Saturday, November 30, 2013

Qualified Immunity and the First Amendment Right to Record Police

The title of this post comes from this article arguing that judges in First Amendment civil rights cases in which the plaintiff recorded public police activities should first determine the merits of the plaintif's claim. Only after the court has considered the merits should it proceed with defendants' claims to qualified immunity. Here's the abstract:

Recording-policeThis draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity.

The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public. Two recent Circuit Court cases, Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (U.S. 2012), and Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), have affirmed such a right. While the First and Seventh Circuits have laudably addressed the merits of whether the right exists, all other circuits to address the issue have decided only on immunity grounds, i.e. whether the right is “clearly established.” The focus on immunity has a chilling effect on free speech, in particular the role of citizens to oversee law enforcement officials. The article calls for a return to Saucier's merits-first adjudicatory model in First Amendment civil rights cases to avoid chilling such protected speech.

CRL&P related posts:


November 30, 2013 in 42 U.S.C. § 1983, Civil Rights Litigation, First Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 30, 2013

Three-judge panel reverses dismissal favoring City of Chicago in case alleging it responds more slowly to 911 calls made by Blacks and Hispanics.

WaPo explains how recent abortion decisions affected the Senate's debate over the filibuster.

Columbus Dispatch explores Ohio Bureau of Motor Vehicles panel criteria for reviewing vanity plates.

Voting rights activists claim Los Angeles County redistricting discriminates against Latinos; and, Cleveland Plain Dealer editorial board says pending voting bills restricting early voting and mandating ballot uniformity are voter suppression measures.

French parliament wants to impose new fines on solicitors of prostitution services.


November 30, 2013 in Abortion, Election Law, First Amendment, Freedom of Speech, Right to Vote | Permalink | Comments (0)

Friday, November 29, 2013

Six months after Dallas council’s heated gay-rights discussion, the subject will return to the horseshoe

The Dallas Morning News reports that the city again will consider a resultion to legalize same-sex marriage. The title of this post comes from the article, which begins:

Six months after the Dallas City Council's heated and ata times personal dust-up over that marriage equality resolution Mayor Mike Rawlings has beed dodging for close to two years, the subject will finally return to the horseshoe on Monday.

And as promised in June, it will go to the Budget, Finance & Audit Committee, where interim assistant city manager Theresa O’Donnell and assistant city attorney John Rogers will make a presentation titled Status on Defense of Marriage Act (DOMA) Impact, which you can sneak-peek in full below.

O’Donnell says committee chair Jerry Allen initially asked her to help with the briefing; she told him Budget, Finance & Audit was the perfect place for it, because, as she says, “that’s what marriage is about — financial security for your family.” She recruited Rogers to help.

Rogers and O’Donnell are among the openly gay city staffers featured in the city's "It Gets Better" video posted earlier his year. And she’ll admit the two have “a vested interest” in the subject. Which is precisely why they initially hoped to get a college professor — “an impartial speaker” — to brief the council. But after profs from SMU, the University of Texas and Texas A&M University couldn’t clear their Monday schedules, Rogers and O’Donnell decided to do it themselves.


November 29, 2013 in Same-sex marriage | Permalink | Comments (0)

Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe

The title of this post comes from this paper examining the Supreme Court's early interpretations of Section 1983 and how changed social circumstances influenced the outcomes of these cases. Here's the abstract:

Section 1983, enacted in 1871, famously provides a damages remedy against state and local government officials and local governments for violations of constitutional rights. But it was only in 1951, in the seminal decision of Tenney v. Brandhove, a legislative immunity case involving an admitted Communist, that the Supreme Court for the first time expressly interpreted the language of section 1983. Ten years later, in 1961, the Court handed down another seminalsection 1983 decision: Monroe v. Pape involved a section 1983 claim brought by an African-American alleging police misconduct. Both cases pitted two influential Supreme Court justices and FDR appointees, Felix Frankfurter and William Douglas, against one another in majority and dissenting opinions. Justice Frankfurter was an unremitting advocate of federalism, deference to politically accountable bodies, and judicial restraint. In contrast, Justice Douglas was an ardent proponent of individual rights who had relatively little concern for federalism.

I tell of the birth of section 1983 jurisprudence through the stories of these two cases. Their stories are contained in the papers of Justices Frankfurter and Douglas and in their majority and dissenting opinions. They are also contained in the parties’ petitions for certiorari and briefs and in Monroe’s oral argument. Finally, these stories can only be understood against the background of the political and social settings in which Tenney and Monroe arose. The Cold War and anti-Communist sentiment situate Tenney while the Civil Rights movement and the post-Brown era situate Monroe.

These stories are of interest both to section 1983 scholars and to historians of civil rights and constitutional law. First, Justice Frankfurter played an outsized role in both decisions. Second, these decisions demonstrate that the early and deep tension between individual rights and federalism — a tension that began with the Fourteenth Amendment and continues to this day — was present at the very beginning of the development of the Supreme Court’s section 1983j urisprudence. The certiorari petitions and briefs in these cases and the oral argument in Monroe also articulate this tension. Finally, the different political and social contexts in which Tenney and Monroe were decided illuminate the decisions themselves.


November 29, 2013 in 42 U.S.C. § 1983, Civil Rights History | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 29, 2013

Thursday, November 28, 2013

CRL&P Thanksgiving Reads: Nov. 28, 2013

NSA has been monitoring the porn-watching habits of suspected radicals, which The Atlantic's Friedersdorf claims is bad for democracy; NSA soon will be split up; The Progressive discusses 'The NSA's New McCarthyism'; Ambinder has a cool NSA org chart; and, Nice, Canada. Real nice.

Cleveland Plain Dealer calls on Senate to oppose pending stand-your-ground bill; Iowa gun club will remain next to school; and, woman sentenced to 20-years in prison after firing a warning shot to deter her allegedly abusive husband released the night before Thanksgiving.

Congresswoman Fudge asks Holder to investigate Ohio's new voting laws; African-American youths pay higher 'time-tax' at the polls; and, Kentucky could be the next state to enact a voter ID law.

Federal judge decides NYPD must proceed with case of Occupy protester claiming an officer grabbed her breast.


November 28, 2013 in Civil Rights Litigation, Election Law, First Amendment, Fourth Amendment, Gun Policy, Right to Vote, Voter ID | Permalink | Comments (0)

Bad Behavior Makes Big Law: Southern Malfeasance and the Expansion of Federal Judicial Power, 1954-1968

The title of this post comes from this paper arguing that the Warren Court's confrontations with Jim Crow and Southern legal authorities more expansively transformed American jurisprudence than contemporary narratives suggest. Here's the abstract:

The story of the Warren Court’s impact on the U.S. South is of course far larger and more wide-ranging than just the direct legacy of Brown v. Board of Education. Indeed, this is a question of not just “Beyond Brown,” or, better yet, “Beyond Brown and Baker,” but of appreciating how the obstructive behavior of the South, in the face of Warren Court rulings, affected the wider judicial decision-making of the Court just as much as the Court’s holdings altered so many aspects of southern life, both public and private.

Brown is a major part of that story, as is Baker and its decisive, Deep South progeny, Reynolds v. Sims. Yet there are at least four other important and often-overlooked chapters in this story as well: first, the Court’s own frightful and halting behavior in other, little-known and sometimes tragic race cases in the immediate wake of Brown; second, the ways in which the Court’s belief in racial equality significantly spurred its efforts to reform criminal justice procedures nationwide; third, the tremendously under-appreciated manner in which the activism of the southern Black freedom struggle stimulated the Court to vastly expand federal judicial jurisdiction in ways that helped protect the constitutional rights of any citizen prosecuted in a southern state court; and fourth, the degrees to which even ostensibly unrelated areas of substantive federal law, ranging from First Amendment rights of association, to the law of libel, to the procedural protections afforded public aid recipients, all were likewise transformed on account of the collision between the Warren Court and white public authorities in the South. All told, that larger story is one whose scope far exceeds the standard narrative about Brown and race, or even the more expansive one about Brown and Baker’s explicitly shared grounding in the fundamental guarantees of the Equal Protection Clause.


November 28, 2013 in Civil Rights History | Permalink | Comments (0)

Wednesday, November 27, 2013

How Marriage Inequality Prompts Gay Partners to Adopt One Another

The Atlantic's Koa Beck documents how historical bans on same-sex marriage have prompted some couples to adopt one another in an effort to gain legal protections denied because of their sexual orientation. Although achieving minimal protection of their assets, these efforts also have unintentionally reinforced misperceptions as to the morality of same-sex couples.

The title of this post comes from Beck's article, which begins:

The queer community has been dubbed as "perverse" since long before gays were dragged from The Stonewall Inn and beaten for their orientation.

Because of historical opposition to gay marriage, long-term, same-sex couples have a history of adopting one another for legal protection—the arrangement Liberace promised Scott Thorson in Behind The Candelabra during one of the high points in their jewel-encrusted relationship. The adopting of one's partner was a direct response to laws for estate, taxes, and wills that have failed to recognize same-sex partnerships. But in fact, it's heterosexist policies that prompted many notably "deviant" couples from history to engage in what could be considered incest, essentially further "deviance."

As late as June 2013, a 65-year-old man legally adopted his 73-year-old partner in Pennsylvania for financial protection because marriage was not available to them. The couple told ABC News that they were primarily concerned about Pennsylvania’s inheritance tax, which could make one partner liable for a 15 percent tax on the estate (as opposed to 4 percent if they pushed ahead with adoption). Men of this vintage can't sit around and wait for marriage equality to show up, so they've legally changed their relationship from partners to father and son.

They're in excellent company. Robert Allerton, the wealthy son of the founder of First Chicago Bank, openly adopted his partner, John Gregg, in 1959 following a change in Illinois law that permitted adult children to be adopted. Gregg was a 22-year-old orphan who met 49-year-old Allerton at a pre-football game lunch at the University of Illinois in the decadent 1920s. Gregg was studying architecture when he wandered into the Zeta Psi fraternity house, to which many brothers had brought their fathers. On meeting his future long-term companion/legal father, Gregg famously said in 1984, "Robert Allerton was invited over there for lunch, and he didn't have a son and I didn't have a father, so we were paired off and lived happily ever after."


November 27, 2013 in Same-sex marriage | Permalink | Comments (0)

The Third Amendment, Privacy and Mass Surveillance

The title of this post comes from this article arguing that the Third Amendment could serve to protect individual privacy interests against instrusion by 'cybersoldiers' serving the country's national security interests. Here's the abstract:

We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow. 

The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage. 

Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. A sitting Secretary of State even recently acknowledged that the government has “sometimes reached too far” with its surveillance. The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain. 

This paper argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law. 

Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities on and around private residences or businesses in an intrusive way – or using proxies to do so -- that would serve as the functional equivalent of military quartering in the civil community.


November 27, 2013 in Fourth Amendment, Web/Tech | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 27, 2013

Revelations about the extent of the NSA's surveillance program could put international data-sharing agreements at risk; federal judge hears arguments regarding the release of DOJ documents on the legality of NSA's surveillance program; The Atlantic explores the inception of the NSA; and, Microsoft will change encryption to prevent NSA surveillance.

Texas National Guard will allow same-sex couples to apply for benefits immediately; gay teen banned from mall at which he allegedly was attacked; Kentucky couple fined one cent for remaining in county clerks office after closing time to protest same-sex marriage ban; and, judge okays terminally ill woman's request to marry her female partner before Illinois same-sex marriage law becomes effective.

Colorado Democrat resigns after gun-rights advocates successfully petition for her recall; and, Plain Dealer guest columnist argues that Ohio legislature should pass gun-safety laws to prevent children from accessing guns.

Voters claim Lousiana segregated African Americans into one racially-gerrymandering congressional district.

SCOTUS to hear arguments as to constitutionality of ACA's contraceptive rule; and, it will consider the First Amendment rights of Bush protesters alleging official's attempts to disperse them were not supported by valid security interests.


November 27, 2013 in Department of Justice, Election Law, First Amendment, Fourth Amendment, Freedom of Assembly, Freedom of Press, Freedom of Speech, Gun Policy, Same-sex marriage | Permalink | Comments (0)

Tuesday, November 26, 2013

Julian Assange unlikely to face U.S. charges over publishing classified documents

The title of this post comes from this Washington Post article reporting that WikiLeaks founder Julian Assange is unlikely to face criminal charges for releasing classified documents. The article begins:

The Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists, according to U.S. officials.

The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations.


November 26, 2013 in Department of Justice, First Amendment, Freedom of Press | Permalink | Comments (1)

Woman sues officer who repeatedly applied mace to her genitals

The title of this post comes from this Raw Story article reporting that a New Mexico corrections officer used cruel and unusual punishment when she allegedly sprayed mace on an arrestee's genitals. Here's the story:

Last week, the American Civil Liberties Union of New Mexico filed a federal lawsuit on behalf of Marlene Tapia against Blanca Zapater, the corrections officer that Tapia alleges subjected her to cruel and unusual punishment while violating her right to due process.

According to the suit, on November 22, 2011, Zapater was arrested on a suspected parole violation. During a routine strip search, Zapater and another corrections officer “observed a plastic baggie protruding from Ms. Tapia’s vagina.”

Instead of asking her to remove the package, Zapater allegedly “sprayed a chemical agent directly on Ms. Tapia’s genitals twice,” despite the fact that “Ms. Tapia was not using or attempting to use any force against the corrections officers.”

The suit claims that this spraying “served no purpose other than to punish” and “would not cause the baggie to become dislodged.” The effects of the application of this chemical agent lasted for several weeks and included “burning, swollen genitals, painful urination, and pain and burning on Ms. Tapia’s face.”

The ACLU is seeking punitive damages, to be determined by a jury, for these alleged violations of Tapia’s Eighth and Fourteenth Amendment rights.

(h/t Jonathan Turley)

November 26, 2013 in 14th Amendment, Civil Rights Litigation, Prisons and Prisoners | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 26, 2013

African American judge alleges that UCLA police used excessive force when they stopped him ostensibly for not wearing his seat belt.

NSA likely accessed Google and Yahoo user data through fiber-optic cables used to connect data centers; Guardian columnist says NSA's surveillance program demonstrates hypocrisy of 'Five Eyes' countries; U.S. officials worry that Snowden might still have a large cache of intelligence data; and, Jeff Jarvis wades through more hero/villain-talk regarding Snowden.

The Week examines the recent difficulties of anti-abortion groups at the polls.

Mississippi Democrats say new voter ID law will hurt both parties, but the state is ready to start issuing voter ID cards.

Civil rights group updates its app for reporting TSA complaints.


November 26, 2013 in Abortion, Election Law, Excessive Force, Fourth Amendment, Right to Vote, Voter ID | Permalink | Comments (0)

Monday, November 25, 2013

Malicious Prosecution Claims in Section 1983 Lawsuits

The title of this post comes from this note arguing that the Supreme Court wrongly decided in Albright v. Oliver, 510 U.S. 266 (1994), that malicious prosecution claims in Section 1983 actions are properly considered under the Fourth Amendment. Here is the abstract:

There is little certainty among the federal courts as to how the tort of malicious prosecution and 42 U.S.C. § 1983 interact. In Albright v. Oliver, the Supreme Court suggested that the Fourth Amendment was the proper vehicle for analyzing malicious prosecution claims in Section 1983 actions. But the continuing confusion among the lower courts is some evidence that the Court’s answer was unsatisfactory. This Note hopes to provide some clarity to this muddied area of the law and explain why the Court’s decision in Albright was wrong. Part I surveys the history of malicious prosecution and Section 1983, as well as the Supreme Court’s opinion in Albright and the subsequent circuit split among the Courts of Appeals. Part II then proceeds to explain why the Court’s decision to use the Fourth Amendment to incorporate malicious prosecution made little sense, and why the Fifth and Fourteenth Amendments provide better alternatives. It also examines the implications of using the different amendments, and whether it matters if these questions are resolved by federal courts. Finally, Part III analyzes two distinct claims made in the literature which rest on the premise that Albright was correct, and explains why there are critical flaws in each of these arguments.


November 25, 2013 in 42 U.S.C. § 1983, Fourth Amendment | Permalink | Comments (0)

The New Speech

The title of this post comes from this fascinating article inquiring into the potential for First Amendment challenges as technological developments produce new speech platforms. Here's the abstract:

Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?

6373_K0wXihVG_o-600x424Each of these questions implicates the First Amendment, and as each question reveals, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 confront digital speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by massive computers controlled by powerful institutions: petitions in front of the shopping mall replaced with “Likes” on Facebook and “Votes” on Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators.

As more of the activities that were once exclusively the province of the physical world become the province of the digital, more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in speech. While the great speech debates of the twentieth century were about the content of speech — that is, what one could say — the great speech debate of the twenty-first century will be about what counts as speech and whose speech counts. Will it be that of institutions and algorithms, or individuals and organic communities?

These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.

This Article is an effort to explore the ways in which speech platforms represent a new challenge to the First Amendment, one that will require it to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.


November 25, 2013 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 25, 2013

Sunday, November 24, 2013

CRL&P Daily Reads: Nov. 24, 2013

Saturday, November 23, 2013

Categorically Black, White or Wrong: 'Misperception Discrimination' and the State of Title VII Protection

The title of this post comes from this article arguing that denying Title VII protection to victims of "misperception discrimination" in employment settings produces negative and unintended consequences in contravention of the statute's purpose. Here's the abstract:

This Article exposes an inconspicuous, categorically wrong movement within anti-discrimination law. A band of federal courts have denied Title VII protection to individuals who allege "categorical discrimination": invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of "misperception discrimination" is beyond Title VII’s scope. Accordingly, Title VII protection is only extended to such a plaintiff if she is "actually" Muslim or brings forth allegations of invidious, differential treatment based upon her actual Christian identity. This Article argues that these judicially created prerequisites to Title VII protection are categorically wrong. They impose a new "actuality requirement" on Title VII plaintiffs in intentional discrimination cases that engenders unfathomable results. Plaintiffs who suffer from invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against discrimination if they fail to prove their actual religious, gender, ethnic, racial, or color identity upon defendant-employers’ challenge.

Though this Article primarily examines the imposition of an actuality requirement in misperception discrimination cases, this Article also demonstrates that courts have considered and imposed an actuality requirement in conventionally framed discrimination cases as well. Accordingly, this Article is the first to enumerate the development of, and myriad justifications for, the actuality requirement in cases of categorical discrimination. This Article argues that some courts’ imposition of an actuality requirement in misperception and conventionally framed discrimination cases denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly fifty years after its enactment — an interpretative methodology that this Article is first to describe as "anti-anticlassificationist."

This Article also highlights a few critical, negative implications of courts’ anti-anticlassificationist interpretation of antidiscrimination law. Namely, it examines the emergence of a minimalist "actuality defense" and resulting identity adjudication, which obfuscates the chief issue in intentional discrimination cases: whether the plaintiff suffered unlawful, invidious, differential treatment. Additionally, this Article illuminates that courts’ anti-anticlassificationist interpretation and attendant actuality requirement have in fact resuscitated age-old trials of racial determination. They have thereby produced an additional destructive consequence by reifying race as a stable, biological construct.

Consequently, this Article proposes fresh, practical, and theoretical interventions to cease the continued anti-anticlassificationist interpretation of Title VII. In doing so, this Article excavates previously unexplored Title VII statutory provisions, longstanding EEOC directives, Fifth and Third Circuit precedent, and recent Supreme Court precedent. Properly read, these sources will show that a prerequisite showing of actuality in cases of categorical discrimination under Title VII is wrong. Thus, this Article affirms that all categorical discrimination plaintiffs — that is, all individuals who have allegedly suffered discriminatory treatment on the basis of their actual or mistaken religious, gender, ethnic, racial, or color identity — are entitled to vindicate their statutory rights to be free from unlawful discrimination.


November 23, 2013 in Civil Rights Act | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 23, 2013

Friday, November 22, 2013

AALS Scholarly Paper Award winner examines how sit-ins challenged role of courts

The Association of American Law Schools recently announced that Christopher W. Schmidt has won its Scholarly Paper Award for his article examining how the views of parties to the conflicts of the

Civil Rights Movement differed as to the judiciary's role in reforming (or not) the law. Titled Divided by Law: The Sit-Ins and the Role of the Courts in the Civil Rights Movement, Schmidt's paper evaluates how the interaction of various perspectives affected movement organization and related outcomes.

Here's the abstract:

The lunch counter sit-in movement of 1960 was a contest not only over nondiscriminatory access to public accommodations, but also over the role of the courts in the developing civil rights movement. The students who launched the sit-ins explicitly defined their protest as an alternative to litigation-based reform tactics. Leading civil rights lawyers, in contrast, urged the students to rely on the judicial process. White business owners and local officials also divided over whether criminal prosecution of the protesters would best serve their interests. These divergent attitudes toward the courts derived from differences of strategy and ideology. They were also affected by developments in Fourteenth Amendment doctrine: by 1960, whether the non-discrimination principle of Brown v. Board of Education reached (or would soon reach) privately owned public accommodations was an open question. Conflict over the appropriate role of the courts ultimately worked to the students’ advantage. It contributed to their collective identity as a protest movement, helped secure outside support, and divided their opponents. Attention to the expectations diverse people placed upon the courts offers a vehicle for charting the ways law and perceptions of law shaped the sit-in movement at various levels—in the streets as well as the courts, among laypeople as well as lawyers and judges. This approach suggests new insights into the intersection of formal legal change and social movement mobilization.

Congratulations Professor Schmidt!

CRL&P related posts:


November 22, 2013 in Civil Rights History | Permalink | Comments (0)

Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty

The title of this post comes from this intriguing article challenging the current lack of safeguards against discrimination in death penalty proceedings. Here's the abstract:

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional. 

Death is different as a punishment. But does discrimination change from context to context? That is the message courts send when discrimination is judged differently based on the context, despite the United States Supreme Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” No equivalent safeguards exist in criminal law outside of jury venire to protect against discrimination as there are in civil law. Congress and state legislatures have tried to pass legislation often called “Racial Justice Acts” to provide additional safeguards with little to no success. With the legislature’s lack of success in addressing the problem, the only opportunity to address discrimination claims may be judicially.


November 22, 2013 in 14th Amendment, Equal Protection Clause, Theories of Punishment | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 22, 2013

Thursday, November 21, 2013

Remembering Tinker: The right to vote as expressive conduct

A CRL&P reader recently brought to my attention the Tinker Tour, an ongoing event by the Student Press Law Center to educate students about their First Amendment rights. The tour commemorates Unknown-2the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, in which the court affirmed the First Amendment right of high school students to wear black armbands in protest of the Vietnam War.

On Tuesday, Mary Beth and John Tinker visited their former high school to speak to students. The Des Moines Register reports:

The Tinkers were among five Des Moines students suspended in December 1965 for wearing the black armbands.

The siblings received hate mail after their 1965 suspension. The window of the family car was shattered by a brick. Someone threatened to bomb their home. But with the help of American Civil Liberties Union attorney Dan Johnston, they continued to fight for their rights.

After attempts to repeal the decision were shot down by the local school board, the Tinkers, along with then-16-year-old Roosevelt High School student Christopher Eckhart, took their case to court.

The resulting 7-2 U.S. Supreme Court decision guaranteed that students today have the right to express their opinions without fear, said Mike Hiestand, an attorney with the Virginia-based Student Press Law Center, a sponsor of the Tinker Tour.

Tinker is particularly interesting for what the case says--or doesn't say--about what expressive conduct qualifies as speech under the First Amendment, which, of course, depends on context. Writing for the Court, Justice Fortas found "that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment"; the wearing of the bands "was closely akin to 'pure speech.'" Ibid. at 505. Specifically, the Court observed that the students wore the "black exhibit opposition to this Nation's involvement in Vietnam" at a time when the justness of that involvement was being hotly debated. Ibid. at 510-11. ("They wore [the armbands] to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them." Ibid. at 514. ). "[W]e do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet," wrote Justice Fortas. Ibid. at 513.

CRL&P readers know that I believe that the right to vote ought to be protected First Amendment speech. The Tinker case is another example of protected expressive activity that does not materially differ from public voting.

Although voters today choose candidates on the basis of a complicated set of policy issues, this certainly was not the case in the American colonies and the early American Republic. In Voting in Provincial America, Robert J. Dinkin emphasizes "the major concerns of the state were confined to providing defense against external enemies and keeping internal order." As such, the task of voters "was to choose from among rival candidates the men he believed to be the best leaders[.]"

At that time, voting itself had persuasive value. As Richard R. Beeman describes in his book The Varieties of Political Experience in Eighteenth-Century America, viva voce voting commenced with the most prominent men voting first. As such, candidates hoping to win elections would court these men in hope that their support on Election Day would convince voters down the line to support them. George Washington learned this lesson the hard way, losing his first election badly. But, he changed his strategy, and several years later won a seat in the House of Burgesses. As Beeman wrote: "The strategy of marshaling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on."

Public voting evinced voters' support for candidates and parties, and such practices continued until the end of the 19th century. The Court has granted First Amendment protection to similar expressive acts, as it did in Tinker. Now, the Court ought to extend such protection to the right to vote as well.

For more on the Tinker's story, see Kali Borkoski's commentary on SCOTUSblog.

CRL&P related posts:


November 21, 2013 in First Amendment, Freedom of Speech, Right to Vote, Schools | Permalink | Comments (1)

CRL&P Daily Reads: Nov. 21, 2013

Wednesday, November 20, 2013

Ohio House passes gun bill with "stand your ground" provision after lengthy debate

The title of this post comes from this article from The Cleveland Plain Dealer, which begins:

After an impassioned debate, the Ohio House of Representatives on Wednesday approved legislation that would make sweeping changes to the state’s concealed-weapons laws, including a so-called “stand your ground” self-defense provision.

With the 62-27 vote, the legislation now heads to the Ohio Senate.

Supporters of House Bill 203 said it contains a number of changes designed to shore up Second Amendment rights, cut red tape, toughen rules for concealed handgun permits, and expand recognition of Ohio’s conceal-carry permits to other states.

But Democratic legislators warned that a so-called “stand your ground” self-defense provision would lead to greater gun violence in the state, particularly against minorities.

The stand-your-ground provision would eliminate Ohio's law requiring a person to retreat before using deadly force in self-defense. Under current Ohio law, residents have no duty to retreat only when they are in their homes, cars, or the vehicles of immediate family members – a so-called “castle doctrine.”


November 20, 2013 in Gun Policy | Permalink | Comments (0)

Early Voting: What Works

The title of this post comes from this report released last month by the Brennan Center for Justice calling for an extension of early voting. Here is the abstract:

The lifeblood of a democracy is a voting system that is free, fair, and accessible to all eligible citizens. But much of today’s election system was developed more than a century ago. As Americans’ lives become more complex, confining voting to a single 8- or 12-hour period is simply not reflective of how most voters live. Expanding early voting programs is a crucial way to modernize the system. It adds important flexibility and convenience, reduces the administrative burdens of the Election Day rush, keeps elections safe and secure, and helps bring our antiquated system into the 21st century.

Based on extensive interviews with election officials and an analysis of state early voting laws, this report details the benefits of early voting programs and proposes seven recommendations to substantially improve our outdated election process.


November 20, 2013 in Election Law, Right to Vote | Permalink | Comments (0)

Criminalizing revenge porn need not violate the First Amendment

Here's one woman's account of her experiences with revenge porn. Notably, her former boyfriend started an eBay auction with nude photos of her, and he linked the auction to several of her employer's Facebook pages. Because she was a professor, co-workers were not alone in viewing the images--several students saw them too.

A year and half later, the images appeared on a porn website.


Eventually, she was diagnosed with PTSD and her therapist recommended that she request medical leave. She did. But, her employer was not sympathetic.

The article begins:

UnknownIn February 2010, my ex-boyfriend, Joey (name changed) and I had a fight over a skirt I wore to work. He deemed the skirt too short. He shamed me, called me a hooker, and accused me of sleeping with all my male friends. After watching his jealousy and possessiveness steadily increase over our seven-month relationship, I was at my breaking point. We were over.

The day after the fight, Joey called me at 11:53pm. He was livid. He said he was looking on my Facebook page and from what he could see it was clear I was sleeping with at least three other guys. I tried to rationalize with him, to convince him he was mistaken. But he was too far-gone to hear me.

He threatened to start an eBay auction. If I didn't tell him the truth about how many other guys I was sleeping with, he said he was going to auction off a CD of 88 naked images of me that I allowed him to take after three months of relentless pressure. He said he would send links to the auction to my friends and family, to people at the college where I teach. I shook with desperate fear. I knew no words would change his mind. Joey had flown into a rage, uncontrollable and impervious to reason. I knew my fate, and my only defense was to call the police. I begged and pleaded for him not to carry out his threat.

Then he said the words that would change the course of my life: "I will destroy you."

I called the Baltimore County police and through my sobs tried to explain what was happening and why I needed help. The dispatcher sent an officer to my home who looked down on me as I explained that I wanted him to stop a threat. It was the first of many times I would be told, "There is nothing I can do. No crime had been committed." And at that point, no crime had been committed. I was frantic over a threat, which to the bored officer was nothing to worry about. To me, it was a portent of the misery I'd soon suffer.

The auction went live the following afternoon. I received about three emails from eBay informing me that, "Joseph Mann thought you might like this item on eBay" The link read: (Name of college)MD English Professor Nude Photos!

The concern with revenge porn is not the image, as such. In Jenkins v. Georgia, the Supreme Court ruled that nudity was not obscene (one of the original exceptions to protected First Amendment speech): "There are occasional scenes of nudity [in the film Carnal Knowledge], but nudity alone is not enough to make material legally obscene[.]" 418 U.S 153, 161 (1974).

As always, context matters. Screaming "fire" in a crowded theater is not protected First Amendment speech when there is no fire. But, if the concession stand has erupted in flames...

In Brandt v. Bd. of Education of City of Chicago, 480 F.3d 460 (6th Cir. 2007), Judge Posner observes:

Although freedom of speech and of the press...are often loosely paraphrased as "freedom of expression," and clothes are certainly a way in which people express themselves, clothing as such is not--not normally at any rate--constitutionally protected expression...Self-expression is not to be equated to the expression of ideas or opinions[.]

Whether clothing is protected speech, of course, comes down to the context in which the clothes are worn. "Merely wearing clothes inappropriate to a particular occasion could be a political statement," writes Judge Posner; or, "If Irish people were forbidden to wear green on St Patrick's Day, a natural form of protest would be to wear green on that day."

Because revenge porn legislation deals with the non-consensual publication of images and/or videos, the context is different from pornography that is protected by the First Amendment. 

The principle concern with revenge porn legislation is that it will chill protected speech. As Wisconsin Public Radio reported when revenge porn legislation was introduced there, "[S]tate Rep. Fred Kessler, D-Milwaukee, is concerned the bill is too broad and might restrict people's freedom of expression by limiting the creation and distribution of fine art."

This is a stretch. Revenge porn legislation would forbid the non-consensual publication of nude images, not the publication of nude images. Just as an artist could not yell "fire" in a crowded theater and then claim First Amendment protection for video taken as people flee to safety, an artist should not be able to invoke an ambiguous art justification for the non-consensual publication of nude images. Artists using such images are not producing art, they're creating pain. It's a "scouge." As Justice Scalia has written, "[A] physical assault discloses that the attacker dislikes the victim[,]" but that does not transform the assault into protected First Amendment expression. Nevada Comm'n on Ethics v. Carrigan, 131 S.Ct. 2343, 2350 (2011).

Indeed, as UCLA professor Eugene Volokh has written

I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts. While I don’t think judges and juries should be able to decide, on a case-by-case basis, which statements about a person aren’t of “legitimate public concern” and can therefore be banned, I think courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.

I agree. I, too, dislike granting judges the authority to determine what constitutes valid artistic, literary, or political expression. Miller v. California, 413 U.S. 15 (1973). But, what would be (or should be) forbidden by legislation criminalizing revenge porn is not the value of nude images. 

CRL&P related posts:


November 20, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (1)

CRL&P Daily Reads: Nov. 20, 2013

NSA ignored courts on conduct of domestic surveillance; Supreme Court won't hear challenge to NSA domestic surveillance; and, Rep. Sensenbrenner claims NSA's surveillance program threatens America's economy.

Albuquerque voters reject ban on abortions after 20 weeks; and, Supreme Court won't block Texas abortion law that has caused some clinics to close.

Divided Ohio Supreme Court upholds school district's firing of teacher who refused to remove religious materials from his classroom.

Ohio House committee approves new 'stand your ground' law; gun owners in San Fancisco claim city's large-capacity magazine ban violates the Second Amendment; and, Ohio city looks to repeal several gun laws after legal challenge by gun-rights advocates.

Christian Science Monitor explains how voter ID laws affected 2013 elections; PolitiFact Texas labels claims that no problems resulted from state's new voter ID law 'mostly false'; and women are more likely to be disenfranchised under North Carolina's new voter ID law.

Iowa city required to release records from closed meetings.

Juveniles file a federal lawsuit against Florida county and private prison contractor alleging extremely harsh conditions and overuse of pepper spray.

Governor expected to sign Illinois's law legalizing same-sex marriage later today.

Iowa woman wrongfully terminated for alleging workplace discrimination wants her job back.


November 20, 2013 in Abortion, Election Law, First Amendment, Freedom of Religion, Freedom of Speech, Gun Policy, Right to Vote, Same-sex marriage, Science, Voter ID | Permalink | Comments (0)

Tuesday, November 19, 2013

Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere

The title of this post come from Professor Richard Hasen's upcoming article arguing that federal courts ought to use a more exacting analysis of voting laws disproportionately affecting one party's voters. Here's the abstract:

North Carolina, Texas, and other states with Republican legislatures have passed a series of laws making it harder for voters to register and to vote. In response, the United States Department of Justice has sued these states, claiming that the laws violate portions of the Voting Rights Act protecting minority voters. When party and race coincide as they did in 1900 and they do today, it is hard to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country. The Democratic Party supports a left leaning platform that includes more social assistance to the poor and higher taxes. Some Republicans view such plans as aiding racial minorities.

Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? As I explain, if courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is more likely to fall and the fight will be settled primarily in the courts. 

The race versus party bifurcation is unhelpful, and the solution to these new battles over election rules — what I call "The Voting Wars" — is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grabs and protect voting rights of minority voters. In short, this new rule will inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

CRL&P related posts:

November 19, 2013 in Election Law, First Amendment, Right to Vote, Voter ID | Permalink | Comments (0)

Effect of Ohio's new ballot access law on 2014 election uncertain

On Nov 6, 2013, Gov. John Kasich signed into law new ballot access restrictions (S.B. 186) making it more difficult for minor parties to gain access to the ballot. The Libertarian Party of Ohio (LPO) has filed a lawsuit challenging the law on the grounds that it violates protected First Amendment rights.

Images-2The LPO also has argued that the new restrictions are aimed at bolstering Gov. John Kasich's (R) reelection campaign, and one Ohio scholar supports this view:

University of Akron political scientist David Cohen said Republicans pushed the bill through to help Kasich’s re-election chances by hamstringing Earl's campaign. Their fear, Cohen said, is that conservatives upset about Kasich's support of Medicade [sic] expansion would vote Libertarian instead, thus helping Democrat Ed FitzGerald’s chances.

“I think Governor Kasich and the Republicans know it’s a huge deal,” Cohen said. “They know that if it’s a two-person race, he wins.”

Reasons exist for suspecting the veracity of Professor Cohen's claim, particularly because the race appears to be tightening. The liberal-leaning Public Policy Polling (PPP) found in August that the race between incumbent Gov. Kasich and Democratic challenger Ed Fitzgerald had narrowed--with Fitzgerald narrowly leading 38 percent to 35 percent. Similarly, with the inclusion of Libertarian Party candidate Charlie Earl, PPP recently found that the race between Gov. Kasich and Fitzgerald is a virtual dead heat. Regardless, PPP has found Gov. Kasich's position to be less than comfortable.

Libertarians appear to believe that Republican support for recent ballot access restrictions could cost Republican candidates in 2014. On November 17, 2013, LPO state committee chairman Aaron Keith Harris wrote in a Plain-Dealer op-ed:

Because Libertarian party gubernatorial candidate Charlie Earl seems to be attracting many fiscal conservatives disgusted by Kasich's record on taxes, spending, and Obamacare/Medicare expansion, the Republican Party in the House and Senate decided to act to restrict voter choice.

The LPO now is actively recruiting candidates to challenge Republicans who supported the restrictions.

However, Gov. Kasich generally has enjoyed strong favorability ratings this year, and questions remain as to whether Democrats can generate the turnout necessary to defeat him.

The Ohio State Univeristy professor Paul Beck also doubts whether the new restrictions will dramatically affect Gov. Kasich's re-election chances. According to The Plain Dealer, he believes that "conservative voters would lump their displeasure with SB 193 in with their anger over Kasich’s push to expand Medicaid."

Further, Professor Beck is skeptical about the LPO's chances in court:

Ohio State University political science professor Paul Beck said he believes the Libertarians will lose their lawsuit, as courts tend to defer to legislative prerogative to set state ballot-access rules. But he said the party will likely submit enough petition signatures to regain official recognition.

Courts generally are deferential to legislative bodies when it comes to election law, but I question whether such deferrence makes good sense. While legislative bodies do have expertise in elections, they also are in a position to craft laws that will affect outcomes. As a result, majorities will almost always craft election laws that benefit their party--usually at the expense of voters. Perhaps less deferrence from courts could limit the attendant negative pressures of power.

CRL&P related posts:

November 19, 2013 in Election Law, Right to Vote | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 19, 2013

Monday, November 18, 2013

Brief Amici Curiae of Experts in the History of Executive Surveillance: James Bamford, Loch Johnson, and Peter Fenn in First Unitarian Church of Los Angeles v. National Security Agency

The title of this post comes from this paper discussing a recent amicus brief by prominent surveillance experts in which they argue that there exists a "natural" tendency to abuse surveillance powers when secrecy is protected at the expense of oversight, but that existing legal structures are sufficient to address this threat. Here is the abstract:

This case presents pressing questions regarding the executive's power to collect, store, and use Americans' telephony and other personal data for the purposes of conducting surveillance operations. 

In the wake of recent disclosures revealing National Security Agency data collection programs, the First Unitarian Church of Los Angeles and 21 other membership and political advocacy organizations filed this lawsuit to challenge the NSA's collection of telephony data as an infringement of their members' First and Fourth Amendment rights. 

In this amicus brief, experts in the history of American surveillance -- James Bamford, author of The Puzzle Palace; Peter Fenn, who served as Washington Chief of Staff for Senator Frank Church and as a staff member to the Senate Intelligence Committee; and Dr. Loch Johnson, who served as special assistant to the Church Committee chair and as staff director of the House Subcommittee on Intelligence Oversight -- explain the historical parallels between the executive surveillance programs that are presently coming to light and the [1970s]. 

All were directly involved in the comprehensive review of twentieth-century American intelligence operations completed by the Church Committee in the 1970s. 

Drawing from the experts’ extensive knowledge, the brief explains the clear parallels between the development and growth of the abusive practices of the mid-twentieth century -- when American intelligence agencies helped conduct politically motivated surveillance of Americans ranging from ordinary teachers, journalists and peace activists to civil rights leaders, members of Congress, and a Supreme Court justice -- and today’s vast surveillance programs. History shows that abusive surveillance does not require bad actors to grow and flourish: instead, it is the natural outgrowth of too much secrecy and too little oversight by other branches of government. 

In light of this clear historical pattern, the brief argues that the court should carefully apply existing legal limits on the government’s surveillance powers to address the risks posed by the executive branch and the intelligence agencies’ claims to expansive power to determine the limits of their own activities.

November 18, 2013 | Permalink | Comments (1)

Settlement in Fair Housing Case—A Sigh of Relief

This is a guest post written by Professor Valerie Schneider.*

Less than one year after the Supreme Court ended its term with the gutting of the Voting Rights Act, it is clear that at least four of the members of the current Supreme Court (the number needed for a case to be heard by the highest court) are eager to limit the reach of another pillar of the Civil Rights legislation from the 1960s—the Fair Housing Act.

In the past two years, the Supreme Court has granted certiorari in two Fair Housing Act cases, both of which would have required the Supreme Court to determine whether acts that are not intentionally discriminatory, but still have a disproportionate negative impact on minority communities, may be prohibited by the Fair Housing Act.  Each of these cases –first Magner v. Gallagher and then, just this week, Township of Mt. Holly v. Mt. Holly Gardens Citizens In Action, Inc. – settled just weeks before oral arguments were scheduled.

Those who would have liked the case to move forward argue that, unless plaintiffs can prove that a defendant harbored racial animus or intended to discriminate, the law should not recognize that discrimination has taken place.  This proposition is countered by widely accepted social science, not to mention human experiences, that indicates that intent actually has very little to do with whether discrimination occurred.   Regardless, to those displaced by discriminatory redevelopment decisions or lending policies, it is little comfort that the decision-makers may have had no conscious intent to cause harm based on race.  What is in the mind of those engaged in discriminatory actions is of no comfort to the victims of discrimination and should be of limited import under the Fair Housing Act.

One thing that is important to keep in mind is that the question before the Supreme Court in both Gallagher and Mt. Holly was whether disparate impact claims are cognizable under the Fair Housing Act—that is, the Supreme Court was to decide whether plaintiffs who have been harmed by practices with discriminatory effects can get through the courtroom door.  In order to actually prevail in their cases, such plaintiffs have the heavy burden of proving, among other things, that there was a less discriminatory means by which the defendant could have accomplished its goals.  Disparate impact analysis is no slam dunk for plaintiffs, but it is critical to ensuring that the Fair Housing Act lives up to its name—i.e. that it ensures fairness.

As noted in the amicus brief submitted in the Mt. Holly case by Howard University School of Law’s Fair Housing and Civil Rights Clinics, no one is suggesting that “disparate impact analysis should prohibit municipalities from achieving legitimate redevelopment goals; but it does arm communities of color with one small tool of protection when there is a clear means to achieve that legitimate goal in a way that would be less disastrous to the very communities that the Fair Housing Act was designed to protect.”

As the debate about disparate impact under the Fair Housing Act continues (and it is not unlikely that the Supreme Court will agree to hear yet another similar case), it is important to remember what is at stake.  After hundreds of years of legal discrimination based on race, communities protected by the Fair Housing Act need a tool to combat the much more subtle forms of discrimination that persist today—disparate impact analysis is that tool.

ACSblog posted Professor Schneider's piece on Nov. 14, 2013.

* Valerie Schneider is Assistant Professor of Law at Howard University School of Law where she supervises the Fair Housing Clinic.

November 18, 2013 in Fair Housing Act | Permalink | Comments (2)

Cop facing criminal charges, embroiled in civil rights lawsuit resigns

Last month, Skokie police officer Michael Hart was charged with aggravated battery and official misconduct after shoving a woman into a jail cell with such force that her injuries required reconstructive surgery. On November 15, 2013, Hart resigned.

According to The Chicago Tribune:

A Skokie police officer charged with shoving a woman face-first into a cell bench has resigned rather than face possible firing, village officials said.

Skokie officials had told Michael Hart that they would seek to fire him, and his resignation took effect Friday, according to a news release from the village. 

The incident occurred after police arrested Cassandra Feuerstein for drunk driving. At the jail, Officer Hart reportedly "became irate that [Feuerstein] wouldn't look into the camera for a booking photo[.]" Surveillance video shows Officer Hart shoving Feuerstein into a jail cell causing her to hit her face on a concrete bench inside the cell. Feuerstein reportedly broke an eye socket and lost teeth, and as a result she now has a titanium plate in her face.

As CRL&P has noted, Feuerstein has filed a civil rights lawsuit against Officer Hart alleging that he used execessive force (which seems pretty clear).

CRL&P related posts:

November 18, 2013 in Civil Rights Litigation, Excessive Force | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 18, 2013

Sunday, November 17, 2013

CRL&P Daily Reads: Nov. 17, 2013

Friday, November 15, 2013

Federal judge suspends Ohio's restriction on petition circulators

Earlier this year, Gov. John Kasich (R) signed into law a new restriction requiring circulators of candidacy petitions to be residents of Ohio. The law states:

Except for a nominating petition for presidential electors, no person shall be allowed to circulate any petition unless the person is a resident of this state and is at least eighteen years of age. O.R.C. 3503.06(C)(1)(a).

In September, the 1851 Center for Constitutional Law challenged the law on the grounds that it violated the First Amendment, and last week the Libertarian Party of Ohio (LPO) joined the suit.

Today The Columbus Dispatch reports that a federal judge has suspended this provision:

A federal judge late yesterday blocked enforcement of an Ohio law that said only Ohioans can collect signatures to qualify issues or candidates for the ballot.

In granting a preliminary injunction, Judge Michael Watson of the Columbus division of the Southern District said the law is a First Amendment violation.

“It is well established that even a temporary violation of First Amendment rights constitutes irreparable harm,” Watson said.

The court respects the state’s prerogative to regulate petition circulation, Watson wrote, but that does not permit legislation that violates the Constitution.

“Plaintiffs have shown a substantial likelihood of success on the merits,” Watson wrote.

The Libertarian Party of Ohio (LPO) and the 1851 Center had requested the preliminary injunction preventing Secretary of State Jon Husted (R) from enforcing the provision citing the Sixth Circuit U.S. Court of Appeals ruling in Nader v. Blackwell, in which the court held that requiring circulators of candidacy petitions to reside in the state violated the First Amendment. 545 F.3d. 459, 475 (6th Cir. 2008).

Yesterday's decision comes just a week after Gov. Kasich signed into law further restrictions on the ability of minor parties to gain access to the ballot. The new restrictions would require minor party candidates to obtain 28,000 signatures to be placed on the ballot in 2014, and the criteria for ballot access would increase after 2015.

The LPO's lawsuit includes allegations that the new law impermissibly restricts it from holding a party primary. The party seeks a preliminary injunction preventing Sec. Husted from removing the LPO from Ohio's primary and general election ballots in 2014.

CRL&P related posts:


November 15, 2013 in Election Law, First Amendment, Freedom of Speech | Permalink | Comments (0)

Four Decades of Federal Civil Rights Litigation

The title of this post comes from this paper detailing the relatively low success rates of constitutional tort and employment discrimination cases as compared to traditional tort and contract cases. Here's the abstract:

Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.


November 15, 2013 in Civil Rights Litigation | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 15, 2013

Ten homeless people file civil rights lawsuit to keep city from evicting them from a local landfill.

NYC's stop-and-frisk policy results in conviction in just 3 percent of cases.*

Disabled man sues city under ADA for right to keep his service dog--a pit bull.

California judge rejects challenge to local ordinance banning the use of 'sign waver' advertisements.

Pennsylvania judge rejects request to block challenge to the state law banning recognition of same-sex marriages; Hawaii judge upholds state's new same-sex marriage law; and, transgender woman's employment discrimination case is tossed.

Victims call for legislation criminalizing revenge porn.

Jimmy Carter says the U.S. should abolish the death penalty.

* Correction: A helpful reader observed that the second link above was incorrect. It previously stated that New York City's stop-and-frisk policy leads to sentences of 30 days or more in just 1.5 percent of the cases, but the rate is actually much lower than that. In fact, the AG's report states on page 3:

Less than one in seventeen SQF arrests, or 0.3% of stops, resulted in sentences of more than 30 days of imprisonment.


November 15, 2013 in 14th Amendment, Civil Rights Litigation, Equal Protection Clause, First Amendment, Freedom of Speech, Revenge Porn, Same-sex marriage | Permalink | Comments (3)

Thursday, November 14, 2013

Occupiers file civil rights claim against Philadelphia PD

Members of Occupy Philadelphia recently filed a lawsuit against the city's police commissioner and a number of officers alleging violations of their civil rights.

Nearly two years ago, police arrested 31 protesters after shutting down the camp they inhabited across from City Hall. After the protesters dispersed, police reportedly followed a group of them and arrested them in the early morning on the grounds that they would disrupt traffic.

Last year, a Municipal Court judge aquitted the protesters of all charges.

The members claims include false arrest and violations of their First Amendment rights.

The Philadelphia Daily News reports:

One of the more active of scores of protest encampments that arose in fall 2011 to protest income inequality and related issues, Occupy Philadelphia camped out in Dilworth Plaza adjacent to City Hall for 55 days. The city shut down the camp - which numbered several hundred Occupiers at the peak - to make room for renovation work.

After police raided the Dilworth site on Nov. 30, 2011, cops - including mounted officers - followed Occupy protesters for several hours and finally arrested the group just before 5 a.m. on 15th Street near Callowhill, claiming the demonstrators would snarl rush-hour traffic.

Since then, other Occupy members who were arrested over the 55 days - including 12 busted at a sit-in at a Wells Fargo branch lobby in Center City - have been found not guilty.

Krasner said the 26 plaintiffs are seeking economic damages for their allegedly false arrest, as well as changes in city policy to allow protesters to exercise their right of free assembly in the future. The group is also represented by Lloyd Long and Paul Hetznecker.


November 14, 2013 in Civil Rights Litigation, First Amendment, Freedom of Assembly, Freedom of Speech | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 14, 2013

Northern Illinois University student has been arrested after police discovered an AR-15 rifle and a handgun in his dorm room; federal agents claim gun made by a 3-D printer could threaten security; Iowa gun store owner has been arrested after selling fully automatic machine gun; Milwaukee youth help city officials develop strategies to reduce gun violence; and a Florida woman pulls a gun on a journalist.

Sen. Rubio is scheduled to speak at a conference led by an anti-gay activist; Indiana woman has been denied access to her partner who is currently unconscious in the hospital; and five Senagalese women could face as much as five years in prison because they are lesbians.

Supreme Court considers whether law enforcement officials violate the Fourth Amendment when they search an apartment after one roomate denies them entry but another later permits it; and TSA's profiling program is ineffective.

Students decry lack of diversity at UCLA; and federal court hears oral argument on University of Texas's addmission policy that considers race.

Former Dolphin's offensive lineman Jonathan Martin might sue the team for harassment and discrimination.

ProPublica documents China's efforts to censor Twitter messages.


November 14, 2013 in Affirmative Action, First Amendment, Fourth Amendment, Freedom of Speech, Gun Policy, Same-sex marriage, Search, Seizure | Permalink | Comments (0)

Wednesday, November 13, 2013

Ohio delays execution as inmate seeks to donate organs

The title of this post comes from this fascinating story about a death row inmate whose execution was delayed so that he could donate organs to his mother and sister. The story is particularly interesting because of the tension between the state's interest in administering justice and the benefit to the would-be recipients of inmates' organs. Here are the details:

Ronald Phillips, 40, was set to be executed Thursday for the 1993 murder of Sheila Marie Evans – the three-year-old daughter of his girlfriend.

Ohio Governor John Kasich rescheduled the execution for July 2, 2014 to allow the time needed to determine if Phillips can donate “non-vital” organs such as a kidney prior to his execution.

"I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said in a statement.

Phillips had initially requested that his organs be harvested after his death by lethal injection.

His mother has kidney disease and his sister has heart problems, but he said he wanted to donate his organs to “as many people as possible.”


November 13, 2013 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 13, 2013

Tuesday, November 12, 2013

Fair Warning

The title of this post comes from this article arguing that courts have employed a limited First Amendment analysis to protesters' right of fair warning by police officers. Courts, however, have not explicitly adopted this standard, and as a result the amount of protection under the fair warning doctrine remains ambiguous. Here's the abstract:

Protesting has become an integral part of American politics, so much so that federal Courts of Appeals have recently restricted police officers’ power to arrest demonstrators who have concededly violated otherwise valid statutes and regulations. Specifically, courts have found that, where demonstrators may reasonably, yet mistakenly believe that police officers have permitted their conduct, officers must give “fair warning” before arresting or dispersing those demonstrators. In § 1983 suits, courts have even found that demonstrators’ right to fair warning is “clearly established.” While the right to fair warning may be clearly established, its doctrinal roots are not. Ordinarily, the requirement of fair warning, grounded in the Due Process Clause, guides courts in their application of statutes. The cases mentioned above, however, consider not the content of statutes — indeed, the statutes’ applicability is frequently conceded — but instead the conduct of police officers and demonstrators. As a result, the courts that have recognized demonstrators’ rights to fair warning have not clearly specified whether the First Amendment, the Fourth Amendment, or the Due Process Clause creates that right. Identifying the source of this right is more than an academic exercise. Such identification will help courts expound the right’s contours and determine its future application. Ultimately, this Article argues that courts have unconsciously employed the right to fair warning as a less sweeping form of First Amendment review, one that applies First Amendment principles to officers’ enforcement of a statute, rather than to the statute itself. Only by attributing the right to fair warning to the First Amendment can courts both explain existing doctrine and vindicate the principles that earlier decisions have recognized when invoking that right.


November 12, 2013 in First Amendment, Fourth Amendment | Permalink | Comments (0)

Name's taken, NBC...

School officials decide not to censor student shirts commemorating late classmate

Officials in one Michigan school district have reversed their decision forbidding students to wear T-shirts honoring a classmate who recently died of leukemia. School administrators originally had told the students that they could not wear the shirts because of the emotional impact--the shirts might have exacerbated the grief felt by some students. But, students and parents complained, and the school district acquiesced.

The article begins:

A southern Michigan school district has reversed its decision to bar students from wearing T-shirts honoring a 12-year-old classmate who died over the weekend following a long battle with cancer.

At least a dozen students showed up to Lakeview Middle School in Battle Creek on Monday wearing blue or orange T-shirts to honor sixth-grader Caitlyn Jackson, who died Saturday after fighting leukemia for years, the Battle Creek Enquirer reported[]. Blue was Caitlyn's favorite color and orange is worn to honor those like her with leukemia, and some of the shirts were from various benefits for Caitlyn over the years.

When students arrived at school, administrators asked them to change out of the shirts, turn them inside-out or tape over Caitlyn's name.

Notably, district officials originally justified the prohibition under measures created to deal with crises. As the Associated Press reports:

[The school's finance director] said the district decided Sunday to not allow the T-shirts in keeping with its crisis management plan, which bars permanent memorials on the belief that they can remind students of their grief and make it worse. Parents weren't informed of the decision.

I doubt that student-made T-shirts qualify as "permanent memorials" (although a more pointed definition of the terms might be necessary), and I question the virtue of the district's policy.

Schools not only teach intellectual skills, but they also serve to socialize students for future integration into society and the workforce. Dealing with grief and loss are necessary components of that socialization process.

Further, emotionally trying experiences often are not private matters. Many people will have to deal with the loss of a co-worker or a classmate. Natural disasters often disrupt whole communities; and, as the 9-11 attacks demonstrated, the pain and trauma of a single event can significantly impact entire regions, even the country.

After completing primary and secondary school, students hopefully have developed the intellectual and emotional skills to manage their future education and/or careers even in difficult circumstances. I find it difficult to believe that ignoring grief is the best way to prepare students for that eventuality.

Moreover, the administrator's ban on the shirts likely violated the First Amendment speech rights of the students who wore them. Some students certainly feel grief due to the death of a classmate, but the T-shirts probably do not detract from their educational experiences.

Sorrowful students will continue to feel the attendant pain of losing a friend. But, the now-empty desk creates that sadness. Not the T-shirts.


November 12, 2013 in First Amendment, Freedom of Speech, Schools | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 12, 2013

Monday, November 11, 2013

Programming Note: Traveling Day

I'm on my way to see my wife in California, so I likely will be off-line for most of the day.

Also, I will be traveling around "The Golden State" for the next three weeks. As a result, the times at which I post will be pushed back from my normal EST schedule.

November 11, 2013 | Permalink | Comments (1)

Sunday, November 10, 2013

Calif. transgender law's opponents petition for repeal

The title of this post comes from this article reporting that opponents of the California law allowing transgender K-12 students to choose which restrooms they will use and whether they will play on boys or girls sports teams likely have obtained enought signatures to put the law on next year's ballot.

The law is scheduled to go into effect Jan. 1, 2014.

The article begins:

Opponents of a new California law that gives transgender students certain rights said Sunday that they had collected enough signatures for an initiative that would repeal the law.

A coalition of conservative groups called Privacy for all Students submitted 620,000 signatures to get the initiative on the November 2014 ballot, said Frank Schubert, the political strategist handling the signature gathering effort.

To qualify, at least 505,000 valid signatures must be submitted. To verify the signatures are real, each of California's 58 counties will first chec that the count is correct, then conduct a random sampling of signatures to make sure they are legitimate. After that, it is likely the state would order a full review to ensure the integrity of the signatures.

If, after all of the reviews, the group has the requisite number of valid signatures, the initiative would qualify for the ballot.


November 10, 2013 | Permalink | Comments (0)

New Jersey court ruling another blow to gay conversion therapies

The title of this post comes from this article reporting that a New Jersey judge has upheld the state's ban on gay conversion therapy, ruling that the ban does not infringe upon protected First Amendment rights. According to the judge, "[A] state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services." The article begins:

Echoing a similar ruling in California earlier this year, a New Jersey judge has upheld the state’s ban on so-called gay conversion therapies for minors.

In August, New Jersey Gov. Chris Christie signed into law a bill outlawing the controversial therapies, making the Garden State the second to do so after California. California’s ban, which was passed in 2012, was upheld in federal court in August.

The New Jersey law prevents any licensed therapist, psychologist, social worker or counselor from using sexual orientation change efforts with children under age 18.


November 10, 2013 in First Amendment | Permalink | Comments (0)