Constitutional Law Prof Blog

Ninth Circuit Grants Petition for Writ of Habeas Corpus of Death Row Inmate on Equal Protection and Due Process Grounds

In a divided opinion in Ayala v. Wong, the Ninth Circuit today granted a petition for a writ of habeas corpus based on equal protection and due process grounds.  

As the opinion describes, during the

selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his counsel were excluded. The trial judge then accepted the prosecution’s justifications for its strikes without disclosing them to the defense or permitting it to respond.

The failure to disclose the prosecution's rationales and allow defense counsel to demonstrate they were pretextual violates the process the Court mandated in Batson.  In Alaya's case, this was compounded by what the opinion labels  "the state’s later loss of a large portion of the record."  This portion included juror information and the court concluded that because "the state’s loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process."

In a dissenting opinion as lengthy as the majority, Judge Consuelo M. Callahan accuses the majority of not honoring the procedural obstacles to Alaya's claim, of making unwarranted suppositions, and of opening the floodgates.  She writes:

In essence, the majority holds that because the record does not affirmatively negate the existence of a possible racial bias, the existence of such a bias may be assumed. Under this approach all Batson challenges in federal habeas petitions must be granted because no one can disprove a negative.

Yet the converse would also be true, of course.  If Alaya's petition were not granted, it would allow judges to deny all litigants, including criminal defendants, the ability to refute the proffered race-neutral explanation, and to absolutely insulate a Batson claim from appellate review.

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[image: The Jury by John Morgan, 1861, via]

Federal DC Judge Enjoins Small Business Affirmative Action Program as Applied to Military Simulators

In an extensive opinion in DynaLantic Corp. v. United States Department of Defense, Judge Emmet G. Sullivan has enjoined the Small Business Administration and the Department of Defense from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so.

In a nutshell, the judge found that the constitutionality infirmity resided in the agencies' failure to specifically determine "that it is necessary or appropriate to set aside contracts in the military simulation and training industry."  Relying upon City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion), Judge Sullivan stated that " Croson made clear that the government must provide evidence demonstrating there were eligible minorities in the relevant market - in that case, the Richmond construction industry - that were denied entry or access notwithstanding their eligibility," and thus the agencies' lack of specific studies relating to the military simulation industry was fatal.

Yet Judge Sullivan rejected the facial challenge to Section 8(a) of the Small Business Act which permits the federal government to limit the issuance of certain contracts to socially and economically disadvantaged businesses.  The corporation argued that the Section 8(a) program - - - a program that evolved from Executive Orders issued by Presidents Lyndon B. Johnson and Richard M. Nixon in response to the Kerner Commission - - - violated the Equal Protection component of the Fifth Amendment. Applying the rigorous standard of United States v. Salerno, 481 U.S. 739, 745 (1987). requiring that the "challenger must establish that no set of circumstances exists under which the Act would be valid,” Judge Sullivan carefully considered reams of studies, data, and information, as well as the corporation's arguments attacking the provision for being both overinclusive and underinclusive.

This litigation began in 1995 when the Navy determined it would award its contract for a flight simulator for the Huey helicopter (pictured above) through the Section 8 (a) program.  DynaLantic's lawsuit was dismissed for standing, the D.C. Circuit reversed, and then protracted litigation continued as Congress reauthorized the program and a plethora of studies, evidence, and arguments accumulated.

As the educational affirmative action case of Fisher goes to the United States Supreme Court,  DynaLantic is a reminder of the continued legacy of Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), as well as Croson in the government procurement context. 

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[image via]

Fisher v. UT - Amicus from Constitutional Accountability Center

Joined by ConLawProfs Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Nueborne, James Ryan, and Adam Winkler, the Constitutional Accountability Center has filed an amicus brief in Fisher v. University of Texas, the "reverse discimination" case set for oral argument in the United States Supreme Court on October 10.  

Dissenting from the denial of en banc review in the Fifth Circuit, Judge Edith Jones highlighted the panel decision's deviations from Grutter v. Bollinger.  The Constitutional Accountability Center brief argues that UT's policy is constitutional under Grutter, but also makes the wider claim that the "text and history" of the Fourteenth Amendment allows governments to "enact race-conscious measures to ensure equality of opportunity."  

ConLawProfs finalizing their syllabi for the semester might consider integrating the amicus brief, other briefs, or one of the scholarly discussions from Vanderbilt Law Review En Banc for the Equal Protection discussion.

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Federal District Judge Declares Arkansas School Choice Law Unconstitutional

Federal District Judge Robert Dawson declared the Arkansas Public School Choice Act of 1989 unconstitutional on Friday in his opinion in Teague v Arkansas Board of Education.  Judge Dawson concluded that the statute's use of race violated the Fourteenth Amendment's Equal Protection Clause,  largely relying on the Supreme Court's 2007 opinion in Parents Involved in Community Schools v. Seattle School District No. 1, because while there might be a compelling government interest, the statute was not sufficiently narrowly tailored to serve that interest and therefore survive strict scrutiny.

The statutory scheme is a complex one.  Generally, students who attend public school must do so in the school district in which they reside.  This general rule has some exceptions, including the Public School Choice Act.  However, the choice created is generally subject to a race-based limitation: "No student may transfer to a non-resident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district."  However, even this exception had exceptions.  Additionally, the 2011 Legislature amended the School Choice Act to specifically state that the race or ethnicity of a student shall not be used to deny a student the ability to attend a school in the student’s school district of choice if the transfer is "to a school that has been designated by the State as a school performing higher than that in which the student is currently enrolled or to which the student has been assigned."  Moreover,  the statute provided that if conflicts with the provisions of a federal desegregation court order applicable to a school district, the provisions of the federal desegregation court order shall govern.

Interestingly, Judge Dawson used both the 2011 amendment and the escape clause of federal court desegregation orders to support his conclusion that the statutory scheme was not narrowly tailored.  He reasoned that the 2011 amendment was evidence that "some of the state’s lawmakers themselves have determined that the limitation" in the statute "may not pass the strict scrutiny test."  He also stressed that the judicial desegregation order exception undermined narrowly tailored because the statutory scheme "applies state-wide without regard to whether a resident or non-resident school district has a history of de jure or de facto segregation."  Obviously, however, any limitation to school districts under judicial supervision vitiates the need for the statute.

Not surprisingly then, Judge Dawson declared the statutory provision unconstitutional.  More surprisingly, he declared the entre statute unconstitutional, finding that severability is a matter of state law.  Looking at legislative intent, he concluded that severing the provision would undermine the legislative interest, including the legislature’s express statement that inter-district transfer is permissible “provided that the transfer by this student would not adversely affect the desegregation of either district."

 

1958 photo of "the teenagers who integrated Central High School, Little Rock, Arkansas" with NYC Mayor Robert Wagner, by Walter Albertin. Pictured, front row, left to right: Minnijean Brown, Elizabeth Eckford, Carlotta Walls, Mayor Wagner, Thelma Mothershed, Gloria Ray; back row, left to right: Terrance Roberts, Ernest Green, Melba Pattilo, Jefferson Thomas.

Judge Dawson was attentive to the history of school segregation in Arkansas, although he sought to expand the portrait beyond the well-known events in Little Rock that resulted in Cooper v. Aaron:

Arkansas has a complicated history with regard to race relations in general, and equal opportunity education in particular. From resistance in the 1950s to minimum compliance in the 1960s, some parts of the state have fought integration even since the Brown v. Board of Education of Topeka decision. . . . Arkansas is home to both the first public school in the former Confederate States of America to implement racial desegregation (Charleston) and the high  school which drew the nation’s attention in 1957 when the state National Guard was utilized to keep black students from entering Central High School in Little Rock . . .

 The final line of Dawson's 32 page opinion illustrates the continuing legacy of this history: "The Court fully expects this case to be appealed in view of the important issues presented in this case."

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[image via]

PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

As the Washington Post reports, members of the House of Representatives "voted 246 to 168"  on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions.  While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."

PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race."  The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.

As I've written elsewhere:

The specter of sex-­selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-­‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.”  Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-­‐selective prohibitions are not cast as being beneficial to women or assisting decision-­‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.

Indeed, PRENDA's findings on sex include:

(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy.  For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy."  For others, PRENDA may be part of an election year strategy.

For those teaching a summer course in ConLaw, this could be the basis of an excellent problem.  ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.

RR

CFP: AALS ConLaw Section

Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
 
The Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.

The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
 
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.

The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
 
Deadline Date for Submission: August 1, 2012
 
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT pepperdine.edu.

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Saturday Evening Review: Janai Nelson on Felon Disenfranchisement

Felon disenfranchisement is a US reality that conlawprofs from non-US constitutional democracies can find a bit startling.  Its justifications are many, but Professor Janai Nelson considers whether the real motivation isn't "viewpoint discrimination" and if so, whether it is susceptible to constitutional challenge. 

In The First Amendment, Equal Protection, and Felon Disfranchisement: A New Viewpoint, forthcoming in Florida Law Review, available on ssrn, Nelson considers cases regarding viewpoint discrimination in voting regulations, and examines the justifications for felon disfranchisement  "identifying both the perceived viewpoint that legislatures intend to exclude and the viewpoint that is ultimately excised from the electoral process."  She argues:

in the effort to exclude a ―criminal viewpoint, another potential viewpoint, which I term the ―canary viewpoint is excised from the body politic. The canary viewpoint refers to the miner‘s canary whose death signals atmospheric dangers in the mine. In the context of felon disfranchisement, the canary viewpoint results from the intersectionality of race, crime, and low socio- economic status that combine to create the disfranchised population. Random and disparate breaches of the social contract would suggest individual choice rather than systemic group-based causes produce this phenomenon. . . .

Without the benefit of the political participation of those citizens who have failed to uphold the social contract, it is more difficult to understand or attract sustained attention to the root causes of its breach. As a result, democracy functions by silencing those who might signal its failure.

 Of course, any constitutional challenge to felon disenfranchisement must confront Richardson v. Ramirez (1974) in which the Court held that § 2 of the Fourteenth Amendment authorized states to deny voting rights based on a felony conviction.  Nelson argues that Ramirez does not extend to intentional discrimination in the form of vote denial because of how persons (felons) may vote.

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Arizona's SB1070: Day Labor Provisions Violate First Amendment

As portions of Arizona's controversial SB1070, passed nearly two years ago, head to the United States Supreme Court, other provisions remain in litigation in lower courts. 

Two provisions seek to regulate what is generally termed day labor.  One provision makes it unlawful for an occupant of a motor vehicle that is stopped on a street,roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. Another provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic.

In Friendly House v. Whiting, Judge Susan Bolton has just ruled on a renewed motion for preliminary injunction against both these provisions, reasoning that the plaintiffs were likely to prevail on the merits of the First Amendment challenge to the provisions.

Judge Bolton rejected the plaintiffs' contention that the SB1070 provisions were not commercial speech, agreeing with Arizona that the regulated speech did little more than propose a commercial transaction and thus the lesser standard governing commercial speech should apply .  Nevertheless, applying the Central Hudson test, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980), as slightly modified with regard to the last prong when there is content discrimination as in last term's case of Sorrell v. IMS Health, Inc., Judge Bolton held that the provisions were unconstitutional.

On Central Hudson's threshold prong - - - that the communication is neither misleading nor related to unlawful activity - - - Bolton focused on the communication itself, rejecting Arizona's contention that "impeding traffic" was unlawful activity and thus the First Amendment did not apply.  She noted that Arizona did not (and could not) argue that day labor itself was unlawful.

On Central Hudson's government interest prong, Judge Bolton found that the interest of traffic safety easily met the standard of a substantial interest.  With more difficulty, Bolton also found that the restriction directly advanced the substantial interest of safety, even though the ban was content-based and thus "by logical extension underinclusive to some degree."

It was Central Hudson's final prong, especially as modified by Sorrell, that proved fatal to the SB1070 provisions.  Central Hudson provides that the regulation "must not be more extensive than is necessary to serve that interest," while makes clear that the law must not seek "to suppress a disfavored message." 

Judge Bolton reasoned that there were less burdensome means in the pre-existing traffic regulations, and also noted that "S.B. 1070 contains a purposes clause" stating that the intent of the Act "is to make attrition through enforcement the public policy of all state and local government agencies in Arizona” and that “[t]he provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Importantly, she reasoned, "nowhere does it state that a purpose of the statutes and statutory revisions is to enhance traffic safety."  Thus, because the provisions "were created as part of a package of statutes and revisions aimed at perceived problems related to unlawful immigration"  weighs against a finding that the provisions are “drawn to” address a traffic problem.

In weighing the standards for a preliminary injunction other than likelihood to prevail on the merits, Judge Bolton found the balance of equities and the public interest were in favor of injunctive relief.

Thus, the day labor solicitation provisions join the other provisions that have been held unconstitutional, and will most likely also provoke extended litigation.

RR
[image: "Street Art" by Kotzian via]

Supreme Court to hear Fisher v. University of Texas: The Use of Race in Admissions

In a case that might be called the sequel to Grutter v. Bollinger, the United States Supreme Court granted certiorari  today in Fisher v. University of Texas, a suit by a white woman challenging the post-Grutter admission plan at UT. (Justice Kagan recused).  [Update: There's a terrific explanation of the procedural problems with the case, including Art III standing issues, by Adam Chandler].

The dissenting opinion to the denial of en banc review by the Fifth Circuit, authored by the high profile conservative Chief Judge Edith Jones, sets out the arguments against the panel's opinion, 631 F.3d 213, upholding the UT plan, arguing that the panel extends Grutter in three ways.

• First, it adopts a new “serious good faith consideration” standard of review, watering down Grutter’s reliance on strict narrow tailoring.
• Second, it authorizes the University’s race-conscious admissions program although a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity.
• Finally, the panel appears to countenance an unachievable and unrealistic goal of racial diversity at the classroom level to support the University’s race-conscious policy.

Jones continues, arguing that the meaning of "diversity" is less than coherent:

This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires. Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the University’s race conscious admissions program. The state’s Hispanic population is predominately Mexican-American, including not only families whose Texas roots stretch back for generations but also recent immigrants. Many other Texas Hispanics are from Central America, Latin America and Cuba. To call these groups a “community” is a misnomer; all will acknowledge that social and cultural differences among them are significant. Whether the University also misleadingly aggregates Indians, Pakistanis and Middle Easterners with East “Asians” is unclear, but Houston alone is home to hundreds of thousands of people from East Asia, South Asia and the Middle East. In Texas’s major cities, dozens of other immigrant groups reside whose families have overcome oppression and intolerance of many kinds and whose children are often immensely talented. Privileging the admission of certain minorities in this true melting-pot environment seems inapt. But University administrators cherish the power to dispense admissions as they see fit, which might be reasonable except for two things: the Texas legislature has already spoken to diversity, and the U.S. Constitution abhors racial preferences. Because even University administrators can lose sight of the constitutional forest for the academic trees, it is the duty of the courts to scrutinize closely their “benign” use of race in admissions.

 

Jones later states,

The effect of the panel’s wholesale deference becomes clear when one considers the important factual distinction between this case and Grutter. In Fisher, the plaintiffs challenged a post-Grutter University plan whereby 19% of the entering freshman class were subject to a race-conscious admissions process to increase diversity.  As Judge Garza’s concurrence demonstrates, the number of students actually admitted under this racial preference policy is unclear, but it amounted to no more than a couple hundred out of more than six thousand new students. . . . The panel opinion asserts that the University’s admission process is constitutionally acceptable because it is modeled closely after Grutter. Yet the difference is obvious. The Texas legislature statutorily mandated increased diversity in admissions by means of the Top Ten Percent Law. Under that race- neutral law, covering 80% of University admissions, the top ten percent of graduates from every Texas high school were automatically admitted, and many African-American and Hispanic students matriculated to the University. The challenged preferential policy was adopted on top of the unprecedentedly high numbers (compared to many other universities) of preferred minorities entering under the Top Ten Percent Law.

The pertinent question is thus whether a race-conscious admissions policy adopted in this context is narrowly tailored to achieve the University’s goal of increasing “diversity” on the campus. Contrary to the panel’s exercise of deference, the Supreme Court holds that racial classifications are especially arbitrary when used to achieve only minimal impact on enrollment. 

. . .  Finally, in an entirely novel embroidering on Grutter, the panel repeatedly implies that an interest in “diversity” at the classroom level—in a university that offers thousands of courses in multiple undergraduate schools and majors—justifies enhanced race-conscious admissions.

While Justice O'Connor ended the Court's opinion in Grutter with an expectation that  "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,"  it seems that Grutter will be revisited less than a decade later - - - and with O'Connor no longer on the Court and Kagan recused.

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MLK Day 2012

President Obama's Presidential Proclamation on Martin Luther King Day, 2012, includes these words:

At a time when our Nation was sharply divided, Dr. King called on a generation of Americans to be "voices of reason, sanity, and understanding amid the voices of violence, hatred, and emotion."  His example stirred men and women of all backgrounds to become foot soldiers for justice, and his leadership gave them the courage to refuse the limitations of the day and fight for the prospect of tomorrow.  Because these individuals showed the resilience to stand firm in the face of the fiercest resistance, we are the benefactors of an extraordinary legacy of progress.

Today, Dr. King is memorialized on the National Mall where he once spoke, a symbol of how far our Nation has come and a testament to the quiet heroes whose names may never appear in history books, but whose selflessness brought about change few thought possible.  Dr. King's memorial reminds us that while the work of realizing his remarkable dream is unending, with persistence, progress is within our reach.

On the MLK memorial itself, the "drum major" quote has been the subject of controversy and is being "corrected."  The government sponsored MLK Day of Service continues to include the Drum Major for Service Award, as well as the correct/full "drum major" quote:   "Yes, if you want to say that I was a drum major, say that I was a drum major for justice; say that I was a drum major for peace; I was a drum major for righteousness… We all have the drum major instinct.”  Excerpt from The Reverend Dr. Martin Luther King, Jr.'s "Drum Major Instinct" sermon, given on February 4, 1968.

For ConLaw scholars, it might also be a good day to (re)read Randall Kennedy's "Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott," 98 Yale Law Journal 999 (1989) (available on JSTOR) or Camille Nelson's " The Radical King: Perspectives of One Born in the Shadow of a King," 32 New York University Review of Law & Social Change, 485(2008) (available on ssrn), or view MLK's last speech.

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[image: personal collection]

The Constitutional Issues Facing Sheriff Joe Arpaio

Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times.  As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances. 

The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.  

A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails.  In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant.  During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail.  The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments.  The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor.  As a press release from Mendiola-Martinez's attorneys summarizes the law:

The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.

The immunity of Joe Arpaio will surely be raised by his attorneys.  The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests.  The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here.  Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:

24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.

38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.

"You come to court without briefs?" Kozinski chides, waving some papers in the air.

GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.

40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.

This could be a useful bit for ConLawProfs mentoring or judging moot court teams.

In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings.  The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies.  This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997.  In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."

The December 15 letter specifically focuses on Arpaio's role:

Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.

There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.

RR
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

Acension Parish School Board, Redistricting, and Equal Protection: The Fifth Circuit Remands

In Lewis v. Acension Parish School Board, the Fifth Circuit's three judge panel issued as many opinions as there were judges, and remanded the case for further evidence development regarding whether the School Board intended to use racial classifications and whether its actions had a discriminatory effect, citing Washington v. Davis.

The factual background is a complicated one, but essentially the school district sought to both attain enrollment maximums and maintain unitary status, hiring a demographics application specialist who developed various options, conducting public hearings, and doing statistical analysis which included current and projected "enrollment, percentage of African-American students, and percentage of at-risk students at each school in the district" under the options.  The board ultimately adopted the option known as "2f."

The plaintiff Lewis, according to the per curiam opinion, "does not suggest that at-risk students are a suspect class for equal protection purposes. His claim is that minority students are being discriminated against based upon their race by a disproportionate influx of at-risk students into their schools."  The trial court found the adopted plan facially race-neutral, and that Lewis had not presented competent evidence of discriminatory motive by the School Board or disparate impact resulting from Option 2f.  Applying a rational basis test, the trial court found there was  a legitimate government interest in alleviating school overcrowding.  The trial court presumably also found that the means chosen were rationally related, although the Fifth Circuit does not highlight this portion of the necessary analysis.

The per curiam Fifth Circuit opinion reverses this conclusion:

We find the court's analysis troubling for two reasons. First, it is unclear how, on the record before us, the court could make a factual finding as a matter of law about the Board's lack of discriminatory purpose. Second, the court's assumption that it might be justifiable to use racially-based decisions for the "benign" purpose of maintaining post-unitary "racial balance" among the schools in the system is at least in tension with the Supreme Court's decision in Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007).

The per curiam opinion also noted that the question of whether the plaintiff Lewis had standing as to one of the two plaintiff children could be cured on remand.

Concurring, Chief Judge Edith Jones stressed that "race-based student assignments undertaken "to preserve unitary status," like other racially motivated government actions, presumptively violate the equal protection clause." 

Concurring in part and dissenting in part Judge Carolyn King wrote at length after first reasserting that Lewis' claim concerned the effect on minority students of the transfer of at-risk students, quoting from the oral argument.  Judge King agreed with the trial court that Option 2f is race-neutral and that there was no evidence of discriminatory intent.   Judge King then noted that plaintiff Lewis presented no evidence or argument regarding a lack of rational basis and the judge's own "review of the record indicates that Option 2f may have in fact been the most practical option."  Judge King then distinguished the factual scenerio from the one in Parents Involved.

While the judges did disagree about the applicable legal standard and its application, much of the disagreement amongst the judges concerned plaintiff Lewis' precise legal claim.  Thus, it seems that remand is the most appropriate course.  Although it also seems that this case may engender extensive litigation.

RR
[image from the Ascension Parish School Board website via]

 

Bork’s “75 page” Memo to Goldwater on the 1964 Civil Rights Act’s Unconstitutionality?

Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?

Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney.   He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.

Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional.  Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.

When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater.   Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act.   In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate.   Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964.   In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill.  Perry wrote:

The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill.  They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.

 (at 25).

Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians.  The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees.  The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here).  It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964.   As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.

Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files?  Did it ever?     

Almost a half-century has passed.  It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be).  But page-number precise references to a document that is not available is intriguing. 

So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.

RR
[image: Robert Bork, 2007, via]

Albion Tourgee´ Conference

Tourgee´ is best known, by ConLawProfs anyway, as the attorney for Homer Plessy in Plessy v. Ferguson.  For years, I've used Peter Irons' discussion of Tourgee´when teaching the background and litigation of Plessy, including Tourgee´s daring arguments asking the Justices to imagine themselves Black.

 

The Center for the Study of the American South at UNC-Chapel Hill will be hosting what looks to be an exciting conference, “A Radical Notion of Democracy: Law, Race, and Albion Tourgée, 1865-1905,” that "recalls the legacies of Reconstruction to offer insight into ongoing policy debates."

The one day Public Law and Humanities Symposium is Friday November 5 in Raleigh, NC.  Registration and program details here.

RR
[image via]

Columbus Day: The "Doctrine of Discovery"

The celebration of Columbus Day is controversial in many quarters.  Professor Robert Williams' article, Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, 8 Ariz. J. Int'l & Comp. L. 51, available on ssrn, is an exploration of that controversy important to ConLaw perspectives.

Williams conects the three core principles of constitutional Indian Law - - - the Congressional Plenary Power doctrine, which holds that Congress exercises a plenary authority in Indian affairs; the Diminished Tribal Sovereignty doctrine, which holds that Indian tribes still retain those aspects of their inherent sovereignty not expressly divested by treaty or statute, or implicitly divested by virtue of their status; and the Trust doctrine, which holds that in exercising its broad discretionary authority in Indian affairs, Congress and the Executive are charged with the responsibilities of a guardian acting on behalf of its dependent Indian wards - - -to the medieval legal intellectual origins of these foundational doctrines that animated Columbus' ability to "claim" the "discovered" lands of the Americas for European sovereigns.

The article is an excellent exploration of these foundational doctrines. Williams discusses the first "Indian case," Johnson v. McIntosh, written by Justice Marshall in 1823, in which the Court considered a dispute of title between persons who had received their title from Indians and those who had received their title from the United States several decades later.  Williams explains the outcome:

The Court held in Johnson that Indian tribes had no power to give title to lands to private individuals recognizable in a United States court. Marshall's opinion for the Court in Johnson relied exclusively and directly upon the medievally-derived legal tradition of European Christian Crusading conquest and denial of non-Christian infidel peoples' rights brought to the New World by Columbus. . . .  Under this doctrine, recognized and enforced as part of the Law of Nations by the European colonizing nations, discovery of territory in the New World gave the discovering European nation, in Marshall's words, “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” England's title to North America, as Marshall recognized, was asserted under this Doctrine of Discovery, and therefore had devolved to the United States as a result of its victory in the Revolutionary War. Thus, Marshall reasoned that the non-Indian plaintiffs' purchases of lands directly from the Indian tribes, without the approval or sanction of either the original discovering European nation, England, or its successor in interest, the United States, could not be sustained as valid in a United States court of law.

Writing in the quincentennial year of the Columbus "discovery," Williams noted that it was important to confront this continuing legacy of legal doctrines such as "discovery" and their theoretical underpinnings in Christian dominance and racism in order to realize our "contemporary concerns of creating a multicultural society of equal law and justice for all peoples, regardless of their race, cultural or religious beliefs and practices."

Good reading for Columbus Day!

RR
[image: "The Landing of Columbus, 1492, from Library of Congress, via]

In Memoriam: Derrick Bell

ConLaw Prof Derrick Bell died yesterday at the age of 80.  As the NYT obit reports, Bell was known for his scholarly works, for his pioneering of critical race theory, for storytelling as scholarship, for being ethical, and for leaving a position at Harvard Law.  While the obit certainly does mention that Bell was a law professor, it does not emphasize that he was also a teacher. 

Bell's writing on Constitutional Law pedagogy deserves continuing attention.  Here is an excerpt from his 1998 essay published in Seattle University Law Review,  Constitutional Conflicts: The Perils and Rewards of Pioneering in the Law School Classroom:

By departing from the norm in constitutional casebooks and giving priority to "learning by doing" simulations, students mimic the kind of process that an attorney, researching an unfamiliar area of law, might utilize to investigate prior decisions. In practice, lawyers are called to research and to write; to comprehend legal arguments; to guess at the probable effect of and interaction between judicial, statutory, legal and policy arguments in court; to argue, persuade and debate; to work cooperatively with colleagues; and for some, to judge those arguments and decide cases and issues of law. This is as true in the practice of constitutional law as in any other. Once their research skills are in place, most students are aware that they have the capacity to learn, relatively quickly, whatever they need or want to know regarding any legal question.

Bell's Constitutional Conflicts was a casebook of sorts, modeled on this method to achieve active learning and participation.  His students seemed to thrive in the "Court of Bell."

For some law professors putting together such material and assessing the student products would deflect from their scholarly agenda.  But Derrick Bell took pedagogy as seriously as he took his many scholarly projects and his lecturing schedule.  Or maybe not so seriously: One of my fondest memories of him was as a co-panelist on an AALS Teaching section plenary, when he replied to a question by saying that teaching was fun.  And then he whispered to me that perhaps we'd better not tell everyone how much fun it really is.

RR
[image: Derrick Bell via]

Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?

Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues. 

Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."

The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.  

More information, including registration information is here.  The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18. 

RR

Anita Hill Conference

Anita Hill 20 Years Later: Sex, Truth, and Power, a conference, will be held on Saturday, October 15, 2011 at Hunter College, City University of New York, NYC.

Speakers include Devon Carbado, Lani Guinier, Judith Resnik, Charles Ogletree, Patricia J. Williams, and many others, with a Keynote by Anita Hill.

 

 

Registration Information here.

RR

Alabama Immigration Law HB56 Enjoined by Federal Judge

UPDATE HERE

In a very brief Order issued late today, Judge Sharon Lovelace Blackburn, Chief Judge of the Norther District of Alabama, enjoined the enforcement of HB56:

 

Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first.

The Order comes in the consolidated cases of Hispanic Interest Coalition of Alabama v. Bentley; Parsley v. Bentley, and United States v. Bentley.   We've previously discussed each of these three lawsuits have been brought against the controversial HB 56. 

The Hispanic Interest Coalition case began with a 118 page complaint filed early in July raises eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First Amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and two Sixth Amendment claims. 

Parlsey v. Bentley is the clergy complaint centering on the First Amendment Free Exercise Clause. 

United States v. Bentley marks the DOJ's entry into the controversy, raising Supremacy Clause arguments as might be expected.

The law was scheduled to go into effect September 1. 

RR
[image: Map of Alabama, circa 1832, via]