Wednesday, December 5, 2018
In its opinion in Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey, a divided panel of the Third Circuit rejected a challenge to New Jersey's prohibition of large capacity magazines (LCM), defined as magazines capable of holding more than ten rounds of ammunition, N.J. Stat. Ann. 2C:39-1(y), 2C:39-3(j). The challengers sought a preliminary injunction based on violations of the Second Amendment, the Equal Protection Clause, and the Fifth Amendment's Taking Clause; after an evidentiary hearing the district judge denied the injunction.
On the Second Amendment claim, the Third Circuit majority agreed with the general analysis laid out by the Second Circuit in New York State Rifle & Pistol Ass’n, Inc. v. Cuomo (2015). Judge Patty Shwartz, writing for the majority, first determined that a "magazine" is an arm regulated under the Second Amendment. Judge Shwartz then considered whether the regulation of a specific type of magazine, namely an LCM, “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee," by inquiring whether the type of arm at issue is commonly owned, and “typically possessed by law-abiding citizens for lawful purposes." The court noted that the record showed there were "millions" of such magazines and then assumed "without deciding that LCMs are typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection." The court then turned to the level of scrutiny to be applied — a question left open by the Court in Heller v. D.C. — by inquiring how severely the challenged regulation "burdens the core Second Amendment right."
Here, the court held that the New Jersey law did not severely burden the core Second Amendment right to self-defense in the home for five reasons and thus determined that intermediate scrutiny should apply. The court then held that the State of New Jersey has, undoubtedly, a significant, substantial and important interest in protecting its citizens’ safety," including reducing the lethality of active shooter and mass shooting incidents. The court rejected the challengers' argument that the rarity of such incidents should negate the state's interest, finding instead that the "evidence adduced before the District Court shows that this statement downplays the significant increase in the frequency and lethality of these incidents." The court further found that the LCM ban was a sufficiently close fit to the state's interest in promoting safety.
It was on the Second Amendment issue that Judge Stephanos Bibas dissenting, arguing that strict scrutiny should apply and that even if it does not, the New Jersey statute fails intermediate scrutiny. For Judge Bibas, although the majority stands in good company: five other circuits have upheld limits on magazine sizes," the courts err "in subjecting the Second Amendment to different, watered-down rules and demanding little if any proof."
While the Second Amendment challenge was at the heart of the case, the majority also rejected the challengers' claims under the Takings Clause and the Equal Protection Clause. On the Takings Clause, the majority held that there is not actual taking, and no "regulatory taking because it does not deprive the gun owners of all economically beneficial or productive uses of their magazines." On the Equal Protection Clause, the challengers faulted the Act because it allows retired law enforcement officers to possess LCMs while prohibiting retired military members and ordinary citizens from doing so.The majority did not engage in a robust analysis, but held that "retired law enforcement officers are not similarly situated to retired military personnel and ordinary citizens, and therefore their exemption from the LCM ban does not violate the Equal Protection Clause."
In short, the Third Circuit's opinion is part of a trend of determining that intermediate scrutiny applies to various regulations of high capacity firearms or magazines and upholding state regulation. Most likely a petition for certiorari will follow this opinion and it will be interesting to see whether the United States Supreme Court continues its own trend of denying such petitions.
[image: double-drum magazine, which holds 100 rounds, via]
Tuesday, December 4, 2018
The Ninth Circuit ruled in Soltysik v. Padilla that the lower court didn't sufficiently weigh the evidence in a candidate's challenge to California's rule that only candidates who "prefer" a recognized political party can list that party as their "preference" on the ballot.
The ruling means that the lower court will take a second crack at the case.
The case tests California's law that allows candidates who prefer a recognized political party to list that party on the ballot, but requires candidates who prefer a nonrecognized party to list their preference as "none." (California has voter-nominated (not party-nominated) primary process, and primary candidates list their "preference" for a party (and not their designation as the party's nominee).) Under the rule, Soltysik, a candidate for the state assembly who preferred a nonrecognized party (the Socialist Party USA), had to list "Party Preference: None" next to his name on the ballot. He argued that this violated free association, equal protection, and free speech.
The district court, applying the Burdick/Anderson sliding-scale test, deferred to the state and dismissed the case. The Ninth Circuit reversed and remanded.
The Ninth Circuit held that the burden on Soltysik's rights "is not severe," but that "it is more than 'slight,' warranting scrutiny that is neither strict nor wholly deferentially." The court then recognized that the state's interest in avoiding voter confusion is important; but it also said that the rule seems to have the opposite effect--to create confusion--and that the state may have other ways to achieve its interest.
In any event, the court held that the parties didn't get the chance to develop evidence to support their positions, because the lower court dismissed the case before discovery. So the court remanded for further proceedings.
Judge Rawlison dissented, arguing, among other things, that the court applied too high a level of scrutiny in evaluating the rule.
Thursday, November 15, 2018
In his opinion in Democratic Executive Committee of Florida v. Detzner, United States District Judge Mark Walker, Chief Judge for the Northern District of Florida, has granted the motion for a preliminary injunction and ordered Florida to "allow voters who have been belatedly notified they have submitted a mismatched-signature ballot to cure their ballots by November 17, 2018, at 5:00 p.m."
After finding that the plaintiffs had standing and were not barred by laches, Judge Walker reached the question of whether the plaintiffs were likely to prevail on their constitutional claims on the infringement of the right to vote. Judge Walker decided that the standard derived from Anderson-Burdick should be applied:
Under Anderson-Burdick, a court considering a challenge to a state election law “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” Burdick. When an election law imposes only reasonable, nondiscriminatory restrictions upon the constitutional rights of voters, the states’ important regulatory interests are generally sufficient to justify the restrictions. Id. But, “[h]owever slight the burden may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitations.” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). This is not a litmus test, rather the court must balance these factors and make hard judgments. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008). Finally, “Anderson/Burdick balancing . . . should not be divorced from reality, and  both the burden and legitimate regulatory interest should be evaluated in context.”
[some citations omitted]
Judge Walker found that the "injury is the deprivation of the right to vote based on a standardless determination made by laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the signature on file with the supervisor of elections." The judge noted that there are "dozens of reasons a signature mismatch may occur, even when the individual signing is in fact the voter," and concluded that disenfranchisement of "approximately 5,000 voters based on signature mismatch is a substantial burden." While Judge Walker found that Florida's interests "to prevent fraud, to efficiently and quickly report election results, and to promote faith and certainty in election results" were compelling, the "use of signature matching is not reasonable and may lead to unconstitutional disenfranchisement."
Judge Walker extended the period for voters to address a potential signature mismatch by noting that the previous opportunity to cure has "proved illusory."
Provisional ballot voters are provided no opportunity to cure under the law. Without this Court’s intervention, these potential voters have no remedy. Rather, they are simply out of luck and deprived of the right to vote. What is shocking about Florida law is that even though a voter cannot challenge a vote rejected as illegal, any voter or candidate could challenge a vote accepted as legal. The burden on the right to vote, in this case, outweighs the state’s reasons for the practice. Thus, under Anderson-Burdick, this scheme unconstitutionally burdens the fundamental right of Florida citizens to vote and have their votes counted.
Additionally, Judge Walker noted that although the plaintiffs' claims rested on the First Amendment and Equal Protection Clause of the Fourteenth Amendment, he was also troubled by the lack of procedural due process, citing the Georgia mismatch decision in Martin v. Kemp.
Judge Walker's 34 page opinion did not cite Bush v. Gore (2000).
The Florida recount, like the Georgia recount continues, more than a week after election day.
Friday, November 2, 2018
In an Order in Georgia Coalition for the People's Agenda v. Kemp, United States District Judge Eleanor Ross has found that the challengers would be likely to succeed on the merits of their constitutional claim regarding Georgia's flagging of potential voters as noncitizens ineligible to vote. Recall that a different district judge recently issued an injunction against Secretary of State Kemp — who is also a candidate for Governor — in a challenge to the "mismatch" of voter names.
Here, Judge Ross articulated the appropriate framework as:
When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
Judge Ross first found that the burden was "severe for those individuals who have been flagged and placed in pending status due to citizenship." Discussing one particular person, Judge Ross stated that
it was not a nominal effort for him to vote; it was a burdensome process requiring two trips to the polls, his own research, and his hunting down a name and telephone number to give to election officials so that his citizenship status could be verified, all after he had already submitted proof of citizenship with his voter registration application. This is beyond the merely inconvenient.
Relying on Timmons, Judge Ross continued with a strict scrutiny analysis, finding that while the State's interest in ensuring only citizens vote was compelling, the specific means chosen were not narrowly tailored. Here, the focus was on the fact that 4 of the 5 ways in which the State proposed that persons could verify their citizenship required a "deputy registrar," which were derived from a previous settlement. However, Judge Ross declared that the court's hands were not tied as to this matter, and ultimately all 5 of the options "for allowing individuals with flags for citizenship to vote in the upcoming election, sweep broader than necessary to advance the State's interest, creating confusion as Election Day looms."
Judge Ross directed Brian Kemp in his official capacity as Secretary of State to:
Allow county election officials to permit eligible voters who registered to vote, but who are inaccurately flagged as non-citizens to vote a regular ballot by furnishing proof of citizenship to poll managers or deputy registrars.
Update the “Information for Pending Voters” on the Secretary of State’s website so that it provides (a) clear instructions and guidance to voters in pending status due to citizenship and (b) a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Direct all county registrars, deputy registrars, and poll managers on how to verify proof of citizenship to ensure that they can properly confirm citizenship status consistent with this order. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
- Direct the county boards of elections to post a list of acceptable documentation to prove citizenship, which includes a naturalization certificate, birth certificate issued by a state or territory within the United States, U.S. passport, and other documents or affidavits explicitly identified by Georgia law and listed on the Georgia Secretary of State’s website, at polling places on Election Day.
Wednesday, October 10, 2018
In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment. Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).
Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised. In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny. Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that
The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.
On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.
On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAA holding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that
Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States. Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.
[citations to Murphy omitted].
October 10, 2018 in Congressional Authority, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fundamental Rights, Nondelegation Doctrine, Opinion Analysis, Race, Tenth Amendment | Permalink | Comments (0)
The Supreme Court yesterday declined to intervene in a case challenging North Dakota's voter-ID law. The move allows the law to go into effect for the upcoming elections.
The action (or lack of it) is significant, because of the nature of the law. As Pema Levy explains at Mother Jones, the ND law requires ND voters to show proof of a residential address in order to cast a ballot. But it says that PO boxes don't count. That matters, because Native American voters in ND often lack street address, and instead use PO boxes, because the U.S. Postal Service doesn't provide residential delivery in rural Native American communities.
The legislature enacted the law after the state elected Heidi Heitkamp to the Senate by a very slim margin, and with the strong backing of Native American voters. Heitkamp is the only statewide elected Democrat in the state.
Justice Ginsburg, joined by Justice Kagan, dissented. She wrote that not intervening in the case and vacating an Eighth Circuit stay risks voter confusion (because the law was halted by a lower court for the primaries), and that "the risk of disfranchisement is large."
Tuesday, October 9, 2018
The Seventh Circuit last week upheld Wisconsin's butter-grading system against Dormant Commerce Clause, due process, and equal protection challenges. The ruling means that Wisconsin's butter-grading system stays on the books.
The case, Minerva Dairy v. Harsdorf, took on Wisconsin's law for grading butter, which makes it unlawful "to sell . . . any butter at retail unless it has been graded." To satisfy this requirement, butter may be graded either by a Wisconsin-licensed grader, or by the USDA voluntary butter-grading program. The plaintiff, an Ohio butter producer, argued that the law violated the Dormant Commerce Clause, due process, and equal protection.
The Seventh Circuit disagreed. The court ruled that the law didn't discriminate against interstate commerce, and so didn't violate the Dormant Commerce Clause. (The court didn't even apply Pike v. Bruce Church balancing, because the law didn't discriminate on its face or in effect.) The court also said that Wisconsin's butter-grading-licensing standards, which require a person to come to Wisconsin to test to be a Wisconsin-certified butter-grader, didn't discriminate, either (even though a would-be butter-grader who lives in or close to Wisconsin can get there easier than a would-be grader who lives farther away).
The court rejected the due process and equal protection challenges, too, because the law satisfied rational basis review.
Thursday, October 4, 2018
In his opinion in Ramos v. Nielsen, United States District Judge Edward Chen of the Northern District of California enjoined the federal government's termination of TPS — Temporary Protected Status — designations for Haiti, Sudan, Nicaragua, and El Salvador.
As we previously discussed related to the NAACP complaint filed in January in Maryland and related only to Haiti, one argument is that the termination is a violation of equal protection, springing from an intent to discriminate on the basis of race and/or ethnicity.
Judge Chen's opinion finds that the preliminary injunction is warranted based on a likelihood of prevailing on the merits of an Administrative Procedure Act claim, but also on the merits of the equal protection claim. Judge Chen applied the factors from Village of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977), and concluded that there was sufficient evidence to
raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations. In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.
there were departures from the normal procedural sequence during the TPS decision-making process; that is, instead of considering all current country conditions as had been done in previous administrations, the DHS political appointees in the current administration made TPS decisions turn on whether the originating condition or conditions directly related thereto continued to exist, disregarding all other current conditions no matter how bad. Moreover, at the apparent behest of then-DHS Secretary Kelly, there was an effort to gather negative information about Haitian TPS beneficiaries prior to the decision on Haiti’s TP designation – in particular, whether Haitian TPS beneficiaries had been convicted of crimes or were on public or private relief. See Degen Decl., Ex. 84 (email). There is no indication that these factors had previously been considered by DHS in making TPS decisions; indeed, the email indicated that the request for the information should be kept quiet. See Degen Decl., Ex. 84 (email) (“Please keep the prep for this briefing limited to those on this email. If you need a specific data set and need to ask someone to pull it, please do not indicate what it is for. I don’t want this to turn into a big thing were people start prodding and things start leaking out.”). The information sought by the Secretary coincides with racial stereotypes – i.e., that non-whites commit crimes and are on the public dole.
This is yet another judicial finding that the administration has acted with racial animus and the administration is sure to appeal it.
[image: Kirstjen Nielsen, current Secretary of Department of Homeland Security]
Friday, September 28, 2018
In a Memorandum & Order in Students For Fair Admissions (SFFA) v. Harvard, United States District Judge Allison D. Burroughs has denied the cross-motions for summary judgment in this closely-watched case challenging affirmative action admissions at Harvard as discriminating against Asian-American applicants.
Although Harvard is a private university and the claim is under Title VI of the 1964 Civil Rights Act, 42 U.S.C. §2000d et. seq., the applicable precedent involves the constitutionality of affirmative action in higher education under the Equal Protection Clause. As Judge Burroughs explained in footnote 16 of the opinion:
[Defendant] Harvard notes that the Supreme Court has only addressed race-conscious admissions policies of public universities, and suggests that there are “good reasons to think that” the applicable Supreme Court precedent does not apply in the same manner to private universities like Harvard that are subject to Title VI. Because Harvard does not identify any specific reasons for distinguishing public universities from federally-funded private universities, or explain how the analytical framework would differ for private versus public litigants, the Court at this stage places Harvard on equal footing with a public university in applying Grutter [ v. Bollinger (2003)] and its progeny. See Grutter, 539 U.S. at 343 (“[T]he Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI . . . also fail.”); id. (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment” (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 287 (1978))).
Thus, relying on Fisher v. University Texas at Austin (2013) (Fisher I) and Fisher v. University of Texas at Austin (2016) (Fisher II), as well as Grutter, Judge Burroughs held that strict scrutiny should apply.
After detailing the Harvard admissions policy as implemented and concluding that the case is not moot, Judge Burroughs considered the four claims by SFFA: intentional discrimination, racial balancing, race as a plus factor, and race-neutral alternatives.
First, Judge Burroughs concluded that the dueling reports by experts regarding the presence or absence of a negative effect of being Asian-American on the likelihood of admission essentially precluded summary judgment. The experts' contradictory conclusions derived in part from their "divergent modeling choices" and the "credibility of the expert witnesses in making these critical modeling and analytical choices is best evaluated at the upcoming bench trial." Moreover, "stray" positive and negative remarks were also best evaluated at trial.
Second, Judge Burroughs states that while "racial balancing" has been deemed unconstitutional, the parties present "plausible but conflicting interpretations" of Harvard's use of its own admissions data from previous years. Again, the matter of credibility would be paramount.
Third, SFFA argued that Harvard was not specifically employing the notion of "critical mass" and Harvard was not considering race as a mere "plus factor." Judge Burroughs concludes that there is no requirement of "critical mass" to satisfy strict scrutiny — the use of "critical mass" was simply part of the admissions policies of the universities in Michigan (in Grutter) and Texas (in Fisher). However, as to the use of race as a plus factor, Judge Burroughs noted that under Fisher II (and Fisher I), the university is entitled to no deference in whether its means chosen is narrowly tailored and thus again the issue of credibility and fact were best determined at trial.
Fourth and finally, SFFA's argument that Harvard has failed to consider race-neutral alternatives, there was a factual dispute regarding the timing of Harvard's reconsideration of such alternatives which coincided with the imminence of the lawsuit in 2014. SFFA's expert argued that Harvard "can easily achieve diversity by increasing socioeconomic preferences; increasing financial aid; reducing or eliminating preferences for legacies, donors, and relatives of faculty and staff; adopting policies using geographic diversity; increasing recruitment efforts; increasing community college transfers; and/or eliminating early action." The Harvard Committee reached the opposite conclusion.
In short, the litigation seems set to proceed to trial perhaps with a path to the United States Supreme Court.
Monday, September 24, 2018
In its divided opinion in Brakebill v. Jaeger, an Eighth Circuit panel has stayed a district judge's injunction against enforcement of a North Dakota statute requiring a valid form of identification that includes the prospective voter's current residential street address in North Dakota. The district court had found that this provision violated the Equal Protection Clause and ordered that the state accept either a "current residential street address or a current mailing address (P.O. Box or other address) in North Dakota.” (The district court had also found that other tribal identification rules violated equal protection, but the state did not appeal those portions of the injunction.)
The majority of the Eighth Circuit reasoned that this residential street address requirement was neutral and as applied to the six named plaintiffs, did not impose an excessive burden. In its brief opinion, the majority concluded that North Dakota was not only likely to succeed on the merits, but would also be irreparably harmed without a stay, in large part because North Dakota does not have a voter registration requirement. "
If the Secretary must accept forms of identification that list only a mailing address, such as a post office box, then voters could cast a ballot in the wrong precinct and dilute the votes of those who reside in the precinct. Enough wrong-precinct voters could even affect the outcome of a local election. The dissent’s suggestion that the State protect itself from this harm by using maps or affidavits would require North Dakota to reinstate self-certification methods that the legislature already deemed insufficiently reliable when it adopted the residential street address requirement. The inability to require proof of a residential street address in North Dakota also opens the possibility of fraud by voters who have obtained a North Dakota form of identification but reside in another State while maintaining a mailing address in North Dakota to vote. The dissent deems this impossible, because only a resident of the State is supposed to receive a form of identification, but the injunction prevents election officials from verifying that a voter with such an identification has a current residential street address in the State. Even if the State can prosecute fraudulent voters after the fact, it would be irreparably harmed by allowing them to vote in the election.
Dissenting, Judge Jane Kelly argued that it was important that identification cards required a fee, and though state law required the Department of Transportation to provide free non-driver identification cards, the state did not do so in practice (and its website actually stated that a fee was necessary). Instead of an injury to North Dakota, Judge Kelly contended that the injury would be to prospective voters, like the six Native American plaintiffs, who would be potentially denied the right to vote.
Wednesday, September 5, 2018
In an extensive opinion in Whole Woman's Health v. Smith, District Judge David Alan Ezra ruled that Texas statute and regulations requiring internment (or cremation) for "embryonic and fetal tissue disposal" were unconstitutional. Judge Ezra's opinion occurred after a one-week bench trial in which the issue of cost of compliance was excluded.
Judge Ezra found that the Texas laws violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
On the equal protection issue, Judge Ezra found that the Texas laws' distinction between "pre-implantation and post-implantation embryos and the facilities that handle them" was not rationally related to the legitimate government interest in "respecting potential life." Thus, even under the rational basis test, the laws did not survive.
On the due process issue, Judge Ezra applied the doctrine from the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, and found that the Texas laws
place substantial obstacles in the path of women seeking pregnancy-related medical care, particularly a previability abortion, while offering minimal benefits.
By endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive burdens upon personal decisions concerning procreation, especially upon the right of the woman to chose to have an abortion. And most importantly, the evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the health care system designed to serve women of childbearing age within the State of Texas.
This failure, Judge Ezra makes clear, is not simply for women seeking an abortion, but for all women seeking pregnancy care for complications.
Thus the court declared the laws and implementing regulations unconstitutional and enjoined their enforcement.
Monday, August 27, 2018
In an extensive opinion, a three judge court in Common Cause v. Rucho (& League of Women Voters v. Rucho) held that North Carolina's 2016 redistricting plan was a product of partisan gerrymandering and violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution.
The opinion is almost 300 pages with an additional comparatively brief 25 plus page concurring and dissenting opinion, but the three judge court is often discussing familiar matters. Recall that the court had reached this result in January 2018. However, recall also that the United States Supreme Court issued a stay shortly thereafter. In July 2018, the United States Supreme Court vacated the three judge court's decision in Rucho in light of Gill v. Whitford (2018), which, the three judge court states, "addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause." The three judge court's opinion in Rucho holds that standing was satisfied under the Gill test as to equal protection and further that "Gill did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment."
As for the merits, Gill v. Whitford is not particularly useful; as we said when Gill was decided, it (with the per curiam decision in Benisek v. Lamone, "leave the constitutionality of partisan gerrymandering as unsettled as before." Thus, the three judge court had little guidance to reconsider its previous conclusions.
Perhaps the most noteworthy aspect of the three judge court's decision today in Rucho, however, is the remedy: the court notes that the circumstances are unusual and writes:
we decline to rule out the possibility that the State should be enjoined from conducting any further congressional elections using the 2016 Plan. For example, it may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election. Or, it may be viable for the State to conduct a primary election on November 6, 2018, using a constitutionally compliant congressional districting plan, and then conduct a general election sometime before the new Congress is seated in January 2019. Accordingly, no later than 5 p.m. on August 31, 2018, the parties shall file briefs addressing whether this Court should allow the State to conduct any future election using the 2016 Plan. Those briefs should discuss the viability of the alternatives discussed above, as well as any other potential schedules for conducting elections using a constitutionally compliant plan that would not unduly interfere with the State’s election machinery or confuse voters. Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
[emphasis in original].
The November election is in 70 days.
Wednesday, August 22, 2018
The Fifth Circuit last week rejected a challenge by faculty to a Texas law that allows concealed carry in public university classrooms. The ruling ends the challenge, and upholds the state Campus Carry Act and University of Texas at Austin policies permitting concealed carry.
The case, Glass v. Paxton, arose when faculty at the University of Texas challenge the Campus Carry Act and UT policies that permitted concealed carry for certain students on campus. Faculty challenged the Act under the First Amendment, Second Amendment, and Equal Protection Clause. The court rejected each of those challenges.
As to the First Amendment, the court held that the plaintiff lacked standing because she couldn't show, under the "certainly impending" standard of Amnesty International, "that a license-holder will illegally brandish a firearm in a classroom."
As to the Second Amendment, the court rejected the plaintiff's argument that the concealed carry on campus wasn't "well regulated." The court said that the "well regulated" requirement is part of the Second Amendment's prefatory clause, and that the Court in Heller ruled "that the Second Amendment's prefatory clause does not limit its operative clause."
Finally, as to equal protection, the court said that Texas's interests in the law--public safety and self-defense--were sufficient to pass rational basis review. "Here, Texas's rationales are arguable at the very least."
Monday, August 6, 2018
United States District Judge Colleen Kollar-Kotelley has reaffirmed the injunction of the ban on transgender individuals in the military, first announced on Twitter by the President in Doe v. Trump in two opinions. Recall that in October, the judge issued a lengthy opinion and a preliminary injunction against the ban as likely to violate equal protection.
The case returned to Judge Kollar-Kotelley after an unsuccessful appeal and attempt to stay the preliminary injunction. The government moved to dismiss, essentially rearguing its contentions regarding standing.
In a 34 page opinion, the judge again rejected these arguments. But the government newly argued for dismissal and dissolution of the preliminary injunction because the 2018 "Mattis Implementation Plan" represents a “new policy” divorced and distinct from the President’s 2017 policy directives that were previously enjoined by this Court, and that the Mattis Implementation Plan does not harm the Plaintiffs in this case. However, the judge held that "whatever legal relevance the Mattis
Implementation Plan might have, it has not fundamentally changed the circumstances of this lawsuit such that Plaintiffs’ claims should be dismissed for lack of jurisdiction, or that the need for the Court’s preliminary injunction has dissipated." In evaluating the Mattis Implementation Plan, the judge stated:
the Mattis Implementation Plan in fact prohibits transgender military service—just as President Trump’s 2017 directives ordered. It is true that the plan takes a slightly less direct approach to accomplishing this goal than the President’s 2017 tweet and memorandum. Instead of expressly banning all “transgender individuals” from military service, the Mattis Implementation Plan works by absolutely disqualifying individuals who require or have undergone gender transition, generally disqualifying individuals with a history or diagnosis of gender dysphoria, and, to the extent that there are any individuals who identify as “transgender” but do not fall under the first two categories, only allowing them to serve “in their biological sex” (which means that openly transgender persons are generally not allowed to serve in conformance with their identity).
[emphasis in original]. In short, she concluded that "whatever legal relevance the Mattis Implementation Plan and associated documents might have, they are not sufficiently divorced from, or different than, the President’s 2017 directive."
However, in a separate and relatively brief opinion, she did grant the government's motion to dismiss Donald Trump as a defendant. The government moved to dismiss the president as a defendant and for a protective order regarding discovery. Judge Kollar-Kotelly concluded that
Through this lawsuit, Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful. Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.
She noted that confrontation between the judicial and executive branch should be avoided whenever possible, but such confrontation
can be easily avoided here, because dismissing the President will have little or no substantive effect on this litigation. Plaintiffs argue that the acts of the President himself are central to this case, and the Court agrees. But dismissing the President as a Defendant does not mean that those acts will not be subject to judicial review. The Court can still review those acts and, if Plaintiffs are successful in proving that they are unconstitutional, Plaintiffs can still obtain all of the relief that they seek from the other Defendants.
Given that the President is no longer a defendant, the judge ruled the motion for a protective order regarding discovery was moot, but
the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President. The Court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point.
While the plaintiffs had argued that dismissing the president was not warranted, Judge Kollar-Kotelly's dismissal has little bearing on the ultimate resolution of the case, a conclusion she reiterated several times. It also has little effect on the present status of the case; the accompanying order emphasized that "The injunction remains in force as it applies to all other Defendants" (italics in original).
Thursday, July 26, 2018
In an extensive and scholarly opinion in New York v. United States Department of Commerce consolidated with New York Immigration Coalition v. United States Department of Commerce, federal judge Jesse Furman has denied in part motions to dismiss and allowed the case to proceed.
Recall that the United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, has provoked several challenges including the one filed in the Southern District of New York, New York v. United States Department of Commerce, raising constitutional objections on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors. Two additional counts are based on the Administration Procedure Act.
The New York Immigration Coalition complaint has "five nongovernmental organizations" as plaintiffs, challenging the Secretary’s decision on the same grounds as the states' complaint but importantly on the additional ground of equal protection.
Judge Furman first found that the "government plaintiffs" and well as the "NGO plaintiffs" had standing and then rejected that the lawsuits were political questions barred from judicial review. As Judge Furman concluded:
the Court rejects Defendants’ attempts to insulate Secretary Ross’s decision to reinstate a question about citizenship on the 2020 census from judicial review. Granted, courts must give proper deference to the Secretary, but that does not mean that they lack authority to entertain claims like those pressed here. To the contrary, courts have a critical role to play in reviewing the conduct of the political branches to ensure that the census is conducted in a manner consistent with the Constitution and applicable law.
However, Judge Furman concluded that the Plaintiffs' claims under the Enumeration Clause must be dismissed. For Judge Furman, the constitutional text's broad language combined with a historical practice that has allowed many demographic questions and once included citizenship questions leads to the result that the Secretary has power to include a citizenship query. But as Judge Furman repeatedly emphasized, this does not end the issue. For example, as Judge Furman wrote:
to say that the Secretary has authority under the Enumeration Clauseto ask about citizenship on the census is not to say that the particular exercise of that authority here was constitutional or lawful. The Secretary cannot exercise his authority in a manner that would violate individual constitutional rights, such as the right to equal protection of the laws. [citations omitted]. Nor, under the APA, may he exercise his authority in a manner that would be “arbitrary” and “capricious.” 5 U.S.C. § 706(2)(A);[citation omitted]. Plaintiffs here make both kinds of claims, and the Court’s holding that the Secretary’s decision was consonant with the Enumeration Clause does not resolve those claims.
In his discussion of the equal protection claim (under the Fifth Amendment's inclusion of equal protection), Judge Furman relegated the animus argument to a footnote stating that it need not be discussed because he found that there was a sufficient claim for a denial of equal protection on the basis of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997). Judge Furman concluded that the allegations of discriminatory effect — that inclusion of the citizenship question for all respondents will bear, in the form of diminished political representation and reduced federal funding, more heavily on “Latinos, Asian-Americans, Arab-Americans, and other immigrant communities of color” because the non-response rate is likely to be higher in such communities — were sufficient.
As to the required intent, Judge Furman listed the Arlington Heights factors:
(1) “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he specific sequence of events leading up the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; (4) “[s]ubstantive departures . . . , particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.”
and then discussed each one, focusing on departures from normal procedures (which "include overruling career staff who strongly objected to including the citizenship question, failing to extensively test reintroduction of the question, and ignoring the recommendation of the Census Bureau’s advisory committee") and specific statements, including statements of the President. Judge Furman rejected the federal goverment's argument that consideration of such statements was improper after Trump v. Hawaii, writing that the government's invocation of the case "falls somewhere between facile and frivolous," especially given its practice of truncated quotation. Instead, Judge Furman found
There is nothing in the Court’s opinion [in Trump v. Hawaii] to indicate that its deferential review applies outside of the “national security and foreign affairs context,” let alone that the Court meant to unsettle decades of equal protection jurisprudence regarding the types of evidence a court may look to in determining a government actor’s intent. In fact, even with its “circumscribed judicial inquiry,” the Hawaii Court itself considered “extrinsic evidence” — namely, President Trump’s own statements. If anything, therefore, Hawaii cuts against Defendants’ arguments rather than in their favor.
Judge Furman thus directed the parties to proceed with discovery, inform the court whether the cases should be consolidated, and whether a trial or summary judgment would be more appropriate.
Wednesday, July 25, 2018
In its opinion in Lewis v. Governor of Alabama, a unanimous panel of the Eleventh Circuit has reversed the dismissal of a claim that the Alabama Minimum Wage and Right to Work Act, preempting the City of Birmingham's ordinance raising the minimum wage to $10.10, violated the Equal Protection Clause.
After considering standing and Eleventh Amendment arguments, the panel's opinion, authored by Judge Charles Wilson, proceeded to the "heart of the matter" involving the district judge's dismissal of the plaintiffs' equal protection claims that the Minimum Wage Act purposely discriminates against Birmingham’s black citizens by denying them economic opportunities on account of their race; and the Act violates the political-process doctrine by transferring control from the majority-black Birmingham City Council to the majority-white Alabama Legislature.
The court found that plaintiffs stated a claim on the intentional discrimination claim, applying the factors of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997). The court found that there was definitely a racial impact and that the Act "bears more heavily on one race than another.”The court also considered "the rushed, reactionary, and racially polarized nature of the legislative process; and Alabama’s historical use of state power to deny local black majorities authority over economic decision-making." The court noted that the state's Act "responded directly to the legislative efforts of the majority-black Birmingham City Council, which represents more black citizens (and more black citizens living in poverty) than any other city in Alabama" and was "introduced by a white representative from Alabama’s least diverse area, with the help of fifty-two other white sponsors, and was objected to by all black members of the House and Senate. And it was accelerated through the legislative process in sixteen days with little or no opportunity for public comment or debate." The court concluded that these facts "plausibly imply discriminatory motivations were at play." Moreover, the court found that the district judge applied the incorrect legal standard when evaluating plaintiffs' complaint, a "clearest proof" standard "[r]ecklessly plucked from an unrelated line of precedent" and "contrary to decades of established equal protection jurisprudence."
However, the court affirmed the dismissal of plaintiffs' equal protection claim based on political process, despite the facts, because "to the extent that the plaintiffs allege that the minimum wage policy was 'racialized' because the 'Birmingham African-American community strongly favored' it, that argument clashes with the Supreme Court’s clear instructions" in Schuette v. BAMN (2014).
Thus, the case was remanded and can move forward on the "plausible claim that the Minimum Wage Act had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment."
In his opinion in League of Women Voters v. Detzner, Chief Judge Mark Walker of the Northern District of Florida found that the Florida Secretary of State's Opinion barring early voting on any university or college campus most likely violates the First, Fourteenth, and Twenty-Sixth Amendments, and issued a preliminary injunction.
The issue involves an interpretation of the Florida's Division of Elections, under the Secretary of State, that Florida Statute §101.657(1)(a), passed in 2013, that permits supervisors of elections to “designate any city hall, permanent public library facility, fairground, civic center, courthouse, county commission building, stadium, convention center, government-owned senior center, or government-owned community center as early voting sites.” A question arose as to whether a particular hall on the University of Florida campus qualified and in response the state official issued an Opinion banning all university and college facilities for use in early voting.
Judge Walker found that the state's interpretation of the early voting statute was constitutionally faulty. While early voting is not required and may be classified as a convenience, Judge Walker quoted Bush v. Gore (2000) — “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another" — to reason that constitutional problems emerge "when conveniences are available for some people and affirmatively blocked for others." Judge Walker began the opinion by noting that the number of people effected was substantial: more than 1.1 million "young men and women were enrolled in institutions of higher learning" in Florida in 2016, nearly 830,000 in public institutions, as well as there being another 107,000 staff members at the public institutions. To stress the number of people involved, Judge Walker wrote:
Put another way, the number of people who live and work on Florida’s public college and university campuses is greater than the population of Jacksonville, Florida—or the populations of North Dakota, South Dakota, Alaska, Vermont, Wyoming, and the District of Columbia.
Judge Walker first applied the the Anderson-Burdick balancing test for less than "severe restrictions." (Recall in Burdick v. Takushi (1992) the Court upheld Hawai'i 's ban on write-in voting). Judge Walker stated that even assuming the state's opinion could be construed as a reasonable nondiscriminatory restriction, it imposed significant burdens on the plaintiffs' First and Fourteenth Amendment rights to vote, categorically prohibiting the use of on-campus early voting and thus "lopsidedly impacts Florida's youngest voters," a class of voters "particularly invested in early voting" with approximately 43 percent of Florida's college students voting early in 2016. These burdens were not justified by the state's interests — which the Judge stated "one must squint hard to identify"— in following state law, preventing parking issues, and avoiding on-campus disruption.
As to the Twenty-Sixth Amendment issue, Judge Walker found that while there was a "dearth of guidance on what test applies" when the claimed infringement is not a facial denial of voting for any citizen 18 years or older, the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) was generally accepted. Judge Walker found that the state's approach revealed a stark pattern of discrimination unexplainable on grounds other than age. Judge Walker also compared the state's policy to earlier seemingly neutral attempts to effect African-American voters, noting that
This Court does not lightly compare contemporary laws and policies to more shameful eras of American history. But addressing intentional discrimination does not require kid gloves.
Having found that there was a likelihood that plaintiffs would prevail on the merits, Judge Walker also found the other requirements for a preliminary injunction were met. The judge instructed the Defendant Secretary of State to issue a directive to supervisors of elections that they retain discretion to implement the Florida statute including any sites that may be on university or college campuses.
Monday, July 9, 2018
The Fourteenth Amendment was ratified on July 9, 1868.
Here's the text:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
[images National Archives via]
July 9, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, History, Privileges or Immunities: Fourteenth Amendment , Procedural Due Process, Race, Reconstruction Era Amendments | Permalink | Comments (0)
Tuesday, July 3, 2018
Federal District Judge Enjoins Tennessee's Revocation of Drivers License for Failure to Pay Court Debt
In an opinion in Thomas v. Haslam, United States District Judge for the Middle District of Tennessee, Aleta Trauger, has held unconstitutional Tennessee Code §40-24-105(b) which revokes the driver's license of any person who has failed to pay court debt for a year or more.
Judge Trauger had issued an extensive opinion in March, appended to the current opinion, detailing the issues, holding the plaintiffs presented a justiciable claim, certifying the class, and allowing for additional briefing on the summary judgment motions on the constitutional issues.
The constitutional challenge to the driver's license revocation is grounded in Griffin v. Illinois (1956) and its progeny, which, as Judge Trauger explained "implicates both Due Process and Equal Protection principles in ways that defy an easy application of the Court’s more general precedents involving either constitutional guarantee alone" and should not be subject to a "pigeonhole analysis" of either strict scrutiny or rational basis review. However, Judge Trauger ruled that under Sixth Circuit precedent, rational basis must be applied, "which asks only whether the challenged policy is rationally related to a legitimate government purpose." Yet in the context of distinctions based on indigence, this rational basis should be one of "extra care" if "a statute treats the rich better than the poor in a way that will affirmatively make the poor poorer."
the law is not merely ineffective; it is powerfully counterproductive. If a person has no resources to pay a debt, he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver’s license away sabotages that prospect. For one thing, the lack of a driver’s license substantially limits one’s ability to obtain and maintain employment. Even aside from the effect on employment, however, the inability to drive introduces new obstacles, risks, and costs to a wide array of life activities, as the former driver is forced into a daily ordeal of logistical triage to compensate for his inadequate transportation. In short, losing one’s driver’s license simultaneously makes the burdens of life more expensive and renders the prospect of amassing the resources needed to overcome those burdens more remote.
Thus, while a lenient standard, Judge Trauger held that the lack of an indigent exception in the driver's license revocation penalty for failure to pay court debt fails rational basis scrutiny
Additionally, Judge Trauger held that the Tennessee statute does not afford procedural due process and that a "driver facing revocation for nonpayment of court debt is entitled to a pre-revocation notice and determination related to his indigence," to be developed by the state.
While issuing an injunction against the statute's future enforcement, Judge Trauger ordered the state to "submit a plan, within 60 days, for lifting the revocations of drivers whose licenses were revoked under Tenn. Code Ann. § 40-24-105(b) and providing an appropriate process for reinstatement."
Or, of course, Tennessee could appeal.
Monday, July 2, 2018
In his opinion in Gary B. v. Snyder, United States District Judge for the Eastern District of Michigan Stephen Murphy dismissed a complaint alleging constitutional violations in the public schools in Detroit.
After finding the plaintiff students had standing and that the complaint against Governor Snyder and other officials was not barred by Eleventh Amendment immunity, Judge Snyder dismissed the Due Process Clause and Equal Protection Clause claims.
On the Due Process Clause claim, Judge Snyder noted that the constitutional right at issue is framed as "access to literacy" which "speaks to an opportunity" rather than simply literacy which is an "outcome of education." Using this definition, Judge Snyder distinguished the complaint from landmark cases such as San Antonio Independent School District v. Rodriguez (1973), rejecting "education" as a fundamental right. Nevertheless, applying the "standard" test to determine a fundamental right from Washington v. Glucksberg (1997) — "fundamental rights are only those 'objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed'"— even through the lens of Obergefell v. Hodges (2015), Judge Snyder reasoned that fundamental rights are generally only "negative rights."
Conceivably, a case like this one could be argued on either positive- or negative- right theories. As a positive right, access to literacy (i.e., a minimally adequate education) is so important that the state is compelled to provide it. As a negative right, access to literacy is so important that the state may not hinder Plaintiffs' attempts to secure it. ***
But a violation of negative rights is not what the Complaint truly seems to argue. The Complaint explains, in great detail, that the instruction and resources in Plaintiffs' schools are inadequate.
Judge Snyder reasoned that the Supreme Court's understanding of a "fundamental right," requires finding that neither liberty nor justice would exist absent state-provided literacy access, which would be "difficult to square with the fact that '[t]here was no federal or state-run school system anywhere in the United States as late as 1830.'" Thus, for Judge Snyder, the "ordered liberty" prong is tantamount to historical roots:
School districts at the time of the Constitution's ratification were formed 'when a group of farms came together and decided to construct a public building for schooling, where their children could gather and be taught reading, writing, and moral codes of instruction.' [citation omitted] The history evinces a deep American commitment to education, but runs counter to the notion that ordered society demands that a state provide one.
Thus, he concluded:
The conditions and outcomes of Plaintiffs' schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society. But the Court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no.
Judge Murphy concluded that the Equal Protection Clause claim was similarly not founded. The court repeats that there is no fundamental right and further finds that there is no racial classification because there to be a "relevant comparator school" requires not only that the school in question have a different racial composition that the 97% African-American schools in Detroit but also that the school "experienced relevant state interventions" like the schools in Detroit. Thus, rational basis scrutiny applies at its most deferential — whether "there is any reasonably conceivable state of facts that could provide a rational basis for the classification" — and the plaintiffs did not plead "specific decisions Defendants made concerning Plaintiffs' schools that could have been made differently" and were thus irrational.
The dismissal of the complaint makes it ripe for appeal.
[image: Paul-Constant Soyer, Little Girl Reading (1864) via]