Sunday, August 6, 2017
You may recall for Martha Davis' post on preemption, Missouri legislators overrode St. Louis' efforts to raise the minimum wage within city limits.
Missouri continues to lead the nation in disregard of human rights. In response, last week the NAACP issued its first ever state-wide travel advisory. The NAACP warns people of color to avoid the entire state of Missouri through August 28th. The warning comes after a disturbing series of events. Since the presidential election, an increase in race based incidents has been reported nation wide. Missouri was, of course, the scene of the notorious Michael Brown killing. Recently the Missouri Attorney General revealed that African-Americans are 75% more likely to be stopped by police. Derrick Johnson, interim NAACP president and CEO stated: “The numerous racist incidents, and the statistics cited by the Missouri Attorney General in the advisory, namely the fact that African Americans in Missouri are 75 percent more likely to be stopped and searched by law enforcement officers than Caucasians, are unconscionable, and are simply unacceptable in a progressive society."
Missouri Bill SB 43, signed by the governor on June 30th, virtually legalized individual harassment and discrimination in the state, while prohibiting self-defense by those who experience the harassment. This bill restricted the civil rights African-Americans and other vulnerable populations, including women and immigrants. The bill shifted the burden to the Plaintiffs to prove that their protected class was the "motivating" factor in the firing or other damaging action. Not only was the burden of proof shifted, but the amount of potential damages is capped. The governor disguised his discriminatory action by referring to this law as a "pro-business" move.
The NAACP issued the state-wide advisory partially in response to the implementation of the "Jim Crow" bill, SB 43.
Thursday, August 3, 2017
As law profs are preparing for fall classes, they may be expanding their syllabi to cover one issue in greater depth: state preemption of local laws. It is an issue with profound implications for local human rights implementation. The state preemption issue has hit the news most recently because of Texas' preemption of local sanctuary laws, Missouri's preemption of St. Louis' living wage law, and continued disputes regarding transgender rights at the local and state levels.
An excellent state-by- state overview of this issue is the National League of Cities report, City Rights in an Era of Preemption. The organization Preemption Watch also provides state-by-state analyses of preemption in a number of areas, though it does not cover sanctuary initiatives. Pew Charitable Trusts has weighed in on the philosophical and practical issues raised by state preemption of local laws. The University of Michigan has canvassed local government views of state preemption, with some nuanced results.
A growing number of scholars are addressing local preemption issues. Lori Riverstone-Newell's May 2017 article in Publius provides a clear overview from a policy perspective. Paul Diller's article in the 2009 B.U. Law Review, Intrastate Preemption, provides a thoughtful grounding in the legal issues. A more recent article, Kenneth Stahl, Preemption, Federalism and Local Democracy, 44 Fordham Urb. L.J. 133 (2017) updates the developments and examines the implications of state preemption for democratic values.
Are there other resources on state preemption that you would recommend? Post in the comment section, or send to the editors so that we can include it in a future blog.
Wednesday, August 2, 2017
Education Secretary DeVos has requested comments on de-regulation. Much recent controversy concerns which standard is to be used by schools in determining whether a student is responsible for sexual assault and other gender based harassment and discrimination under Title IX.
Many comments submitted to date are anti use of the “preponderance of the evidence” standard even though that standard is the one used in civil rights and other discrimination claims. Proponents of the use of a higher standard claim that when sexual assault is alleged, the risk of expulsion and damage to the accused’s reputation demands the use of “clear and convincing” or “beyond a reasonable doubt.” Survivor advocates defend the use of the “preponderance of the evidence” as necessary not only for consistency in discrimination claims, but because any higher standard makes successful hearings on the part of the survivor nearly impossible.
Over 100 law professors have signed a White Paper drafted by Profs. Kathleen Baker, Deborah Brake and Nancy Cantalupo. The White Paper explains the historic use of the “preponderance of the evidence” standard in discrimination cases.
Comments on whether de-regulation of Title IX is necessary or beneficial may be made here. Comments are due on before mid-night on August 21.
Those law professors posting are welcome to send their comments to the HRAH Blog editors who will organize them for publication on the blog.
Tuesday, August 1, 2017
. . . listen in on some of the human rights-related events at the annual American Bar Association meeting in NYC, from August 10-15, 2017. Many of the programs will be live-streamed. Here are several that will be of interest to our readers:
From Standing Rock to Flint: Water Rights, Race and Resistance, Aug. 13, 9 - 10:30 a.m. Live-stream will be available here.