v. Rodriguez, and Dandridge v. Williams illustrate. Ultimately, she suggests that the Court stands in the way of addressing inequality because the legislative and policy suggestions that have worked in other "affluent democracies" will be deemed unconstitutional in the United States:
We currently have a Court majority that is not only unsympathetic to inequality arguments, but also seemingly oblivious to (or skeptical of) the connection between government policies and market outcomes. The Court has ruled that it is up to the legislative branch, rather than the Courts, to remedy economic inequality. Yet, the Court has doomed legislative enactments that would ameliorate inequality, such as desegregation plans, campaign finance reforms, and consumer protection laws. Conversely, when legislatures enact policies that tend to worsen economic inequality or magnify its effects, the Court defers, such as school financing laws and voter identification requirements. In short, the Court’s rulings consistently sustain policies that create or maintain economic inequality.
Gilman has some explanations for this state of affairs, but, more importantly, she proposes a proactive five point plan of change. This important article is worth a read.
Tuesday, April 22, 2014
The Court's opinion in Schuette v. BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary), clearly upheld Michigan's Proposal 2, enacted as Article I §26 of the Michigan Constitution barring affirmative action in state universities and subdivisions. The plurality opinion for the Court was authored by Justice Kennedy, and joined by Chief Justice Roberts and Justice Alito. Chief Justice Roberts also authored a brief concurring opinion. Justice Scalia's concurring opinion was joined by Justice Thomas. Justice Breyer also wrote a concurring opinion. Justice Sotomayor's impassioned dissent was joined by Justice Ginsburg. Justice Kagan was recused.
The state constitutional amendment was a reaction to the Court's opinion in Grutter v. Bollinger (2003), upholding the University of Michigan Law School's use of diversity in admissions. But since Grutter, the Court has been decidely less friendly to affirmative action, as in Fisher v. University of Texas.
Recall that the en banc Sixth Circuit majority had relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969). At oral arguments, the Justices had seemed hostile to that theory.
Justice Kennedy's plurality opinion for the Court carefully rehearses the cases, but it is probably his rhetoric that is most noteworthy:
This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.
As for Justice Scalia's opinion, it admits that the "relentless logic of Hunter and Seattle would point to a similar conclusion in this case" as the Sixth Circuit understood. However, both Hunter and Seattle should be overruled. Justice Breyer, concurring, would distinguish Hunter and Seattle because Schuette "does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another."
It is Justice Sotomayor's dissent, joined by Justice Ginsburg, that displays the most heft. At more than 50 pages and almost as lengthy as all the other opinions combined, Sotomayor's opinion is an extended discussion of equal protection doctrine and theory, as well as the function of judicial review. In her last section, she also addresses the "substantive policy" of affirmative action and the difference it makes.
The stark division among the Justices is clear. Sotomayor writes that "race matters." Scalia reiterates that the constitution is "color-blind." Roberts implies that racial "preferences do more harm than good." And Kennedy invokes a First Amendment right to debate race:
Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. . . . The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. . . . It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
Given this passage, perhaps it is not surprisingly that Justice Kennedy does not cite Romer v. Evans - - - which he authored in 1996 - - - in today's plurality opinion in Schuette. In Romer v. Evans, Kennedy had this to say about Colorado's Amendment 2, which prohibited the enactment of anti-discrimination laws on the basis of sexual orientation:
It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
Wednesday, April 2, 2014
The Eleventh Circuit's opinion in Arcia v. Florida Secretary of State, Detzner concludes that Florida's program to remove "suspected non-citizens" from the voter rolls in 2012 violated Section 8(c)(2)(A) of the National Voter Registration Act (the 90 Day Provision) which requires states to “complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A).
While the case rests on an issue of statutory application, it raises two constitutional concerns.
First, there are Article III concerns of standing and mootness, with the Secretary of State arguing the court should not exercise jurisdiction over the matter. The standing argument as to the individual plaintiffs focused on the lack of "injury in fact," but the court found that they were directly injured when they were wrongly identified as noncitizens, even though they were not ultimately prevented from voting. Additionally, they had standing to challenge Florida's second attempt to remove voters by showing "imminent injury." The standing argument as to the organization plaintiffs -- Florida Immigration Coalition, Inc., The National Congress for Puerto Rican Rights, and 1199SEIU United Healthcare Workers East - - - was resolved by the court's conclusion applying both a diversion-of-resources theory and an associational standing theory.
The court likewise rejected the mootness argument. Although the 2012 election had certainly passed, the court found that the situation fit squarely within the “capable of repetition, yet evading review” exception to the mootness doctrine. It reasoned that the challenged action fit both prongs of the test: the action in its duration was too short to be fully litigated prior to cessation or expiration; and there is a reasonable expectation that the same complaining party will be subject to the same action again.
The other constitutional aspect of the case involved the interpretation of the federal statute's 90 day provision itself:
We reject Secretary Detzner’s attempts to have us decide today whether both the General Removal Provision and the 90 Day Provision allow for removals of non-citizens. Certainly an interpretation of the General Removal Provision that prevents Florida from removing non-citizens would raise constitutional concerns regarding Congress’s power to determine the qualifications of eligible voters in federal elections. Cf. Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___, 133 S. Ct. 2247, 2257 (2013) (“Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”). We are not convinced, however, that the Secretary’s perceived need for an equitable exception in the General Removal Provision also requires us to find the same exception in the 90 Day Provision. None of the parties before us have argued that we would reach an unconstitutional result in this case if we found that the 90 Day Provision prohibits systematic removals of non-citizens. Constitutional concerns would only arise in a later case which squarely presents the question of whether the General Removal Provision bars removal of non- citizens altogether. And before we ever get that case, Congress could change the language of the General Removal Provision to assuage any constitutional concerns. With this in mind, we will confine our ruling to apply to the plain meaning of the 90 Day Provision and decline Secretary Detzner’s invitation to go further.
The panel opinion, written by Judge Beverly Martin, was not unanimous. While Judge Adalberto Martin joined the opinion, Judge Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by designation, wrote a very brief dissent, simply citing the two federal district court cases on the issue.
Friday, February 14, 2014
Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny. Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and "responsible procreation" coupled with "optimal child rearing" are not satisfactory. The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:
This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.
Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . .
The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.
Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies. Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia. Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal." (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause). Others may contest that there can be "no serious doubt" that marriage is a fundamental right.
Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions: Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit.
But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.
[image: 1848 map of Virginia via]
February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)
Thursday, January 30, 2014
NYC's practice of stop and frisk has been controversial in the streets and in the courts. Recall
that in August 2013, Judge Shira Scheindlin found the New York City Police Department's stop and frisk policies unconstitutional as violative of equal protection. Judge Scheindlin's exhaustive opinion in Floyd v. City of New York was accompanied by an extensive order, setting out remedies, including monitoring. By a very brief opinion, Judge Scheindlin's decision was stayed by the Second Circuit - - - and Judge Scheindlin removed. The Second Circuit later reaffirmed its decision, but in more moderate and explanatory tones.
But before the Second Circuit could issue an opinion on the merits, NYC elected a new mayor, who today announced an agreement in Floyd v. City of New York. Mayor Bill deBlasio (pictured below) announced that NYC has asked for a remand of the appeal to the district court, and has agreed to a court-appointed monitor who will serve for three years, overseeing the NYPD’s reform of its stop-and-frisk policy and reporting to the court.
Thursday, January 23, 2014
As we discussed yesterday, bipartisan legislation has been introduced in Congress that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance, as a response the the Court's holding in Shelby v. Holder that section 4(b) of the VRA was unconstitutional.
Tolson argues that while
there are some aspects of the legislation that may displease civil rights organizations, particularly the exemption of voter identification laws from coverage under the new formula, the proposal is a strong start to address the gaping hole in the preclearance regime created by the Court's decision in Shelby County.
But in some respects, she contends, the proposed legislation may go too far.
She argues that the proposed amendments to section 3(c) of the VRA are "alarming because they place a bull's eye squarely on the back of section 3(c)" as well as section 2. She notes that section 3(c) of the VRA is constitutional precisely "because its intentional discrimination requirement is identical to the constitutional standard for establishing violations of the Fourteenth and Fifteenth Amendments."
She concludes that the "legislative focus should be limited to replacing the coverage formula and leaving section 3(c) alone."
Worth a read for anyone considering the proposed amendments to the VRA and the legacy of Shelby v. Holder.
Wednesday, January 22, 2014
Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance. The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3).
The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years. (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.) This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia.
The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA. Ari Berman over at The Nation has a nice summary.
The new provisions will undoubtedly be challenged when and if they're enacted. On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage. But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.
January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)
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:
Jeremiah Goulka's "How Federal Judges Use and Abuse the Words of Martin Luther King Jr. in Their Decisions," argues that when MLK is quoted in a federal court opinion, it's probably supporting a result that MLK would not have supported.
Goulka describes himself as a former law clerk to a judge on the Fifth Circuit, a former US Attorney and a former Republican - - - important perspectives for evaluating his largely polemical piece. Here's a snippet:
In Vera v. Richards (1994), a panel of three Republican judges considered a Texas redistricting law that created three minority-majority congressional districts. Judge Edith Jones, a Reagan appointee whom both presidents Bush considered elevating to the Supreme Court, opened the decision by stating that the Voting Rights Act of 1965:
"marked the full maturity in American political life of the Founders' idea that "all men are created equal" and the Rev. Martin Luther King's hope that his children would be judged by the content of their character, not the color of their skin."
Ah, yes, the famous "content of their character" line. A little later in her introduction, she continues in the same vein:
"Racial gerrymandering is unconstitutional, but it is also morally wrong, inconsistent with our founding tradition and Martin Luther King's vision. The color of a person's skin or his or her ethnic identity is the least meaningful way in which to understand that person."
I can think of less meaningful ways to understand a person. (Do you like hot dogs?) You can guess which way they ruled.
This is worth a read on this MLK holiday. For a less provocative read, there is President Obama's Proclamation.
Sunday, November 24, 2013
As police and state officials struggle to develop "objective" criteria that might support reasonable suspicion for a stop and frisk in light of constitutional issues (which we last discussed here), relying clothing and other attire may not be a good idea.
Read more on 1584.
Saturday, November 23, 2013
The Second Circuit late Friday entered yet another decision in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., this time on four motions before the panel. Recall that the Second Circuit panel previously entered an opinion clarifying its removal of District Judge Shira Scheindlin after its original brief order issuing a stay and removing her as judge, an occurrence that is apparently not so rare. Judge Shira Scheindlin's opinions and orders in Floyd v. City of New York and in Ligon v. City of New York found the NYPD's implementation of stop and frisk violative of equal protection.
In this most recent order from the Second Circuit panel, it denied NYC's motion to vacate Judge Scheindlin's orders and opinions, rather than issuing a stay. This move by NYC - - - given that a change in mayors is imminent - - - certainly had political interpretations. But whatever NYC's motives, the Court rejected the invitation to vacate the opinions.
The Second Circuit panel also denied the motions seeking intervention by Judge Scheindlin, essentially characterizing them as moot given the panel's clarifying order and the denial of the motion to vacate. However, the panel did take the opportunity to disagree with the motion's representation that the panel did not have access to the transcript of proceedings in the related case upon which it based its findings that Judge Scheindlin may have committed an improper application of the Court’s “related case rule.” The Second Circuit panel stated:
A review of the record of the Court of Appeals, and of the October 29, 2013 extended oral argument in these cases, will reveal that the panel members had the transcript of the December 21, 2007 proceeding in front of them during the hearing, and that they asked questions in open court regarding its substance. For example, during the oral argument, one member of the panel twice referred to the proceedings in detail, and clearly noted that he was quoting from page 42 of the December 21, 2007 transcript. Our October 31, 2013 order specifically cited the transcript by caption, docket number, and date, and it included quotations that had not been reported in the New York Times article that was cited, or in any other public news report known to the panel.
It's interesting that the Second Circuit panel took time to refute the contention with specifics - - - and perhaps it is important that the panel also noted that the assertion that it did not have the transcript was being "echoed" by "other movants in the case," with this citation:
See, e.g., Br. of Amici Curiae Six Retired United States District Court Judges and Thirteen Professors of Legal Ethics, Ligon v. City of New York, No. 13-3123, Dkt. 221, Floyd v. City of New York, No. 13-3088, Dkt. 313, at 14.
The Second Circuit panel surely wants to correct the record about the record on this point.
Sunday, November 17, 2013
Rapper and celebrity Kayne West is selling tour t-shirts with an image of the Confederate flag and provoking controversy, as this video shows:
But what if a student wanted to wear such a shirt to public school?
Last month, the United States Supreme Court denied a petition for writ of certiorari to the Fourth Circuit's decision in Hardwick v. Heyward, thus continuing its refusal to hear cases in which circuit courts have upheld the ability of schools to prohibit Confederate flag gear or apparel against a First Amendment claim by students.
Applying Tinker v. Des Moines Independent Community School District, the circuit and district courts have generally held that there is a likelihood of substantial dispruption, whether or not the school has had a history of racial violence, and whether or not there is agreement that the meaning of the Confederate flag is connected to racism or even race.
More about the issue of wearing the Confederate flag in schools is in my column for the London School of Economics blog.
Thursday, October 31, 2013
In a brief opinion , a panel of the United States Court of a Appeals for the Second Circuit - - -John M. Walker, Jr, José A. Cabranes, and Barrington D. Parker - - - have issued a stay of the decisions of District Judge Shira Scheindlin (pictured right) in Floyd v. City of New York and in Ligon v. City of New York, In both cases, Judge Scheindlin essentially found that the NYPD's implementation of stop and frisk violated equal protection.
The Second Circuit not only stayed the decisions, but also remanded the cases with the order they be assigned to a different judge:
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), [footnote 1] and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. [footnote 2].
In support, the opinion's footnote 1 provides:
In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.
In footnote 2, the court 's "see e.g." cite lists three articles:
- Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013;
- Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013;
- Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013. [*]
While the Second Circuit's panel opinion includes the disclaimer that the judges "intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued," it certainly expresses deep disapproval.
*UPDATE: See Toobin's response to the ruling and use of the article he authored here
Sunday, October 27, 2013
In some states, the statutes are known as anti-Klan statutes, although by their terms they do not limit their coverage to Klan regalia. The Georgia Supreme Court upheld the state's anti-masking statute, O.C.G.A. 16-11-38, against a First Amendment challenge in State v. Miller (1990). Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute, argued that the statute was overbroad. In addressing Miller’s argument, 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.”
Considering New York's anti-masking statute - - - one that has its roots not in Klan activities but was first passed in 1845 and directed at a widespread resistance to farming rents assessed by large estate owners, known as the anti-rent riots - - - the Second Circuit in 2004 similarly upheld the statute against a First Amendment challenge in Church of American Knights of the Ku Klux Klan v. Kerik. 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.
Not limited to the KKK, the anti-masking statute was used in prosecutions of Occupy Wall Street protestors.
But surely, these statutes do not apply on Halloween?
The Georgia statute has a specific exemption for "A person wearing a traditional holiday costume on the occasion of the holiday," while the New York statute does not apply "when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities."
In Louisiana, the statutory exemption for "activities of children on Halloween," and other events such as Mardi Gras, has its own exception for any "person convicted of or who pleads guilty to a sex offense."
Wearing a mask on Halloween may be traditional, but it may not be constitutionally protected.