Ms. Wang’s claim is based upon much more than an abstract policy argument over the fairness of unpaid internships.  Generally speaking, individuals who work in the private sector must be compensated under the Fair Labor Standards Act (“FLSA”).  Exemptions from this federal statute’s wage and hour provisions are very limited, especially in regards to work performed by employees in the “for-profit” private sector.  The U.S. Department of Labor, responsible for enforcing the FLSA, released a document in 2010 stating that six criteria must be met in order to exempt a “for-profit” private sector employer from having to pay interns.  Those criteria are:

1. The internship must be similar to training given in an educational environment (in other words, provides vocational skills…answering phones and getting coffee do not cut it).
2. The internship must be for the benefit of the intern (the value of the educational experience must predominate over the value of the work that the employer receives).
3. The internship must not displace regular employees.
4. The employer must derive no immediate advantage from the intern’s activities.
5. The intern must not necessarily be entitled to a job at the internship’s completion.
6. The employer and intern must both understand that the intern is not entitled to compensation.

Photocopying, pouring coffee, and answering telephones certainly do not meet such requirements.  Over one million Americans work as interns each year, and about half are not paid.  Many of these unpaid positions should be paid under the Department of Labor’s criteria, but a lack of enforcement has allowed such non-payment to persist.  Under the Fair Labor Standards Act, the unpaid interns have standing to sue their employers over wage and hour violations, but the Department of Labor can also bring such lawsuits (regardless of whether the “unpaid intern” wants such a suit to proceed).  More vigorous enforcement of unpaid internships must start with the Secretary and not the unpaid interns themselves.  Some interns do not know of their rights, others worry about offending their employer.  There is also the worry that suing or even just complaining might make it prohibitively difficult to secure a “real job” in the future.  As a result, it is unlikely that students will step forward—like Xuedan Wang has done—with any regularity.

The question thus becomes: should the Department of Labor, which has very scarcely enforced FLSA protections on behalf of unpaid interns, step up enforcement efforts and attempt to broadly enforce that interns be compensated (except for the uncommon situations in which the six criteria are met)?  Last weekend, the New York Times got into the debate, posting the opinions of five different commentators that specifically addressed this question: “Do Unpaid Internships Exploit College Students?”  In many ways, the answer is yes.  Going back to Ms. Wang’s complaint:

“Employers’ failure to compensate interns for their work, and the prevalence of the practice nationwide, curtails opportunities for employment, fosters class divisions between those who can afford to work for no wage and those who cannot, and indirectly contributes to rising unemployment.”

If unpaid internships are allowed to persist when the six criteria have not been met, employers will continue to have a strong incentive to re-brand the division of labor within their businesses, replacing paid internships and/or full-time jobs with unpaid internships to save on labor costs.  In this tough economic climate, employers have an even greater incentive to use unpaid labor, because there is a larger pool of students and employees who cannot find work, and many of these people will work for free in hopes of turning the unpaid work into a full-time job or believing that the resume addition will make it easier to find a job elsewhere.  Additionally, unpaid internships exacerbate social class divisions.  Certain industries in particular, such as publishing, journalism, and entertainment, “now virtually require a period of unpaid work, effectively barring young people from less privileged backgrounds [from entering those professions],” writes Ross Perlin, author of a book about unpaid internships.  The extremely fortunate recent college graduates who can work for a publishing company in Manhattan without an income thanks to their parents have an enormous advantage in this competitive job market.

The Fair Labor Standards Act implies that the Department of Labor should enforce this provision vigorously, regardless of opinions about whether unpaid internships do more harm than good or vice versa.  An economic argument can certainly be made that unpaid internships—assuming the intern chooses such a position voluntarily—make both parties better off: they provide valuable opportunities to both the employer and the intern that would not otherwise exist, and thus such opportunities should be permitted.  The remedial nature of the FLSA, however, rejects this free-market approach.  An analogous situation is arguing against having a minimum wage.  There are meritorious economic arguments in favor of abolishing the minimum wage, but such arguments cannot free employers from paying it.   By passing the FLSA, Congress implicitly decided that the protection employees receive from a minimum wage outweighs the downside of discouraging employers from hiring when employers cannot pay at or above this price floor.  Requiring employers to pay most private-sector interns serves the same goals: protecting against exploitation that exists when there is an imbalance of bargaining power between employers and employees is presumed to be more important than the opportunities that are lost as a result of this mandate to pay.  Nothing in the Fair Labor Standards Act lets employers treat “interns” any differently than “employees,” unless the internship is truly “training” that meets all six criteria described above.

Enforcing the statute vigorously (again, only in regards to the “for-profit” private sector) would not have any catastrophic affects; the argument that many opportunities would disappear because employers cannot presently afford to pay their interns seems unconvincing.  If an intern’s work is worth less to the employer than the minimum wage, then the intern is probably not missing out on very much of an opportunity.  Enforcement of the statute would compel most employers to pay their interns at least minimum wage as compensation for the enormous amount of value that hundreds of thousands of unpaid interns are creating each year.

In January 2009, Thomas Pauli attempted to stay at Grand Rapids’s two homeless shelters, Guiding Light Mission and Mel Trotter Ministries. They turned him away, as they were aware that he had been convicted of a sexual crime eighteen years earlier. Pauli lay down on the sidewalk, went to sleep, and froze to death.

In response, the ACLU brought two constitutional challenges to the statute, arguing that the law violated the prohibition on cruel and unusual punishment and on ex post facto punishment. The State of Michigan, in defense, claimed that SORA did not constitute “punishment” at all, and thus was not subject to either challenge. In Smith v. Doe, the Supreme Court articulated the two-step inquiry the court would evaluate in determining “punishment:” The law is punishment if punitive in either intent or effect. Pauli was convicted in 1991; the Michigan legislature passed SORA in 2005. If relegating Pauli to freeze to death is “punishment,” it would have been applied retroactively and thus unconstitutionally. The ACLU also argued that, if punishment, the restriction was cruel and unusual. Given the location of Grand Rapids’ homeless shelters and its climate, the restriction almost ensured the outcome. A post-release death by freezing is grossly disproportionate to Pauli’s crime and thus constituted cruel and unusual punishment.

The court refused to evaluate either constitutional claim, despite their strength, instead deciding the case on grounds of statutory interpretation. The opinion argued that SORA simply did not apply in this case, as the police officers had misunderstood the term “reside.” The court revised “reside,” but as narrowly as possible: “A registrant does not violate SORA’s residency restrictions by using an emergency overnight shelter under the following conditions: (1) users are admitted to the shelter in the evening and required to leave in the morning; and (2) users have no expectation of obtaining a place in the shelter on any given night.” Instead of facing the troubling constitutional questions, or broadly revising the meaning of the statute to avoid them, the court altered the meaning of the statute just enough to prevent a precise duplicate of Pauli’s death.

We may have two broad concerns with burgeoning sex offender registries and their consequences. First, overly broad statutes may rope in offenders who do not belong there: Men guilty of urinating in public or seventeen-year-olds having consensual sex with their slightly younger girlfriends. On the rare occasion that a mainstream publication argues that sex offender registries are abusive, it usually finds this story, where a (mostly) innocent party gets caught in the dragnet.

Our second concern is that restrictions that come with sex offender registries may be too harsh even for offenders guilty of serious crimes. Although public disgust makes this case difficult to make, the death of Pauli was a rare opportunity, with facts compelling enough to force the court to acknowledge the brutality of which the registries are capable. Instead of evaluating the challenges, the court modified the statute to avoid them. By ignoring the constitutional concerns, the court missed the opportunity to honestly confront them.

[Update2 - 1PM February 8] The Fifth Circuit has ruled 2-1 to lift the stay of Turner’s execution, and Mississippi officials say that they plan to carry out the execution as originally scheduled this evening at 6PM.  Turner’s petition to the Supreme Court is still pending.

[Update - 7PM February 6] U.S. District Judge Carlton Reeves in Jackson, Mississippi has blocked Turner’s execution until at least February 20th.  The order is a response to the argument from the Louisiana Capital Assistance Center that Mississippi corrections officials have denied Mr. Turner access to mental health professionals to evaluate his mental illness.  The evaluations could be critical to the success of Mr. Turner’s petition to the Supreme Court, described in the original post below.

[Original - 4:30PM February 5] Barring action by the United States Supreme Court or the governor, Edwin Hart Turner will be executed by the state of Mississippi at 6 p.m. on Wednesday, February 8, 2012. Turner, represented by attorneys from the Louisiana Capital Assistance Center, has filed a petition for a writ of certiorari to the Supreme Court arguing that the pending execution would violate the Eighth Amendment’s prohibition on cruel and unusual punishments because at the time of his offense Mr. Turner “suffered from a serious mental illness that substantially impaired his ability (a) to appreciate the nature, consequences, or wrongfulness of his conduct, (b) to exercise rational judgment in relation to conduct; or (c) to conform his conduct to the requirements of the law.” Pet. at i. This formulation of the effect of mental illness on criminal culpability is taken directly from a resolution adopted by the American Bar Association recommending that defendants who suffer from the described effects of mental illness should not be eligible for capital punishment. Though the Supreme Court has not yet placed a categorical bar on the execution of the mentally ill, Mr. Turner can certainly draw hope from recent decisions by the Court placing such categorical bars on the execution of the mentally retarded and minors. The current members of the Court may be receptive to the argument made in Mr. Turner’s brief, and should they grant the petition, Mr. Turner’s case may lead to a decision demanding a more humane system for the imposition of capital punishment.

Mr. Turner’s great-grandmother was diagnosed as schizophrenic and committed to the state mental hospital three times. Pet. at n. 14. Her daughter was also committed to the hospital three times for schizophrenia, the third time for four years. Id. Edwin Turner, Mr. Turner’s father and namesake, committed suicide by firing a gun into a shed full of dynamite. Id. When he was eighteen years old, Mr. Turner attempted suicide by firing a rifle into his mouth, which left him with permanent and severe facial disfigurement. Pet. at 7. Since that time, Mr. Turner has worn a towel wrapped around his face to hide his disfigurement, which was true both when he committed the murders and when he appeared in court. Pet. at 8. After being hospitalized for slitting his wrists, Mr. Turner was readmitted to the hospital by court order and treated for a major depressive disorder and personality disorder. Pet. at 8-9. The first cert petition on behalf of Mr. Turner focused on the question of whether his trial lawyers missed evidence that Mr. Turner’s mental illness was not “well controlled” after his release from the hospital, as stated by the defense expert. 2011 Pet. at 4-5. Those close to Mr. Turner recall him staying up all night writing because “his mind was going too fast.” Though normally self-conscious, at one point shortly before the crimes he stripped off his clothes and danced in bar. Only a few days before the crimes he broke down sobbing uncontrollably, at various times saying both “I am not a bad person,” and “I am a bad person,” and then woke up the next morning with no memory of his actions. 2011 Pet. at 6.

Six weeks after his release from the court ordered hospitalization, on the night of December 12, 1995, Mr. Turner and his friend, Paul Murrell Stewart, decided to rob a local truck stop. Mr. Turner shot Eddie Brooks, an employee at the truck stop, in the chest and then in the head. The two men moved on to a gas station, where Stewart went inside to rob the store, and Mr. Turner remained outside and shot Everett Curry, pleading for his life, in the head. In addition to his “signature towel,” Mr. Turner committed the murders while wearing a jacket that said “Turner.” The robberies netted a total of about $400, money of which Mr. Turner was not in need. Stewart testified against Mr. Turner and received a life sentence, while Mr. Turner was convicted of two counts of capital murder and sentenced to death on each count. Stewart has written a letter to Mr. Turner about the night of the murders stating “I thought you went completely insane, and didn’t think you knew what you were doing!” 2011 Pet. at 7.

Mr. Turner’s argument to the Supreme Court is that “the death penalty is reserved for a narrow category of crimes and offenders,” and his execution would be a violation of the Eighth Amendment because his mental illness makes it inappropriate to classify him “among the worst offenders.” Roper v. Simmons, 543 U.S. 551, 569 (2005); see also Pet. at 17. In Roper, the Court placed a categorical prohibition on the execution of juvenile defendants. The Court in Roper quoted from Atkins v. Virginia, decided only three years earlier, to declare that “[c]apital punishment must be limited to those offenders. . .whose extreme culpability makes them ‘the most deserving of execution.’”Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. 304, 319 (2002)); see also Pet. at 17. The Court in Atkins had imposed a similar categorical prohibition on the execution of the mentally retarded. 536 U.S. at 321. Both Atkins and Roper pointed to the reduced personal culpability of the two classes of defendants, a trait, Mr. Turner’s attorneys argue, that is shared by the mentally ill as a result of “substantial impairment of cognitive processing or impulse control.” Pet. at 18. The petition additionally argues that given both this reduced culpability and reduced ability to act rationally based on available information, the execution of the mentally ill, like the execution of the mentally retarded or juveniles, fails to achieve either an appropriate retributive or deterrent effect. Pet. at 19; see also Atkins, 536 U.S. at 319; Roper, 543 U.S. at 571.

Given the close similarities between the reasoning the Court applied in Atkins and Roper, and the applicability of that reasoning to the mentally ill, Mr. Turner’s case could present an opportunity for the Court to expand on the types of mitigating characteristics that qualify defendants for a categorical exclusion from capital punishment. Atkins was a 6-3 decision, written by now retired Justice Stevens. Stevens’s opinion was joined in its entirety by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer. Justices Rehnquist, Scalia, and Thomas were in the minority, all three joining dissenting opinions by Rehnquist and Scalia. Roper was a 5-4 decision, with O’Connor joining the minority, though writing only for herself in dissent. Critically though, Justice Kennedy wrote the majority opinion in Roper overturning the Court’s contrary ruling in Stanford v. Kentucky, 492 U.S. 361 (1989). Justice Kennedy again wrote for the same majority in Panetti v. Quarterman, 551 U.S. 930 (2007) (Justices Roberts and Alito had replaced Justices Rehnquist and O’Connor in the minority). In Panetti, Kennedy begins by quoting Ford v. Wainwright, 477 U.S. 399, 409-10 (1986): “[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” 551 U.S. at 934 (alteration in original). Kennedy goes on to engage in what the dissent calls “bend[ing] over backward” to allow Panetti to proceed on a second habeas petition. Id. at 963 (Thomas, J., dissenting). Justice Kennedy concludes that Panetti was denied adequate procedures to determine his competency to be executed, id. at 952, and that the Fifth’s Circuit’s definition of incompetency was too restrictive to afford the proper Eighth Amendment protection, id. at 960.

The two Kennedy opinions point to the conclusion that the swing Justice is concerned about narrowing the conditions under which the death penalty can be imposed, and does not feel as constrained as the more conservative Justices by an overriding concern for constitutional federalism or the strict requirements laid down in the Anti-terrorism and Effective Death Penalty Act limiting the federal courts’ ability to review state capital sentences. If this is a valid conclusion from Kennedy’s prior opinions, Mr. Turner should have hope that the Court will be interested in hearing his case, and may in fact rule in his favor. Though the composition of the Court has changed since Atkins, Roper, and Panetti, there is likely still a five-Justice majority willing to be critical of the application of the death penalty in the face of mitigating circumstances. Since Panetti, majority Justices Stevens and Souter have been replaced by Obama appointees Sotomayor and Kagan. In 2011, the Court decided Cullen v. Pinholster, holding that AEDPA requires a federal court reviewing a habeas petition from a capital sentence to review only the record available to the state courts in making a determination of error. 131 S. Ct. 1388, 1398. Justices Kennedy and Kagan both joined this part of the majority opinion. Justice Sotomayor dissented.

The majority also held that on the record before the state courts, the defendant failed to show that the state courts had misapplied Strickland v Washington in holding that trial counsel’s failure to adequately pursue evidence of mental illness did not qualify as ineffective assistance of counsel. Id. at 1403. Though Justice Kennedy also joined this part of the majority opinion, Justice Kagan did not. Justices Kagan and Ginsburg joined the part of Justice Sotomayor’s dissent concluding, inter alia, that “[h]ad counsel conducted an adequate investigation, the judge and jury would have heard credible evidence showing that Pinholster’s criminal acts and aggressive tendencies were attributable to a disadvantaged background, or to emotional and mental problems. They would have learned that Pinholster had the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” Id. at 1432 (Sotomayor, J., dissenting) (internal quotations and citations omitted). Justice Sotomayor’s impassioned dissent, and Justice Kagan’s joining of that dissent, indicate that the two junior Justices are at least likely to replace their predecessors in a five-Justice majority critical of the application of capital punishment to the mentally ill.

Four Justices have to vote to grant a petition for certiorari, and of course five have to vote to decide a case in a certain way. If Justice Kennedy continues his trend of voting to exclude less culpable defendants from receiving capital sentences, and if Justices Kagan and Sotomayor share their predecessors tendencies, then there is likely a five-Justice majority to establish a categorical prohibition on the execution of the mentally ill. First though, four Justices have to vote to hear the case. Justice Kagan has said in the past that she has has no “moral qualms” about the death penalty, and Justice Kennedy joined the majority in its entirety in Pinholster. If there are two of the potential five Justices that are not ready to hear a case asking for further restrictions on the application of capital punishment, the case may never make it before the Court in time to save Mr. Turner. The cert petition itself may even frighten some Justices about the scope of the issues potentially on the table if they chose to hear the case because the petition argues first that there is an evolving standard of decency against the execution of the mentally ill, and then that there is in addition an evolving standard against the death penalty itself. Pet. at 14. Ultimately though, Mr. Turner’s argument is directly within the line of reasoning applied in Atkins and Roper, and those of us who desire a more humane and justified criminal justice system can hope along with Mr. Turner that his petition will be granted in time to save his life.

The old debate about what role creativity ought to play in public education often stumbles upon the basic question of what creativity is, and of whether it can be measured—or even defined—in a meaningful way.  Though there may be much to be said for the axiom that creativity can’t be quantified, at least three states have been working to develop something akin to an objective measure of imagination.  The efforts have been modest and are still in embryo, but they seem to constitute an emerging development in the ongoing effort to review the priorities of American public education.

Leading the way is Massachusetts, which since 2010 has had legislation calling for the development of a so-called “creativity index.”  The aim of the Massachusetts legislation is to develop an index capable of rating every public school in the state according to how effective it is at “teaching, encouraging and fostering creativity in students.”  In explaining how creativity is to be measured, the Massachusetts scheme emphasizes “inputs” rather than “outputs,” pointing out that:

 The index shall be based in part on the creative opportunities in each school as measured by the availability of classes and before-school and after-school programs . . . that provide creative opportunities for students including . . . arts education, debate clubs, science fairs, theatre performances, concerts, filmmaking and independent research.

Note, first, that the Massachusetts scheme leans towards an especially inclusive notion of creativity; the idea seems to be that any academic program that encourages non-systematic thought processes can be counted on to “foster” creativity.  Indeed, the Massachusetts legislation resists the temptation to equate creativity with the arts (however one defines them, after all, it would be odd to contend that the skills that constitute creativity can’t be developed through training in, say, pure math or the natural sciences).  Note also that, in describing the mechanisms by which creativity is supposed to be generated, the Massachusetts legislation emphasizes the role of scalable academic programs rather than of individual teachers.  The focus is less on training educators to imbue their students with modes of thought deemed imaginative, and more on exposing children to particular kinds of events or experiences.      

Massachusetts’ interest in weighing creativity has not gone unnoticed.  Last month, the California Senate approved a bill that calls for the establishment of a “Creative and Innovative Education Index.”  The language of the California bill is almost identical to that of the Massachusetts legislation, except that California’s measure points out that the state’s index is to be voluntary.  

Then there’s Oklahoma, whose governor announced in November her plan to partner with the private sector in order to create an “innovation index.”  Like those proposed in Massachusetts and California, Oklahoma’s index would operate by assessing the number of creativity-fostering programs available to the state’s public school students.  Again, the focus is on inputs, not outputs.

By the look of it, state-level efforts to develop indices of creativity have only just begun to get off the ground.  But it isn’t too early to begin asking whether and under what conditions such efforts can be expected to produce meaningful benefits.  At any rate, even at this initial stage, at least two potential problems present themselves.

First, insofar as human creativity is a sui generis phenomenon, one not amenable to replication, there may be something more than a little ironic about relying on systematic, scalable programs to develop creativity in young people.  If creative thinking is the sort that seeks alternatives to existing or well-defined modes of reasoning, it seems that, by definition, the programmatic is the enemy of the creative.  Why not also invest in efforts to identify and train teachers who seem most likely to be able to generate creative thought patterns in the children they teach?

Second, it’s worth noting that there’s a kind of tautology in the indices being mulled by Massachusetts, California, and Oklahoma: the states define creativity as the thing that results when students are given access to “creative opportunities.”  Perhaps the way to move forward would be by attempting to establish a clear definition of what kinds of mental capacities are supposed to constitute imagination.

In this inaugural episode, Senior Online Editor Noah Kaplan talks with Executive Online Editor Matt Giffin about the recent Supreme Court decision about GPS tracking units, United States v. Jones, and about the response to the proposed copyright protection legislation SOPA and PIPA.  Future episodes will feature similar discussion, in addition to guest experts.  If there is a topic you would like hear to on the show, feel free to let us know.  Thanks for downloading, and enjoy the show!

Episode 0 – CR-CL Podcast – Jones and Sopa

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Google has responded with a defense of its new policies as simplifying the user experience by consolidating the policies of its many products and by using the accumulated data to provide more relevant advertising and search results to its users. It also suggests some basic workarounds for users concerned about their privacy.

There are clear tradeoffs involved in the new privacy policy, but what does it suggest for the growing problem of data privacy more generally? Despite the seeming novelty of privacy problems in the age of the Internet, we can learn a few lessons by turning to privacy problems at the beginning of the information age. In 1964 the Bureau of the Budget and the National Archives jointly took over the creation of the proposed National Data Center, which would centralize the storage and processing of information across government agencies. Yet the inefficiencies in data processing that motivated this project also provided basic privacy protections for individuals. If the premise behind centralizing data was that it would reduce redundancies in data collection and provide a wider range of information to agencies, the premise behind the opposition was that information should only be available on an as-needed basis. Congressional opposition to the National Data Center was led by Rep. Cornelius Gallagher of New Jersey. By the end of 1967 the civil libertarians had killed off the data center. This victory created immediate problems for the privacy movement: instead of having one body in charge of creating standards for handling information, there were now many such standards. The protection that came from decentralization could not necessarily match the protections that could be created through good policy. (For more on the National Data Center, see Arthur R. Miller, The Assault on Privacy (Ann Arbor: University of Michigan Press, 1971).)

Google, of course, is not the state. The power to target advertisements is not the state’s police power, and those of us interested in privacy in the digital age do ourselves no favors by failing to acknowledge this. At the same time, the reassurances from Google that multiple accounts are sufficient to compartmentalize the presentation of our digital selves do not ring true. Our lives are not so easily compartmentalized, and for better or worse, the internet has become an integral part of contemporary life. In thinking about where privacy policies should be, we should hold as our ideal a notion of privacy that accords with our actual practices, not merely with the convenience of internet companies.

We are not wrong to demand greater control over the use of information gathered in bulk as we wander the web. Without denying the importance of Google as a platform for advertising (and I certainly don’t begrudge them their need to bring in revenue), or their interest in tailoring search results to be useful to us, these uses do not come close to fully describing the ways in which we have incorporated this technology into our lives. In much the same way, the hopelessly limited description of identity invoked by Mark Zuckerberg (on which, see Zadie Smith’s probing essay) points to a fundamental tension between Facebook’s mission as a company and its uses by an endlessly diverse population of users. Control of user data is not only about data owned by one tech company or another, but about the definition of the self on the internet. These websites are partly products within a marketplace, but their significance to their users extends much farther than that definition suggests. The legal regime for data protection should be designed accordingly.

The new Google privacy policy therefore creates the possibility of establishing greater public control over the use of user data on the internet, as well as the possibility of losing even more ground on privacy matters. Centralization raises the stakes of the debate. These days it does not seem promising to turn to the state to protect civil liberties. But if the problem is that data privacy policies have been left to the companies that use the data, we may have few alternatives. Unfortunately, Congress has given us little reason to hope that it will craft wise legislation to protect privacy. Until then, we can look forward to continuing the cycle of outrage over relaxed privacy policies, followed by assurances of good intentions on the part of internet companies, followed by our acceptance of the status quo.

HarvardCRCL.org is proud to announce the imminent launch of the Harvard Civil Rights-Civil Liberties Podcast.  The podcast will allow us to increase the quantity of issues covered on the site, improve the diversity of content offered to our readers, and provide a forum for a broader range of voices in the progressive, legal community.  We hope to bring together students, professors, legal practitioners, and anyone else with insight into important legal developments.  Though the podcast will, at first, be a work in progress, we know that the best way to find out what our audience is interested in hearing is to start developing the content and receiving your feedback.

The CR-CL Podcast will launch in early February 2012.  You will be able to subscribe to the podcast in your favorite podcatcher app or via iTunes.  We welcome questions, comments, or suggestions on the podcast at CRCLonline@gmail.com.

In 1992, the North American Schmiedeleut Hutterian Church, a religion endorsing an agrarian, communal life based on the Bible’s New Testament, split into two competing factions. Out of 173 Hutterian colonies located mostly in the United States, 95 colonies disclaimed the leadership of their once-reining Senior Elder, Reverend Kleinsasser, because of allegations that Kleinsasser misused church funds. See Here. As a replacement, disgruntled colonies endorsed a new candidate, Reverend Wipf, as the new Senior Elder of the Hutterian Church.

Although the leadership transition went smoothly in the preponderance of Hutterian colonies throughout the United States, in some colonies, to say the least, it did not. The Hutterville Colony of South Dakota, for example, continues to fight over its corporate governance structure ever since the initial schism in 1992. While some members refuse to repudiate Kleinsasser’s leadership, others believe Wipf is now entitled to the leadership chair in the Hutterville Colony, which is organized as a non-profit corporation under South Dakota law. Because building consensus within the colony after so many years proved futile, however, litigation seemed like the only recourse and ensued in 2010. If the community couldn’t resolve the leadership dilemma, the contending factions at least hoped the secular judiciary would do it for them, once and for all.

Before Hosanna-Tabor had any say, a South Dakota Circuit Court did just that. Instead of asserting that the First Amendment precluded the court from scrutinizing such ecclesiastical matters for fear of entangling itself in religious doctrine and belief, Judge Wold held the only solution was for the Hutterville Colony to dissolve so that its assets could be distributed equally to all the members of the community.

Upon review, however, the South Dakota Supreme Court in Wipf v. Hutterville Hutterian Bretheren, Inc took a step back from Judge Wold’s decision in light Hosanna-Tabor‘s recent teaching: certain ecclesiastical matters such internal leadership decisions should not be adjudicated by secular courts. Because the Hutterville Colony’s corporate governance structure made following the Hutteritan religion a prerequisite of corporate membership and incorporated sectarian doctrine throughout much of its corporate documents, the South Dakota Supreme Court aptly recognized it had no place in adjudicating this religious controversy. In order to resolve the dispute it would not only have to analyze the Hutterian religious doctrine, a totally foreign subject matter, but it would also have to render a legal judgment based on these sectarian teachings. Consequently, the South Dakota Supreme Court held it lacked jurisdiction to order the dissolution of the colony, placing the controversy back in the hands of the Hutterville Colony to determine whether Kleinsasser or Wipf rightly assumed the rod of power.

In one of the first cases to cite Hosanna-Tabor, Wipf vindicates the limited role of secular courts in resolving matters of ecclesiastical import. Therefore, while Hosanna-Tabor surprisingly failed to define who qualifies as a minister for purposes of the ministerial exception, the decision’s clear declaration of the limited role of courts in resolving internal religious controversies will likely make serious waves in state and federal courts alike in the years to come. Contrary to its hopes, then, the Hutterville Colony found no secular enlightenment in the South Dakota Supreme Court in the wake of Hosanna-Tabor. Instead, the religious community must rely on its own internal dispute resolution mechanisms to resolve its decade-long controversy as to who shall reign supreme at Hutterville.

A similar debate is brewing in North Carolina, which instituted forced sterilization programs from the 1930s to the 1970s as part of a eugenics program aimed to reduce poverty and shrink government welfare programs.  Over thirty states had forced sterilization programs, driven by a belief that they would “improve the gene pool.”  Those who were sterilized often did not know the purpose of the surgeries until after the fact. Victims were chosen using IQ tests and social worker recommendations based on factors such as “promiscuity” and “feeble-mindedness,” and reports on mental and physical health.   The state’s Eugenics Board made the final decision on the operation.  Families were often threatened with losing their government benefits if they did not sign the sterilization consent forms.  The program disproportionately affected poor black families – 40% of those sterilized were non-white minorities, and 85% were women and young girls.

Last Friday, the NC Justice for Sterilization Victims Foundation, an organization that North Carolina Governor Bev Purdue created in 2010, issued its Final Report to the governor.  It included a recommendation to provide outreach to victims, mental health support, public education, and $50,000 in compensation to the 1,500 living victims of forced sterilization.  To many, this figure is humiliating and inadequately considers the value of the victim’s life, the loss of potential children, lifelong humiliation and regret, and the cost of medical care as a result of the procedures.  But the report states: “compensation is not meant to value life loss or the choices taken away from nearly 7,600 men and women but to serve as a strong and collective acknowledgement of an abusive government program that should never be duplicated by this state or any other government ever again.”

The Supreme Court upheld the legality of forced sterilization in the famous case of Buck v. Bell, 274 U.S. 200 (1927).  The Supreme Court held that a Virginia sterilization statute did not violate the Fourteenth Amendment and did not deny Buck (who had her fallopian tubes removed) due process and equal protection.  Justice Oliver Wendell Holmes wrote: “Carrie Buck is a feeble-minded white woman … [and] if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc.”  Due process had not been violated because the Eugenics Board provided sufficient procedures in making its decision by offering a hearing, proper notice of the hearing, and the evaluation of appropriate evidence to make a final sterilization recommendation.  Regarding the attack on the substantive law, Justice Holmes wrote that the Court could not say that there were no grounds to justify this law:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes …. Three generations of imbeciles are enough.

In 1942, the Supreme Court’s ruling in Skinner v. Oklahoma, 316 U.S. 535 held that an Oklahoma sterilization statute violated the equal protection clause of the Fourteenth Amendment, but on grounds that still left open the possible legality of other sterilization statutes.  Oklahoma’s statute ordered sterilizations for “habitual criminals” convicted of “felonies involving moral turpitude.”  However, since larceny counted as a felony of “moral turpitude” while embezzlement did not, the Court held that “when the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”   The line between larceny and embezzlement resulted in different sterilization consequences, and the Court found this line to be arbitrary.

North Carolina is in a unique position as the first state to offer compensation to victims of sterilization programs.  Professor Lombardo, a law professor at Georgia State University, argues that states should pay for these wrongs even when they were legally inflicted, likening these payments to ones paid to prisoners exonerated by DNA evidence.  North Carolina’s legislators should act with urgency to pass a resolution agreeing on financial compensation to victims.  Professor Waterstone, a law professor at Loyola (Los Angeles) notes three reasons why the state’s actions are critical: 1) the state has a moral obligation to recognize its history of wrongdoing, make amends, and create public awareness; 2) North Carolina can bring to light the modern-day ramifications of genetic discrimination, as this is especially pertinent in the healthcare industry today (such as denying insurance coverage to those with predispositions to certain diseases); and 3) Buck v. Bell has been narrowed but not explicitly overturned, and North Carolina’s actions should lead to a re-evaluation of the law.  Courts still uphold classifications based on disability using rational basis review, concluding that these laws are “rationally related” to a “legitimate government interest.”  Very recently, a Massachusetts court suggested that a pregnant woman known as Mary Moe, who suffers from schizophrenia and bipolar disorder, should be sterilized.  (The Massachusetts appellate court did reverse the lower court’s holding.)

Additionally, forced sterilization laws are not exclusive to the United States – transgendered people in Sweden who wish to legally change their gender on official papers must first get divorced and sterilized, as required by a 1972 law.  Sweden’s history of forced sterilization mirrors North Carolina’s – over 60,000 people classified as “mixed race individuals,’ single mothers with many children, deviants, Gypsies, and other vagabonds” were forcibly sterilized between the 1930s and 1970s.  Perhaps North Carolina’s actions can serve as a wake-up call to our courts and the international community that these incongruities still exist today.  The issue the state deals with today is not just about correcting a historical wrong, but equally about confronting modern-day legal challenges.

A few days ago, a student-plaintiff represented by the American Civil Liberties Union, Jessica Ahlquist, experienced such local backlash after prevailing on her successful Establishment Clause challenge. This time, however, community backlash took a new spin. Instead of the standard hate-letter or losing a friend or two, local florists got in the mix in order to express their disdain over Ahlquist’s recent success in court.

On January 11, 2012 the Rhode Island District Court in Ahlquist v. City of Cranston announced that a prayer mural hanging in Ahlquist’s public high school auditorium violated the Establishment Clause. The mural includes the text of a school prayer that was routinely recited by students before the practice was invalidated by the U.S. Supreme Court’s hallmark school prayer decision in Engle v. Vitale (1962). It begins with sectarian phrases such as “Our Heavenly Father” and ends with the hallmark endorsement “Amen.” City officials, however, disclaim and sectarian religious affiliation by noting the mural is a historical artifact from the school’s early days and therefore serves no religious purpose. After all, it was merely a gift from the Class of 1963, graduating coincidentally one year after the Warren Court rang the death-knell for school prayer in Engle.

In finding the mural to violate the Establishment Clause, the court declared per Judge Ronald Lagueux that: “The purposes of the Prayer when drafted, and the Prayer Mural, when installed, were clearly religious in nature…. No amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that.” The court accordingly granted a permanent injunction requiring the school to immediately remove the mural from the auditorium. Notably, Judge Lagueux also exclaimed the brave and courageous stand taken by Ahlquist against the Prayer Mural given the hostile response she faced and will likely continue to experience from the community.

As a token for her courageous action, the Freedom from Religion Foundation, an advocacy for the separation of church and state based in Madison, WI, attempted to send her a bouquet of flowers. Three florists located in Cranston—the city where Ahlquist lives, and one in a neighboring town, however, saw otherwise. Instead of fulfilling their historical role as bearers of good news, each florist rendered a new form of community backlash against Establishment Clause challenges by refusing to deliver thanks to Ahlquist.

According to a press release by the Freedom from Religion Foundation, all four florists refused to send Ahlquist flowers because of her recent success in the Prayer Mural case. See Here. The first shop, Floral Express, deceptively stated it was not available for business even though it answered the phone call. The owner of Floral Express then mentioned: “I am not able to fill this [order].” The second shop took it one step further: “I will not deliver to this person.” The third shop followed suit by unequivocally refusing to deliver only after hearing the flowers were intended for Ahlquist. And, the fourth shop, located outside Cranston, put the proverbial “cherry-on-the-top” by initially agreeing to take the order, but eventually refusing after patrons voraciously threatened to boycott the business if it delivered the flowers. As a result, the FFRF was forced to contact a far-distant shop in Putnam, Connecticut called Glimpse of Gaia, who not only agreed to deliver the bouquet to Ahlquist, but also threw in a second token bouquet with its own message: “Glimpse of Gaia fully supports our First Amendment and will not be bullied by those who do not. Here’s to you, Jessica Ahlquist.”

Many of the florists who denied delivery have ostensibly justified their actions upon non-discriminatory grounds. Local newspapers report that Raymond Santill, the owner of Flowers by Santil, one of the companies the FRFF attempted to order from, rejected the delivery because the person delivering the flowers would need police protection and identification to enter the home. Santil further averred that as the owner of the store he has the right to deliver or not to deliver to whomever he pleases. See Here. Similarly, the owner of Twin Florists, Marina Plowman, echoes Santil in stating: “I just chose not to do it. Nothing personal, it was a choice that I made. It was my right, so I did that. I’m an independent owner and I can choose whoever I want, whenever I want.” Id.

The Freedom from Religion Foundation, however, believes otherwise. And, they may be rights according to Rhode Island law, which offers heightened protection for religious liberties. Stemming back to Rhode Island’s religiously tolerant roots, Rhode Island General Law 11-24-2 makes it unlawful for a place of public accommodation to discriminatorily deny services on account of religion. According to the Freedom from Religion Foundation, then, the florists clearly violated this state law by refusing to deliver to Ahlquist because of atheist beliefs. The Commission for Human Rights in Rhode Island is currently investigating the matter in light of these allegations.

While it remains unclear whether additional litigation will ensue as a result of the florists’ discrimination against Ahlquist, one thing remains certain: student-plaintiffs often face backlash from a myriad of sources within their local communities in response to their Establishment Clause challenges. Thankfully, though, students such as Jessica Ahlquist are courageous enough to stand up for their First Amendment rights in the face of such community hostility. Kudos to you, Jessica Ahlquist.

Chief Justice Roberts, writing for the court, recognized and applied a “ministerial exception” (embraced by many lower courts, but not formally recognized by the Supreme Court until this case): if a church employee is a minister, he or she cannot pursue an employment discrimination claim in court, because such a claim would result in a judge or jury infringing on that religious group’s right under the Free Exercise Clause of the First Amendment to decide which ministers should and should not be retained.  The opinion then addressed the question of what (legally) constitutes a “minister.” On this issue, Roberts greatly limited the judiciary’s role in determining whether or not a church employee is a “minister.”  As Harvard CR-CL Law Review described back in October, the plaintiff in this case had received the formal title of “Minister of Religion, Commissioned” after completing the requirements that entitled her to receive the parochial school’s equivalent of tenure.  The requirements included eight classes of theological study.  Perich then taught predominantly secular subjects, but did also teach one daily religion class and led students in prayer.  The Sixth Circuit applied a primary duties test—a test used by several federal circuits—to conclude that her “primary duties” were secular.  As a result, the Sixth Circuit held that Perich could pursue her employment discrimination claim, because she was not a minister for the purpose of invoking the ministerial exception, under the parameters provided by the primary duties test.

Chief Justice Roberts rejected the “primary duties” test and instead supported a broader exception.  Roberts first stated the conclusion, holding that “it was sufficient to conclude” that the exception covered Perich.  Importantly, the court would not “adopt a rigid formula for deciding when an employee qualifies as a minister.”  Instead, Roberts pointed to several factors that persuaded the court to accept the church’s claim that Perich was a minister: the formal title given to Perich by the church, the religion-based efforts involved in receiving that title (her classwork), Perich’s own use of the title (she had claimed tax breaks given only to ministers), and the important religious functions she performed for the church (teaching its tenets).  Furthermore, the opinion refused to consider whether or not there was merit to Perich’s claim that the church’s religious reason for firing her was pretextual: “that suggestion misses the point of the claim.  The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason.”  Instead, any employment discrimination lawsuit must be dismissed when the church involved successfully demonstrates that the claim against it was brought by or on behalf of a minister of that church.

Arguably, the court has set forth a strong precedent.  This decision unambiguously rejects the “primary duties” test used by several circuits, and appears to close the door on all employment discrimination claims, when the plaintiff is a “minister.”  Still, two concurring opinions in Hosanna-Tabor pointed out that certain elements of the court’s role in determining whether a ministerial exception applies are still up for debate.  Justice Clarence Thomas wrote that the Chief Justice’s opinion did not provide enough deference to religious organizations, stating that “judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the ‘mainstream’ or unpalatable to some.”  Justice Samuel Alito, joined by Justice Elena Kagan, wrote separately to clarify his understanding of the term “minister.”  Justice Alito pointed out that some religions do not even have a structure where any members of the faith perform functions similar to those performed by a “minister.”  Thus, Alito argued “it would be a mistake if the term ‘minister’ or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one.  Instead, courts should focus on the function performed by persons who work for religious bodies.”  Alito’s resulting interpretation of this case: the ministerial exception applied to Perich because she engaged in “important religious functions” for the church.

Attempting to fully delineate the circumstances in which a court could overrule a church’s claim that an employee is a “minister,” in a fashion consistent with the strong First Amendment protection that Chief Justice Roberts articulated in this case, could have resulted in a controversial and messy standard.  The opinion avoids the problems associated with applying the exception as broadly as Thomas argues for, or as specifically as Alito argues for.  Instead, lower courts can continue to carve out areas in which exceptional circumstances may compel the conclusion that the ministerial exception need not apply, although Roberts did his best to limit the scope of such exceptions.  But by refusing to precisely define “ministerial exception,” the Supreme Court will have the benefit of future case law to help it flesh out the ramifications of Wednesday’s holding, if the court decides to revisit the issue in the future.  Thus, Roberts made an effective decision in concluding, “[T]here will be time enough to address the applicability of the [ministerial] exception to other circumstances if and when they arise.”

That being said, this opinion dramatically changes the scope of protection that was provided to religious employees under the “primary duties” test.  It allows churches to discriminate against a considerably larger subset of church employees in their hiring and firing decisions. Religious groups will shoulder a correspondingly greater burden of setting and applying internal policies that are capable of preventing such discrimination, because “ministers” now receive no protection under civil rights or other discrimination statutes.  Justice Sotomayor asked a difficult question at oral arguments: whether a church could be protected against a lawsuit by invoking the ministerial exception, when an employee claims that the church was discriminating by retaliating against that employee for reporting sexual abuse.  Through the holding in Hosanna-Tabor, it appears the court decided that even under the situation described by Justice Sotomayor, when a fired employee is subject to the ministerial exception, First Amendment considerations outweigh the countervailing public policy concerns involved in dealing with the potential unfairness.  The 9-0 holding suggests that the court will not anytime soon be changing its decision to give substantial discretion to religious groups in determining who is subject to the ministerial exception.

The Oklahoma controversy arises out of the “Save our State” referendum (State Question 755), which conservative activists placed on the state’s ballots in the 2010 elections after approval by the legislature. The measure would have amended the Oklahoma Constitution’s provisions on choice of law to prohibit any reference to Islamic law:

“The courts…shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution…and if necessary the laws of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law.”

The amendment passed by an overwhelming margin in November 2010, gaining more than 70% of the vote. Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, immediately filed suit in federal court seeking an injunction barring the amendment from taking legal effect. The district court of Oklahoma, finding that Awad had standing to challenge the law and that he had demonstrated the likelihood of success in his challenge to the law on the merits, granted the injunction.

The 10th Circuit’s emphatically-worded decision this week is heartening, and not only because it highlights the manifest unconstitutionality of the “Save Our State” amendment. Like the district court’s order before it, it also signaled—albeit in cautious judicial language—the sheer emptiness of the “Sharia threat” spawning the nationwide political movement of which the Oklahoma law is only a leading exemplar.

As detailed in a report by the Center for American Progress, primary responsibility for creating the notion that Sharia law presents an imminent threat to Amerian life rests with a small network of conservative “intellectuals” and financial backers. Funded from traditional right-wing sources like the Richard Mellon Scaife Foundation and the Eagle Forum, a small number of Islamophobic think-tanks have had astonishing success in bringing the Islamic law threat to mainstream attention. A few members of Congress, particularly Allen West of Florida and Peter King of New York, have provided a convenient megaphone for the message, and the movement has to date borne fruit in a number of state legislatures around the country. Perhaps the most effective agitator has been David Yerushalmi, founder of the Society of Americans for National Existence (also, not coincidentally, founder of the “Stop Islamization of America” organization, which the Anti-Defamation League has labeled a hate group). Driven by an apocalyptic notion of worldwide religious struggle, Yerushalmi has declared that “Muslim civilization is at war with Judeo-Christian civilization… the Muslim peoples, those committed to Islam as we know it today, are our enemies.” Yerushalmi produced a model anti-Sharia bill for use in state legislatures; astonishingly, legislatures in more than 10 states have introduced legislation substantially based on his template. To date, Arizona, Oklahoma, Louisiana, and Tennessee have successfully passed anti-Sharia legislation, and nearly half the states have at least introduced similar legislation. (See CAP, Ch. 2, p. 38).

Given that irrational fear and distrust of Islam remains a shameful blind spot for a nation that prides itself on religious pluralism, such a smear campaign is especially dangerous. It has also metastasized in recent months into a potential “issue” in the 2012 elections. Some conservative pundits have long sought to equate the Obama Administration’s supposedly conciliatory stance towards Muslim countries with the threat of surrender to Islamic law at home. Frank Gaffney of the “Center for Security Policy” analyzed the administration’s missile reduction agreements, of all things, as “an increasingly obvious and worrying pattern of official US submission to Islam and …Sharia.” Since last fall, presidential candidates Herman Cain, Michele Bachmann, and Newt Gingrich have sought political advantage through explicitly conflating two long-standing right-wing fears: radical Islam and the federal judiciary. Bachmann has repeatedly called for vigilance against the Sharia threat in US courts, and Gingrich declared in a speech last year that “Sharia is a mortal threat to the survival of freedom in the United States and in the world as we know it.”

Of course, no threat exists. There can be no doubt that, as a religious guide to personal behavior, family relations, and even contract principles, Sharia contains precepts which may clash with American law. However, no American court has ever subordinated its secular authority to Sharia; the notion that state constitutions need protection from encroaching theocracy is an outright, cynical fabrication. In a succinct report called “Nothing to Fear,” the ACLU helps debunk such claims. Of course, Muslim citizens have pointed to Sharia as evidence of the requirements of their faith—for instance, in a prisoner’s suit against a prison for failing to fulfill its constitutional duty to allow him to exercise his religious beliefs (Shaheed Allah v. Adella Jordan-Luster). On other occasions, courts have upheld the results of out-of-court arbitrations conducted in accordance with Islamic law—but have done so by subjecting the results to the same analysis as any other arbitration agreements (Abd Alla v. Mourssi). As the ACLU points out, courts have uniformly rejected defenses to civil or criminal liability based on religious law — as in People v. Benu when a court found a father guilty of child endangerment for facilitating his daughter’s underage marriage despite his invocation of Islamic law as a defense. Merely recognizing that Sharia exists—and that Muslims may rely on it to order their private affairs—is nothing like a surrender to Islam; it is the same routine accommodation of religious beliefs so loudly demanded by conservative groups when the religion in question is not Islam.

Within the context of its Establishment Clause analysis, the 10^th Circuit reached the same conclusion: the threat against which the Oklahoma legislation is directed is a baseless one. First, it affirmed that the plaintiff had standing to challenge the legislation—and in doing so, acknowledged just how damaging the “Save Our State” amendment could be for Muslim Oklahomans. The court agreed with Awad’s claims about its possible effects: “stigmatizing him and others who practice the Muslim faith, inhibiting the practice of Islam, disabling a court from probating his last will and testament (which contains references to Sharia law), limiting the relief Muslims can obtain from Oklahoma state courts, and fostering excessive entanglement between the government and his religion.” Relying on 10^th Circuit precedent like American Atheists v. Davenport holding that the “actual injury” required for standing can be fulfilled by unwelcome contact with government interferences in religious issues, the court found that “As a Muslim and citizen of Oklahoma, Mr. Awad is directly affected by the law…against which [his] complaints are directed.”

Judge Matheson then turned to the crucial question: which Establishment Clause standard provides the appropriate test for evaluating the constitutionality of the “Save Our State” amendment. The older test, which has been repeatedly criticized by members of the Court but still remains the default , is the “Lemon Test” derived from Lemon v. Kurtzman (1971). The court, however, affirmed the district court’s application of the stricter, less-used test derived from Larson v. Valente (1982). The Larson test applies the equivalent of strict scrutiny to laws which directly discriminate against certain religions, whereas the Lemon accords slightly more deferential review to laws which are not clearly discriminatory in intent. In the court’s words, “The Larson test provides that if a law discriminates among religions, it can survive only if it is ‘closely fitted to the furtherance of any compelling interest asserted.’”

The court found that, even on its face, the amendment betrayed a discriminatory intent towards Islam. Although its defenders insisted that it referred to Sharia only as an example of an impermissible “foreign” law, the court found otherwise; Judge Matheson found especially damning the passage which allowed reliance on other states’ law “provided the law of the other state does not include Sharia law.” Though as a practical matter the provision means nothing—no American state includes Sharia as part of its legal code—the discriminatory intent is difficult to hide.

Having determined that the Larson standard applied, the 10^th Circuit went on to test whether the “Save Our State” amendment fulfilled its requirements: whether it was “closely fitted” to a “compelling government interest.” Noting that mere “speculation” or “statements of abstract principles” do not satisfy the government’s burden of showing a compelling interest, the court found the law’s justification in any kind of real threat to be lacking:

“Appellants do not identify any actual problem the challenged amendment seeks to solve.  Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.”

Finding that interests as weighty as those protected by the First Amendment could not possibly be subordinated to such exploitative shadowboxing, the court ruled that the law’s challenger had demonstrated his likelihood of success on the merits and thus upheld the district court’s preliminary injunction .

This ruling does not, of course, put the matter to rest, even with respect to Oklahoma. The Republican state senator who sponsored the amendment pilloried the 10^th Circuit’s decision as an attempt to “silence the voice of 70 percent of Oklahoma voters” on par with other supposed judicial outrages such as “legalized abortion and forced busing of school children.” Appeal will surely follow, and the response of other courts to similar state laws is still unclear. First Amendment challenges, at least on the Larson standard, might be more difficult against laws whose language does not explicitly single out Islam. A law under consideration in Pennsylvania, for instance, bans only reliance on “foreign” laws in more general terms; resolution of such a question may well depend on the willingness of courts to dig into legislative history to discern intent.

At the very least, Judge Matheson’s ruling is a strong statement of the constitutional case against such legislation as the Oklahoma amendment. Couched in the language of Establishment Clause jurisprudence as it is, it makes clear not only that the grounds for the legislation are nonexistent, but also that its effect amounts to unconstitutional discrimination.

In July 2010, Jennifer Keeton, a former ASU student pursuing a masters degree in school counseling, sued the public university on First Amendment free speech and free exercise grounds, after it threatened to expel her unless she agreed to participate in a remediation plan designed to improve her ability to counsel members of the GLBTQ community.  Along with her complaint, she sought a preliminary injunction barring ASU officials from dismissing her from the program.  In August, the federal district court denied her motion for a preliminary injunction in Keeton v. Anderson-Wiley, a decision that was upheld by the Eleventh Circuit Court of Appeals last month.

On a number of occasions during her first year in the Counselor Education Program, Keeton, a self-described devout Christian, expressed her belief that homosexuality is immoral.  She also told classmates and professors that she would have difficulty working with GLBTQ clients, that she would tell GLBTQ clients that “it’s not okay to be gay,” and that if she were unable to change their sexual behavior herself, she would refer them to someone who practiced conversion therapy.  Before Keeton’s second year was set to begin, in which she was scheduled to engage in one-on-one counseling with middle and high school students, ASU officials determined that her comments indicated an intent to violate four separate provisions of the American Counseling Association’s Code of Ethics, which counseling education programs are required to teach in order to maintain their accreditation.  ASU gave her a choice: participate in a remediation plan, or be dismissed from the program.

Keeton’s remediation plan would have required her to, among other things, attend three diversity training sessions focused toward working with GLBTQ clients, read ten peer-reviewed articles pertaining to effective counseling of GLBTQ clients, increase her interaction with the GLBTQ population by, for example, attending Augusta’s Gay Pride Parade, and write monthly reflection papers summarizing what she had learned.  An addendum to the remediation plan emphasized that Keeton was not being asked to change her beliefs, but rather to separate her beliefs from her counseling.  Keeton refused to participate in the remediation plan, opting instead to file a lawsuit against the university in the U.S. District Court for the Southern District of Georgia.  After the district court denied her motion for a preliminary injunction, she was expelled from ASU.

On appeal to the Eleventh Circuit, Keaton’s lawyers predominantly raised two arguments for why her expulsion was unconstitutional, both unsuccessfully.  First, Keeton claimed that the requirement that she participate in a remediation plan violated her right to free exercise of religion.  In Cantwell v. Connecticut, the court divided the free exercise clause into the freedom to believe and the freedom to act, and held that “the first is absolute but, in the nature of things, the second cannot be.”  The court established the current test for determining whether restrictions on actions violate the Free Exercise Clause in Employment Division v. Smith.  So long as the law that creates the interference has a religiously-neutral intent and is generally applicable, it need only be rationally related to a legitimate government interest to be upheld.  In Keeton, the appellate court determined that ASU had a neutral and general practice of crafting remediation plans when students failed to comply with the Code of Ethics.  Since ASU’s policy was rationally related to its interest in maintaining its accreditation—a requirement of ASU’s accreditation is that it “address the inability of some students to achieve counseling competencies that might impede performance”—the court rejected Keeton’s Free Exercise claim.

Second, Keeton argued that the remediation plan placed unconstitutional restrictions on her freedom of speech.  While Keeton’s statements are offensive to many, myself included, they are nevertheless legally protected.  In R.A.V. v. City of St. Paul, in which the Supreme Court declared unconstitutional a law that made it illegal to burn a cross, the Court stated that “the First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed.”  Unless the speech contains obscenities, defamatory statements, or “fighting words,” it is generally protected.  Though Keeton’s speech is legally protected, her right to speak is not absolute.  Because school classrooms constitute nonpublic forums, program officials may impose restrictions on speech, so long as they are viewpoint neutral and reasonable.  I believe that the Eleventh Circuit erred in determining that both criteria had been met.

The Eleventh Circuit determined that ASU’s decision to impose a remediation plan was viewpoint neutral, because it stemmed from Keeton’s expressed intent to violate the Code of Ethics, not from her religiously-based views on homosexuality.  I am unable to see how this makes ASU’s decision more neutral with respect to the views expressed in the speech.  Under ASU’s policy, students who express viewpoints inconsistent with the Code of Ethics will be made to undergo remediation, while students whose views are consistent with the Code of Ethics will not.

The Eleventh Circuit also found ASU’s policy to be reasonable, using the framework established in Hazelwood School District v. Kuhlmeier.  In Hazelwood, the court held that schools could regulate the content of students’ speech in “school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”  Applying this test to Keeton, the appellate court found that ASU had a legitimate pedagogical concern in teaching its students to comply with the Code of Ethics.  What troubles me about this is not the outcome the court reached, but the omission of a crucial step.  The court determined that it was reasonable for schools to teach students to comply with the Code of Ethics, but it never asked whether the content contained within the Code of Ethics was reasonable.  Suppose that in the 19^th Century the Code of Ethics declared that women were psychologically inferior to men, or that in the 1950s it stated that African Americans were inferior to their Caucasian counterparts.  Would it still be reasonable for schools to teach compliance with the Code of Ethics?  As Judge Pryor noted in his concurring opinion, it was not long ago that the American Psychiatric Association maintained that homosexuality was a treatable mental disorder.  Would the court have come out the same way if Keeton had been forced to undergo remediation for clamoring that the then prevailing view was wrong?  Though a quick review of the modern day Code of Ethics reveals nothing unreasonable, this step is a crucial one, and one that the court failed to take.

Few can fault the judges in this case from wanting to protect school children from being indoctrinated by Keeton’s beliefs.  But as is often said, hard cases make bad law.  My argument is not that Keeton should be allowed to instill her beliefs in school children.  It is merely that forcing Keeton to choose between undergoing remediation and facing expulsion is not a legally permissible solution to the very real problem that ASU faced.  Instead, ASU might have been within its right to postpone Keeton’s scheduled counseling until further notice.  And if Keeton proved unable or unwilling to abide by the Code of Ethics, the American Counseling Association could have refused to certify her as a counselor.

Importantly, while the Eleventh Circuit rejected each of Keeton’s arguments, the decision was not a rejection of the merits of the claims themselves.  A court may only grant a preliminary injunction if the plaintiff demonstrates that she is substantially likely to win her case.  The district court and the appellate court decisions, which were rulings on Keeton’s request for a preliminary injunction, held that Keeton failed to meet this high burden.  While the opinions cast doubt on Keeton’s chances of winning her underlying suit, in the words of Yankee legend Yogi Berra, “it ain’t over till it’s over.”  When the case concludes, it will serve as an important precedent for the many professional associations that promulgate ethical codes.

Background

§5 establishes that some states and localities must submit any proposed change in election practices or procedures for federal approval. That approval can be sought from the D.C. District Court, or from the Department of Justice.  §5 applies to every jurisdiction within each of nine states, and to some jurisdictions within seven additional states. Jurisdictions were initially chosen based on a formula—enacted in §4—that was calibrated to identify areas where discrimination burdened the voting rights of minorities. In 1982 Congress recognized that a successful Voting Rights Act would diminish or dissolve that burden; To account for the act’s potential success, Congress crafted a provision allowing jurisdictions to “bail out” of coverage after satisfying six criteria enumerated in §4(a). The criteria include basic proxies for discrimination; for example, a jurisdiction may not bailout if a US court has “determined that denials or abridgments of the right to vote on account of race or color have occurred anywhere in the territory” within the previous ten years.

Though the bailout provision can prevent §5 from unduly burdening jurisdictions that have addressed prejudice, litigants have continually subjected the provision to legal attack.  Recently, the Court has appeared more willing to entertain such challenges. Dissenting in Namudno, Justice Thomas asserted that “the lack of current evidence of discrimination with respect to voting renders §5 unconstitutional.” Other Justices may have joined him, but for the availability of a convoluted constitutional avoidance rationale.

The Texas Redistricting Litigation

No facial challenge to §5 was brought in the Texas Redistricting cases. Those cases are predicated on claims that the Texas legislature violated the 14^th Amendment and §2 of the Voting Rights Act when it enacted new maps for: 1) its State House; 2) its State Senate; and 2) the US House of Representatives. 14^th Amendment and §2 claims, which needn’t be brought to D.C. or to DOJ, are distinct from §5 claims. A clear and thorough account of the similarities and differences is available here. Though the substance of the plaintiffs claims are interesting, the procedural history of the claims generated the controversy before the Court on Monday.

After a number of parties challenged the Texas State Legislature’s maps, claims were consolidated before a three-judge panel in the Western District of Texas. Relying on the Supreme Court’s decision in Conner v. Waller, a majority of that panel forestalled argument on the 14^th Amendment and §2 claims until preclearance is resolved. Texas elected to file for preclearance in D.C. District Court, rather than pursuing the DOJ’s expedited administrative approach. That litigation is ongoing, with argument to begin January 16^th.

Ordinarily, these circumstances would not prove problematic. Texas, however, had primaries scheduled for March 6^th. Those primaries have since been moved to April 3^rd but to no effect: the three-judge panel, with Judge Smith dissenting, adopted interim maps. In a supplemental opinion, the court reasoned that that no map could be implemented before preclearance, and that preexisting maps were inadequate because Texas had added population and so been apportioned additional congressional seats.

Texas has appealed use of the interim maps. In doing so, it has injected §5 into the litigation. Responding to the plaintiff’s claim that no map can be implemented before preclearance, the state’s reply brief asserts that is has never argued to the contrary. The state continues, maintaining that its contention is a narrow one: that the interim maps are deficient. Reasoning further, the state contends that it has a statutory right to litigate preclearance and is being unduly punished for deciding to forego the DOJ’s administrative process. If the delay effected by seeking preclearance in court bars Texas from implementing the map constructed by its elected legislators, then §5 is even more burdensome than the Court intimated in Namudno. This said, Texas does not explicitly assert that §5 is unconstitutional. Rather it concludes by deviating from its earlier position that new maps cannot be implemented absent preclearance. The state requests that the Court order the interim maps dispatched in favor of those drawn by the legislature. The argument, then, ostensibly rests on state sovereignty.

Uncertainty

 Whether the Court will seize the occasion to speak on §5’s constitutionality is unclear. The Justices may use the litigation to clarify the role of district courts in generating remedial maps. But the Justices could grant Texas the relief it has requested. Enabling Texas to use maps before preclearance would send a strong message: even where core discrimination may exist, §5 imposes an unconstitutional burden. The real possibility that the Texas State Legislature intentionally suppressed the voting rights of minorities may give the Justices pause. Dramatic growth in the Hispanic community, and other minority communities, accounts for the additional Congressional seats that Texas received during reapportionment. But only one of the legislature’s four new districts will provide minority voters with an opportunity to elect candidates of their choice. As a result, this case may not be an ideal vehicle for attacking the Voting Rights Act. Still, many who believe that discrimination continues to encumber minority voting rights have started swimming, lest they sink in a world without §5.

Additional coverage is widely available, as at Scotusblog and the Brennan Center. Election law may come before the Court again in the Spring, if the Justices elect to review the Montana State Supreme Court’s decision to uphold a ban on corporate spending despite Citizens United.

Three days later, the Crimson ran an editorial reprimanding the protesters’ behavior on two grounds, the first of which was that the Occupiers’ choice of target reflected an underlying naivety:

Occupy Harvard’s targeting of a Goldman Sachs recruiting event presents a facile and trivializing interpretation of the root causes of the economic catastrophe and debases our national conversation on the issue. . . .  Obviously, Goldman Sachs is not without blame in the financial crisis. . . .  However, to single out Goldman Sachs as a single target of opprobrium for causing the financial crisis is myopic and unoriginal . . . .

If anything is unoriginal, it is the Crimson’s fatherly rebuke.  Indeed, there’s something more than just a little familiar about the way the editorial scolds the protesters’ alleged simplemindedness.  The logic underlying the Crimson’s argument is one we’ve seen countless times, and one we’ll continue to see in the months ahead: (1) The economic crisis is the result of a confluence of various factors.  (2) Many if not most of the Occupy protesters don’t seem to understand all of the aforesaid factors, for they tend to direct their indignation only at big-name targets like Goldman Sachs.  (3) Therefore, many if not most of the Occupy protesters are uninformed.  Q.E.D.

The logic sketched above constitutes something of a cheap shot, for it is itself guilty of presenting a “facile and trivializing interpretation” of the dynamics at work in a protest like Occupy Harvard.  Any protest of a sufficiently large scale will organize itself around easily recognizable symbols, symbols that, by definition, will have the effect of simplifying and personifying debates about economic or social policy.  To berate a protest movement for demonstrating against highly visible and emblematic targets—or for having the effect of removing subtlety from the discourse—is not unlike scolding a fish for living in water.  Faced with the elementary question of how best to allocate scarce resources, nearly any protest movement that aims to attract attention will opt to target institutions that the public has come to associate, psychologically speaking, with the phenomena to which the movement is opposed.

To protest a Goldman recruiting event is not to suggest that the firm is somehow “the evil enemy of the 99 percent,” the conception of Goldman Sachs that the Crimson incorrectly ascribes to Occupy Harvard.  It is highly unlikely that the protesters were aiming to “single out” Goldman; nor, for that matter, did their strategic decision to target the firm necessarily express any sort of unwillingness to think carefully about the many determinants of our present (socio)economic state of affairs.  There are principled ways to criticize both the form and substance of Occupy Harvard.  But it is irresponsible to attack the protesters on the ground that they made the tactical choice to picket a firm that happens to have assumed a symbolic resonance in the popular imagination.

The Crimson offered a second and equally underhanded criticism of the Goldman protest:

More unsavory, the protest carried with it a strong sentiment against Harvard undergraduates seeking careers in the financial services industry.  Perhaps it is not ideal that so many of us go on to Wall Street, but targeting individuals looking at career options in this way is hardly the appropriate remedy.  Many students who enter these fields are not the scions of banking families but rather hard-working students looking for a challenging job that lets them experience a newfound financial prosperity.  To exhort students to consider their contribution to society when choosing a career is one thing but to target those who want to work for Goldman Sachs misses the point; whatever negative impact the company has on our economy is due to structural issues rather than questions of individual morality.

Note the cautious, euphemistic wording (“newfound financial prosperity”?).  Note also the second half of the last sentence, which makes the bizarre claim that “individual morality” has nothing to do with the “negative impact” of certain American corporations.  More to the point, however, the Crimson attributes to the Occupiers “a strong sentiment” against Harvard students who hope to work in finance.  It is by no means clear that the Goldman protest “carried with it” any such sentiment.  That the protesters meant to convey a general criticism of Goldman Sachs is a fact; that their criticism extended to students looking to work for the firm is a presumptuous inference.  From the fact that the Occupiers marched on a Goldman recruiting event, it does not follow that they sought to pass judgment on Harvard students who aspire to join the firm.  Again, there may be good reasons to take issue with the Goldman protest, but they’re certainly not the ones the Crimson has provided.

Now suppose, for the sake of argument, that the Occupiers did intend to sway students who aim to work in fields like finance and law.  Why, exactly, does the Crimson think that it would be “unsavory” to do so?  To put the question another way, what is wrong with one student challenging the career choices of another?  The Crimson does not provide an answer.  The paper notes, vaguely, that it’s somehow not “appropriate” to critique students’ career choices, but it doesn’t explain why doing so is supposed to be wrong.  Ultimately, the Crimson contents itself with the vacuous conclusion that challenging fellow students’ career choices “misses the point.”  But what is that supposed to mean?  And isn’t the Crimson forgetting the obvious fact that there’s something to be gained from pressuring students to account for the decisions they make in the job market?

It’s noteworthy that, instead of confronting the claims that Occupy Harvard has been putting forward, the Crimson felt the need to come to the preemptive defense of students who opt for corporate careers.  The Crimson’s position seems to be that, as a general matter, it is wrong for Harvard students to take issue with the career choices of their peers.  Such a position is simply irresponsible.

At that same debate, Gingrich took the stage as the narrator dubbed him the “Big Thinker.” It is a label he has gleefully embraced all election season long, and it has been picked up—often without any sense of irony—by myriad news outlets. When Gingrich engaged in his “Lincoln-Douglas style” debate with Herman Cain in October, for instance, the write-ups jumped on the contrast between Cain the political neophyte and Newt Gingrich the Ideas Man. The Atlantic called Gingrich the “wonk-in-chief”; the Washington Post noted that he had displayed his “professorial bent” and speculated that a Gingrich White House could be a veritable “Ideas Factory.” The problem with the Big Thinker label, however, is that it gives Gingrich credit for his supposed intellectual heft while hardly ever subjecting the contents of his ideas to the kind of scrutiny they deserve. It allows a candidate as fundamentally conservative as his less intellectually pretentious rivals to hide his radicalism behind a veneer of respectability. Now that Gingrich’s meteoric rise in the Republican polls has made him a plausible candidate, it is more important than ever to take him, and his ideas, seriously.

One of the most consistent themes of Gingrich’s rhetoric has been his condemnation of the “liberal secularist” agenda and its perversion of the proper role of religion in American public life as envisioned by the religion clauses of the First Amendment. Of course, conservative crusades against liberals and the judicial system as being anti-religious are nothing new. Gingrich’s stance is particularly insidious, however, because it purports to be a historically-rooted Constitutional theory—and because Gingrich, more than any other serious Republican candidate in recent memory, is so widely credited with “intellectual” credentials.

Gingrich laid out his First Amendment theory quite extensively in the most recent of his seemingly endless stream of policy books, 2010’s To Save America: Stopping Obama’s Secular Socialist Machine. In it, he sketches a picture of American moral decline driven by a deep-set liberal conspiracy to pervert national values: “Rejecting American traditions of hard work, self-sufficiency, and honesty, [liberals] encourage Americans to learn how to game the system through the intervention of an activist government–sucking the maximum resources possible out of taxpayers while contributing the minimum.” Central to his narrative is the conviction that the liberal campaign to “drive God from the public square” is not only a sign of cultural downfall, but a perversion of the Founding Fathers’ vision as embodied in the Constitution.

The Founders, asserts Gingrich, were anxious to ensure that religion had a central place in American public life. Reasoning from their many statements extolling the importance of religion in instilling virtue in a society, and from the acknowledgments of the Creator in the Declaration of Independence, Gingrich extols the Free Exercise Clause as an express counterweight to the Establishment Clause—and as the embodiment of the Founders’ belief that “the maintenance of liberty requires virtue.” The separation of church and state, then—the origins of which he pillories as being derived from a misinterpretation of Jefferson’s famous letter to the Danbury Baptists—is a false ideal. The founding generation envisioned government patronage of a public role for religion, limited by the Establishment Clause only to the extent that public observance could be neither coercive nor discriminatory among denominations.

In Gingrich’s narrative of modern American history, this tradition of accommodation of religion has been subverted by a conspiracy whose express aim is to banish religion to the very margins of national life, driving “God and morality to one hour a week in Church, Synagogue, Mosque, or Temple, but to preserve the other 167 hours a week for secularism.” He lays the blame for this conspiracy at the feet of many forces, including Hollywood and Big Labor—and, inevitably, “Barack Obama and Nancy Pelosi”—but ultimately declares that the prime mover in the war on religion has been the judiciary, with its abuse of the proper historical understanding of the Establishment Clause. He dates the beginning of this jurisprudential assault on values back to the early 1960s—specifically the Supreme Court’s decisions in Engel v. Vitale (1962) and Abingdon School District v. Schempp (1963) striking down school-sponsored prayer in public schools. Gingrich attributes a stunning variety of national moral problems to the legacy of the school-prayer decisions: from “drug addiction,” “teenage pregnancy,” and “assaults on teachers” to even more general ills such as “violence” and “disrespectful attitudes.” As he detailed in To Save America and has continued to emphasize in many speeches, Gingrich believes that school prayer is just the beginning: judges have used the Establishment Clause as a club with which to beat back the public religious observances of teachers, students, government officials, private organizations, and ordinary citizens. As particularly egregious examples of this backsliding, he lists three recent cases: the Boy Scouts being prevented from using federal land for a campout “because of their religious views,” the ACLU suing to remove a World War I memorial cross from public land in the Mojave Desert, and the 9^th Circuit decision questioning the use of “Under God” in the Pledge of Allegiance. All this derives, he insists, from a fundamentally flawed liberal understanding of the First Amendment—a “bed of lies that has obscured our understanding of the ‘separation of church and state and ‘religious freedom.’”

Gingrich has made the assault on “secular socialism” a centerpiece of his 21^st-Century political identity, and he has linked it to a broader body of rhetoric assailing activist, unelected judges as threats to the integrity of American democracy. The argument finds resonance, it seems, with the evangelical base of the Republican Party, for whom belief that the nation’s Christian majority is suffering cultural persecution (with the “War on Christmas” being only the most prominent example) has long since become an article of faith. When subjected to any serious scrutiny, however, the folly of the argument is glaringly apparent. It proceeds from deeply questionable assumptions about the original intent of the religion clauses, and more importantly it displays an almost fantastic misrepresentation of how the Court’s recent Establishment Clause jurisprudence engages with that tradition.

To support his preferred interpretation of the original meaning of the Establishment Clause, Gingrich cherry-picks quotations from the founders indicating their belief that religious belief is good for society as a whole. George Washington: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensible supports”; Thomas Jefferson: “The interests of society require the observation of those moral precepts…in which all religions agree.” Establishing that Washington, Jefferson, and Adams—like nearly all American public figures, deists included—believed that religion had social value hardly proves that the Establishment Clause intended no separation of church and state. Even assuming the validity of that premise, though, Gingrich himself concedes that the Clause must have some restrictive power. He points out that even Jefferson and Madison were content to attend ceremonial religious services at the US Capitol, and he extrapolates from that a view that even the most progressive framers of the Constitution had no objections to government acknowledgment of religion that was non-coercive and endorsed no one sect over another.

The only kernel of truth in Gingrich’s indictment of the current Court’s rampant “liberalism” on Establishment Clause questions is that the preferred interpretations of its most conservative members have never achieved majority status. Justice Thomas’s view that the Clause doesn’t even apply to state governments remains a relatively lonely one. The strongest mainstream conservative view, summarized by Justice Scalia’s dissent in McCreary County v. ACLU of Kentucky as the proposition that the Constitution “does not mandate governmental neutrality between religion and irreligion,” has likewise never commanded five votes on the modern court.

Nonetheless, the early 21^st Century Supreme Court is hardly waging a concerted assault on religious values. In fact, and as it has on so many other fronts, it has beaten a distinct—if haphazard—retreat from the vigorous separationism of the mid-century Court. On the issue of government subsidies to religious schools, the Court has issued several recent decisions, including 2002’s Zelman v. Simmons-Harris, which seem to depart from earlier orthodoxy holding that “no tax, large or small,” could contribute to religious education. Although it has occasionally literally “chased religion from the public square” by striking down public nativity displays at Christmas, it has also displayed solicitude for less sectarian displays of religious sentiment, or for commemorations of the “historical” value of religious texts like the Ten Commandments (Van Orden v. Perry, 2005). In recognizing the legitimacy of invocations of what it has called our “civic religion” or “ceremonial deism” on public occasions, the Court has nonetheless required, at a minimum, that the setting be free of coercion. Although the majority’s decisions in such cases as Lee v. Weisman (1992) and Santa Fe Independent School District v. Doe (2000) that school settings involve a higher risk of coercion has not set well with conservative members who prefer a more literalist definition of “coercion,” the general principle is a familiar one—the Court has no more intention of banishing God from our national discourse than did Jefferson or Madison. It is also a principle Gingrich should recognize; it is not too far from the non-coercion, non-endorsement accomodationist norm he so lauded in the practices of the Founders. Indeed, the Supreme Court may be vulnerable to criticism for watering down the Establishment Clause, or for a Free Exercise jurisprudence which has been unduly burdensome on minority sects. It may even be that the Court’s doctrine on the whole subject is hopelessly muddled and confused, as Justice Thomas recently alleged. A “secular socialist” conspiracy, however, there is not.

It is almost certainly a mistake to analyze Gingrich’s claims in good faith. At bottom, he represents only one of the most articulate figureheads of a movement which in the last generation has reaped tremendous victories from an increasingly conservative Supreme Court even while it continues to score political points engaging in a crusade against a phantom “activist judiciary.” On the subject of the First Amendment Gingrich trafficks in exaggerations and outright fabrications entirely unworthy of his Establishment respectability and his Big Thinker moniker. His conjuring of a fictitious conspiracy against First Amendment religious values as a predicate for a wide-ranging attack on the very independence of the American judiciary is particularly dangerous, and particularly worthy of exposure.

In 2007, petitioner Monroe Setser was sentenced in federal court for possession of methamphetamine with intent to distribute.  Setser’s crime represented both a federal and state offense, and as such, Setser could be expected to do time in both state and federal prison.  Yet at the time of his federal sentencing, Setser had yet to be convicted of the state charge.  In anticipation of such a conviction, the district court directed that Setser’s federal sentence would run consecutively to any state sentence Setser might eventually receive.

At issue in the case is the interpretation of 18 U.S.C. § 3584(a), which provides:

If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively. . . .  Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the state mandates that the terms are to run consecutively.  Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

Both Setser – and the United States, which is not opposing Setser’s appeal – argue that § 3584(a) does not give district courts authority to order a federal term to run consecutively to a hypothetical state imprisonment.  Section 3584(a) applies in two situations and two situations only: (1) when the federal court imposes multiple terms of imprisonment “at the same time”; and (2) when the federal court sentences a defendant who is “already subject to an undischarged term of imprisonment.”

To be sure, language in the statute refers to “[m]ultiple terms of imprisonment imposed at different times.”  This does not provide license, however, to structure the service of sentences yet to be imposed.  To do so would read § 3584(a)’s limitation out of the statute.  As the government writes: “If district courts could order consecutive or concurrent service whenever ‘multiple terms of imprisonment’ are imposed or anticipated,’ Congress would have no reason to specify that the district court’s authority extends to defendants with ‘undischarged’ sentences.”

Evan Young, arguing against the petitioner by invitation of the Court, contends that § 3584(a) should be construed as providing default rules for some, but not all, sentencing situations.  According to Young, “[d]etermining the length of a criminal sentence [has always been] the province of the judge, not the jailer.”  The common law has long afforded judges discretion in sentencing, which Congress would not have withdrawn without a clearer indication.  The bulk of the brief then goes on to repudiate the petitioner’s and amici’s arguments.

Setser is an interesting case – both a technical analysis of statutory text and a philosophical debate about the relationship between the executive and judicial branches in the context of sentencing.  Throughout their briefs, both sides articulate a vision of sentencing that depicts the process as a necessarily reasoned inquiry.  After all, a proper sentence serves to “provide just punishment,” “afford adequate deterrence,” and “protect the public from the future crimes of the defendant.”  Yet when a judge must make assumptions about what kind of sentence a colleague will impose at a later proceeding, is she really able to fashion a term of years that is just?  Is not the second judge, possessing all the relevant facts, in a better position to structure a suitable sentence?  Though there is certainly more to Setser than the answer to these two questions, it is important not to lose sight of the underlying policy considerations in an appeal otherwise resting on a meticulous parsing of statutory text.

Obama’s election signaled to many that society had overcome its problems with racial discrimination, some even contending that the election represented a new “post-civil rights era.”  Democrats have recently relied on this notion and seem reluctant to expose themselves to the controversies that inevitably stem from politicizing race. But perhaps the myth of the colorblind America is very real.  As some argue, this strategy may be harmful.  The left’s silence on race allows us to ignore the persistent legacies of institutional discrimination. In prior decades, policy changes in all areas, from employment and poverty to education and housing attempted to remind us how much work society had to do to unravel hundreds of years of history.  But policy issues are now less frequently discussed in the context of race but more in socioeconomic terms or as individual and fiscal responsibility.  The last few decades have seen a reframing of race from the left.

Similarly, the right has reframed racial discussions in ways that may distort race and that are self-serving for politics.  The message is no longer government fixes versus individual responsibility, but rather that government handouts subliminally tell minorities that we don’t believe in their abilities and that society engages in high-tech lynching.  By framing politics in this way, Cain attempts to draw voters with “conservative positions on gun rights, abortion and gay marriage, as well as disdain for tax increases.”   A Fox commentator mentioned on air last month that Herman Cain might be the first real black president, suggesting that Obama is “not black enough” because of his mixed heritage.  Regardless of which political side might be right about race, it matters more that our political discussions don’t distort or cloud racial discussions in the political process.  We should question whether it is helpful to invoke notions of a race-blind society, the authentic blackness of our presidential candidates, or high-tech lynching, and whether this political rhetoric helps us solve real inequalities and existing discrimination.

The messaging in Herman Cain’s campaign has also distorted the allegations of sexual harassment.  The allegations unveiled during Thomas’s confirmation hearings led to a broader examination of sexual discrimination in the workforce.  On the other hand, Cain’s recent events undermine the stories of the female accusers, as the controversy focuses more on the legitimacy of each side, reputation, and finger pointing. This framing of women’s issues suppresses the voices of the female accusers, making their charges and the women themselves sound frivolous. Cain called Sharon Bialek, one of his accusers, a troubled woman and accused the Democratic machine for encouraging her to come forward.  The Cain campaign, which exposed Bilek’s prior lawsuits and bankruptcies, defended its behavior by arguing that she brought it upon herself: “Ms. Sharon Bialek has placed herself in the public spotlight through making patently false allegations against Herman Cain, it is only fair to compare her track record alongside Mr. Cain’s.”  Cain’s attorney, Lin Wood, argued that Cain is the victim and warned potential accusers that they will go through “intense scrutiny” if they bring their claims forward.  And a Youtube video shows Cain joking about whether Anita Hill will endorse his campaign. As a result, there is no space to address the core issue of sexual harassment and no work is being done to prevent these incidents in the future.

We have little to gain with this response to sexual harassment.  Regardless of which side is right, whether Democrats or Republicans, or Cain or the women who came forward, what we need most is an open and honest discussion about race and sexual harassment, rather than clouding these issues in a way that best suits each side’s political goals.

The case, North Carolina v. Yencer, began on January 5, 2006, when Davidson College Campus Police Officer Wesley L. Wilson observed Julie Anne Yencer speeding and crossing over the center line at around 12:15 AM.  After failing two breathalyzer tests, Yencer was arrested for driving while impaired and reckless driving.  Yencer filed a pretrial motion to suppress, in which she argued that North Carolina’s Campus Police Act, which authorizes the Attorney General to delegate police powers to private religious and secular universities, violated the Establishment Clause.  The Act requires that campus police officers meet the same education and training standards as state law enforcement officers, and authorizes the Attorney General to inspect records, conduct investigations, and revoke certifications of campus police agencies.  Campus police officers have the same powers as municipal and county police officers, including the authority to issue fines and to make arrests for felonies and misdemeanors.

The trial court dismissed Yencer’s motion to suppress, and Yencer subsequently pled guilty, but reserved the right to appeal.  The Court of Appeals reversed, holding that Davidson College was a religious institution for purposes of the Establishment Clause, and that Yencer’s arrest violated the First Amendment.  On November 10, 2011, the Supreme Court of North Carolina reversed the decision of the Court of Appeals.  The court found that Davidson College is not “predominantly religious,” and therefore that the Campus Police Act, as applied to Yencer’s conviction, did not run afoul of the Establishment Clause.

The ruling in Yencer is consistent with the decisions of other state courts.  In Myers v. Indiana, the Court of Appeals of Indiana held that the campus police of Valparaiso University, which is affiliated with the Lutheran Church, could constitutionally arrest a student for driving while intoxicated.  In Michigan v. Tubbergen, the Court of Appeals of Michigan upheld the arrest of a student by Hope College campus police officers against a First Amendment challenge, even though the college is affiliated with the Reformed Church in America.

Yencer’s attorney, Allen Brotherton, is considering appealing the decision in federal court.  Because the state supreme court’s decision involved an interpretation of federal constitutional law, it can be reviewed directly by the Supreme Court of the United States, should it decide to grant certiorari.

The justices on the Supreme Court subscribe to three vastly different theories about how the Establishment Clause should be interpreted.  The strict separation theory holds that government and religion should be kept separate as much as possible.  Those who subscribe to this theory apply the three-prong test pronounced in Lemon v. Kurtzman: (1) “the statute must have a secular legislative purpose;” (2) “its principal or primary effect must be one that neither advances nor inhibits religion;” and (3) “the statute must not foster ‘an excessive government entanglement with religion.’”  Justices Breyer and Ginsburg subscribe to the strict separation theory.  The neutrality theory believes that the government must neither favor one religion over another nor favor religion over secularism.  Justice O’Connor, who is most closely associated with this theory, promulgated the symbolic endorsement test in her concurring opinion in Lynch v. Donnelly, which states that a government action violates the Establishment Clause if a reasonable observer would perceive the action to symbolically endorse a particular religion.  Finally, the accommodation theory seeks to make room for religion’s presence in government.  Accommodationist judges apply the coercion test, which holds that the government action violates the First Amendment only if it coerces religious participation.  There are currently five justices on the court who subscribe to the accommodation theory: Alito, Kennedy, Roberts, Scalia, and Thomas.

Legislative acts that delegate police power to private universities, including religiously affiliated universities, would likely be constitutionally permissible under all of the Establishment Clause tests.  Reaching this outcome would be easy for those who abide by the accommodation theory, as long as the police were merely enforcing the laws and regulations of the state, since the provision of secular police protection in no way coerces religious participation.  The decision would be equally easy for a proponent of neutrality.  Just as no reasonable observer would think that police protection at a religious rally constituted symbolic endorsement of that religion, no one could reasonably think that police protection of students, faculty, and staff at a religiously affiliated university constituted symbolic endorsement.  Indeed, if the Court were to strike down a campus police agency, municipal police would be asked to take over in its place.  No one would suggest that a university should be deprived of police protection, merely because of its religious affiliation.

A strict separationist applying the Lemon test would likely reach the same outcome.  Acts that delegate police power to universities have a clear secular purpose: they aim to ensure the safety of students, faculty, and staff.  Nor does providing police protection to religiously affiliated and secular universities alike advance or inhibit religion in any way.  Whether police protection would create an excessive government entanglement with religion is a more difficult question.  Indeed, this was the issue that the Supreme Court of North Carolina grappled with in Yencer.  In their amicus brief, the North Carolina Advocates for Justice argued that because the Campus Police Act granted the Attorney General authority to oversee campus police forces, the Act fostered excessive government entanglement with religion.  The court rejected this argument.  In Agostini v. Felton, the United States Supreme Court said that in determining whether a government action created excessive entanglement, the Court would consider “the character and purposes of the institutions that are benefited, the nature of the aid that the State provided, . . . the resulting relationship between the government and religious authority[,] . . . whether the religious institutions were predominantly religious,” and whether the aid was religiously neutral.  The court in Yencer found that Davidson College was not a “predominantly religious” institution, and consequently that there had not been excessive entanglement.  Additionally, since the Campus Police Act requires officers to “apply the standards established by the law of this State and the United States,” they cannot apply campus rules and regulations, which may be religiously based.

The issue of delegation of police powers to private, religiously affiliated universities may provide a rare opportunity for strict separationists, accommodationists, and everyone in between to find common ground.  Nevertheless, given the Supreme Court’s focus in Agostini on the character of the institutions benefited, one can only wonder whether a court would come to a different outcome in a case involving an institution whose purpose is more overtly religious in nature, such as a divinity school.

On a purely political level, the decision presents itself as an outrage of political correctness run amok—a new provocation from a court within the 9^th Circuit, the same body which sparked the “Under God” firestorm of the last decade. As a legal matter, the ruling is in keeping with courts’ increasingly deferential interpretations of the standards governing school regulation of student speech. Perhaps more so than other recent school speech cases, however, it helps illustrate one of the most problematic aspects of the Supreme Court’s dominant Tinker framework—the possibility that schools can engage in viewpoint discrimination or allow a “heckler’s veto” by suppressing unpopular viewpoints to avoid unpleasantness.

The case arose out of an incident at Live Oak High School in California’s Bay Area in May of 2010. At the school, where Mexican-American students now constitute a large portion of the student body, a tradition of informal celebrations of Cinco de Mayo has developed; students bring and display Mexican flags and other paraphernalia in celebration of the holiday. Live Oak has some history of gang activity and altercations between white and Latino students, and on Cinco de Mayo, 2009, verbal tension arose when a group of white students brought an American flag to school and started a “USA” chant. The principal reported hearing some Mexican-American students make verbal threats to the white students involved, but no actual violence occurred. Nonetheless, the school administration was aware of the history of tension and was especially sensitive to the possibility of disturbances when the holiday arrived in 2010. Three students who wore American flag t-shirts to school that day were sent to the principal’s office, where administrators asked them to turn the shirts inside out or change clothes. When they refused, they were sent home for the day.

In analyzing the students’ First Amendment claims, Judge Ware noted that the students’ speech—which was not obscene or otherwise objectionable in an absolute sense—nonetheless fell under schools’ power to limit student speech as laid down in the Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District. According to the Tinker standard, public school officials may limit students’ otherwise constitutional speech, but only on the basis of “facts which might have reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” As Ware further noted, 9^th Circuit precedent makes it clear that officials need not wait for an actual disturbance or interference, but can act preemptively to forestall one.

Since school officials are entitled to some deference in determining the likelihood of a disturbance, Ware found that the documented history of ethnic tension at the school in general, and the fraught environment surrounding Cinco de Mayo celebrations in particular, justified the administrators’ cautionary measures. Furthermore, he noted that a number of circuits have concluded that the threat of racial or religious violence falls within the scope of “disturbances” as envisioned by Tinker. In a majority of cases in which courts have addressed the legality of school bans on student display of Confederate Flag paraphernalia, for instance, courts have sided against students’ free speech claims. When faced with student conduct that has the clear potential to exacerbate existing tensions or provoke racial enmity, Ware concluded, schools should be free to make a context-sensitive decision to prioritize the maintenance of a stable learning environment, even if free speech is considerably burdened. Otherwise, schools are “between the proverbial rock and hard place: either they allow disruption to occur, or they are guilty of a constitutional violation.”

Although it was rendered in a case whose facts are particularly sympathetic for the plaintiff students, there is no question that this decision is within the mainstream of courts’ increasingly deferential interpretations of the Tinker standard. Tinker itself, however, does not necessarily command such a government-friendly approach, and school speech jurisprudence is direly in need of tightening and clarification. It is possible to make a principled distinction between this situation—a school’s attempt to ban peaceful displays of an inoffensive symbol because of threats of violence—from past applications of the standard. First, the American flag is not itself a symbol of violence or racial hatred; though it may provoke hostile reactions in certain circumstances, it is almost axiomatic that an American public school administration would never be justified in finding the display of a symbol of national unity to be inconsistent with the school’s educational and socialization mission. Second, the students here were not the instigators, but rather the potential victims of, a violent disturbance; though schools must prioritize safety, there is good reason to believe they should be especially wary of sanctioning violence or intolerance of dissent by suppressing “unpopular” viewpoints—allowing students who threatened violence against the plaintiffs to exercise a “heckler’s veto” over the content of their speech.

Even though it remains the default standard, the Supreme Court has recognized that Tinker does not apply to every type of student speech. In Bethel School District No. 403 v. Fraser, the Court in 1986 distinguished Tinker and held that schools are broadly entitled to ban certain kinds of “vulgar and offensive” speech, regardless of whether it is necessary to do so to prevent a disturbance. In doing so, it stressed the importance of schools’ “communitarian” function in molding citizens of a pluralist democracy: “the fundamental values necessary to the maintenance of a democratic political system disfavor the use of terms of debate highly offensive or highly threatening to others.” Judge Ware implicitly constructed Fraser as banning only “obscene” school speech, but it can embrace a wider field of objectively offensive conduct, including racial provocations. The circuit courts entertaining challenges to Confederate flag bans have mixed Fraser and Tinker casually, but the unsuitability of the symbolism of the Confederate flag to a school whose mission is to inculcate tolerance played a role in many of the decisions. For example, the 11^th Circuit held that a student civil war history enthusiast could be banned from displaying the Confederate flag even if his subjective intentions in doing so were not offensive, arguing that was justified in giving great weight to its mission to “teach students of different races, creeds and colors to engage each other in civil terms” and that the flag had an unmistakably offensive meaning for most African-American students. Similarly, in the recent 9^th Circuit case of Harper v. Poway, the court referred to the language of Fraser in upholding a school’s decision to prevent students from wearing anti-gay t-shirts during the school’s unofficial gay rights observance. Though line-drawing problems exist with Fraser as with Tinker, it seems unobjectionable that schools, as custodians of impressionable children, should be entitled to prohibit certain types of obscene or hateful speech which would be permitted among adults. It is just as clear, however, that the Confederate flag or a t-shirt proclaiming “homosexuality is shameful” are objectively offensive and divisive in a way that the U.S. flag is not. Bringing a national flag to school on Cinco de Mayo may have been contrarian and childish, but it falls short of being objectively hateful or intimidating.

A more rigorous policing of the line between the Fraser and Tinker standards would reinforce schools’ claim to deference under Fraser when dealing with speech objectively incompatible with a positive school environment, while at the same time highlighting the extent to which imposing a content-based restriction on speech should be treated with caution under the Tinker standard. The rationale for such caution, of course, is rooted in the fundamentals of First Amendment and in the 14^th Amendment’s Equal Protection doctrine; as Judge Ware himself noted in his decision, it is a basic ground rule that “government may not grant the use of a forum to people whose views it finds acceptable, but deny it those wishing to express less favored or more controversial views.” Since students undeniably have First Amendment rights—albeit more limited ones—it makes sense that the same class of restrictions which would be especially disfavored in general should also be disfavored in the school contexts. And indeed, the Court has recognized this. In Tinker itself, it noted that review of schools’ decisions must ensure that a prohibition on speech “was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Moreover, “the prohibition of expression of one particular opinion is not constitutionally permissible”—even in a school. As noted in an analysis of the large body of circuit cases on the Confederate flag issue, the modern courts’ deferential interpretation of Tinker creates a distinct danger of allowing schools to fall back on a “heckler’s veto” for the sake of convenience: the combination of Tinker and Fraser essentially gives schools a free pass, enabling them to invoke the most advantageous of either, or both, to justify their actions, thereby escaping a lawsuit.”

The possibility that the school has engaged in lazy viewpoint discrimination is of special concern here. Unlike in paradigm Tinker “substantial disruption” cases, the students engaged in speech here were not the instigators of the disturbance of school order which worried the administrators. Though their “provocation” in displaying American flags may have been the most proximate cause of a tense environment at the school, the groundwork for the tension was laid by the Mexican-American students’ own act of unsanctioned self expression. Where neither group of students have engaged in speech whose content is fundamentally incompatible with the schools’ communitarian and educational function—that is, outside of the Fraser zone—then school administrators’ first recourse should be to combat the disruption in a neutral way. Moreover, if the threats of violent behavior were really as one-sided as the record of the California case indicates, then the school would be better fulfilling its educational duty by restricting the speech of the potential aggressors rather than victims. Schools should, of course, have the option to sacrifice some student expression for the sake of preserving order if necessary; courts should be wary, however, of allowing schools to abdicate the very citizen-building mission on which their power to restrict speech is based by taking the easy way out and restricting only “unpopular” speech when there is no justification for such viewpoint discrimination. In this respect, at least, permissive interpretations of the Tinker standard are in danger of straying too far from the foundational case’s preliminary exhortation: that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

It seems unlikely that protesters would be successful in appealing the court’s judgment. Complicating protesters’ argument that camping in the park should be protected as free speech is the fact that the park is privately owned. Harvard University urban planning professor Jerold Kayden notes that the owners of the park are “allowed to adopt rules for managing their space.”

It is unclear what affect this holding will have on the actions of other cities experiencing the Occupy Wall Street protests. Protesters complain that they are increasingly being arrested or evicted from areas in cities around the world. Notably, however, occupy protesters in Boston have won protection from being evicted from Boston’s Dewey Square. On November 16^th, the Suffolk Superior Court issued a temporary restraining order preventing police from evicting protesters from Dewey Square or removing their tents and personal belongings. There will be another hearing to determine the long-term status of protesters in Dewey Square, but protesters say that they are optimistic about their continued ability to protest in the square.

The case Ms. Andrieu was defending, Smith v. Cain, arose from a mass murder in 1995.  Juan Smith was convicted on the crime based solely on the eyewitness testimony of a survivor.  Somewhat unbelievably, prosecutors presented no physical evidence – no fingerprints, no weapons, no anything – that would link Smith (or anyone else) to the murders.

Unbeknownst to Smith, the prosecution’s witness expressed reservations about his ability to identify his assailant.  Immediately after the shootings, the witness said that he could not describe his attacker beyond the fact that the shooter was black.  Later, he said that the assailant had a “[m]outh full of gold.”  After that, however, the witness said that he had not seen the shooter’s face and could not identify him.  Though the witness eventually named Smith as his attacker, the identification came after he had seen Smith’s picture in a newspaper article naming Smith as a suspect.  Moreover, notes made contemporaneous to the ID noted that the witness felt “harassed” and pressured to comply with police’s request.

Ms. Andrieu attempted to explain away the D.A.’s failure to turn over the evidence by asserting its immateriality.  Under Brady v. Maryland, the prosecution need only turn over evidence that is “material” to the case – evidence likely to affect its outcome.  Justices Ginsburg and Kennedy both stated their disbelief that the evidence in question would be immaterial.  Chief Justice Roberts said, “If you were the defense lawyer, you really would like to have that statement where he said, ‘I couldn’t identify them [the shooters].’”  When pressed, Ms. Andrieu vacillated some, stating that a “prudent prosecutor” would have divulged the information.  Justice Scalia was more blunt: “Of course it should have been turned over.”

The justices’ tenor at oral arguments suggests that the Court was not so much seeking to resolve a complicated nuance of Brady jurisprudence, but rather sought to chastise publicly the New Orleans District Attorney’s Office, now notorious for its underhanded trial tactics and ethical violations.  Beginning in 1995, the Court has admonished the office three times for “blatant and repeated” ethical violations.  Since 1990, ten defendants convicted in New Orleans parish have been exonerated based on Brady violations alone, including four capital defendants.  Faced with an office that refuses to change its ways, the Court may have opted to shame the office into reform.  Indeed, commentators have referred to the office’s performance at oral arguments as a “disaster.”  Based on the justices’ questioning, New Orleans better learn quickly: the Court already seems to have lost its patience.

To listen to the oral arguments, click here.

The Doctrine

In the decades since the Supreme Court’s foundational campaign finance decision, Buckley v. Valeo (1976), candidates have not appeared in advertisements run by outside groups. Candidates have exercised discretion with good reason. Though the Buckley Court struck down limits on independent expenditures, it not only upheld limits on contributions, but also affirmed constraints on expenditures coordinated between candidates and outside groups. Like contributions, the Court said, coordinated expenditures implicate the government’s compelling interest in avoiding the actual or apparent existence of quid pro quo corruption. The Court asserted that:

“[Independent Expenditures] controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse.”

The Court continued, asserting that the Federal Election Campaign Act’s (FECA) requirement that expenditures be executed independently “alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” This strong language has been reinforced by a series of Supreme Court decisions culminating in Citizen’s United, where the Court reiterated that “prearrangement and coordination” implicate the actual or apparent corruption concern. As a result, the statutory definition of contributions still includes any expenditures “made in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate.” That definition, and the Court’s willingness to effectuate it, effectively deterred coordination for decades. What is worrisome, however, is that recent litigation suggests the FEC may not credit the Court’s body of law on coordination.

 The Shays Cases

After Congress passed the Bipartisan Campaign Reform Act (BCRA) in 2002 (the McCain-Feingold Act), the FEC initiated rulemaking proceedings to update its regulations. With regard to its coordinated communication regulation, the agency had no choice but to revisit its definition—Congress ordered it to do so in the BCRA. Congress required that the new regulation “not require agreement or formal collaboration to establish coordination.” Pursuant to that directive, the FEC created two standards, one a default and the other applicable within 120 days of an election or primary. The default standard was subsequently challenged in Shays I. The standard defined coordinated communications as those that “either recycle official campaign materials” or “expressly advocate[ ] the election or defeat of a clearly identified candidate for federal office.” After the DC District Court invalidated the definition, the FEC appealed. Affirming, the DC Circuit Court recognized that the definition not only enabled candidates to collude with independent expenditure groups, but also allowed them to do so explicitly. As the Respondent’s had noted, candidates and outside groups could reach express written agreements outlining particular strategies and delineating content, so long as subsequent advocacy did not “recycle official campaign material” or use the magic words associated with express advocacy. Invoking McConnell, the Court reasoned that the FEC’s standard relied were “functionally meaningless.” The FEC, having devised an anti-coordination regulation that permitted express coordination, was told to try again.

The FEC’s next attempt to define coordinated communications looked familiar when it came before the DC Circuit. The agency had, ostensibly, left its previous definition intact. It justified this decision by suggesting that outside of the prescribed windows—90 or 120 days—political spending was marginal enough to warrant a relaxed approach. The DC Circuit found that logic unavailing. In litigation termed Shays III, the Circuit again used the language of McConnell holding that:  

The FEC’s coordinated communication definition frustrated Congress’s intent of “prohibiting soft money from being used in connection with federal elections.”

Further, the Court felt that the agency’s regulation “would lead to the exact perception and possibility of corruption Congress sought to stamp out in BCRA, for ‘expenditures made after a wink or nod often will be as useful to the candidate as cash.’” (Quoting FEC v. Colorado Republican Federal Campaign Committee). What worries is that the FEC appears strident in its belief that coordinated communications should not be prohibited beyond a narrow pre-election window. It has promulgated regulations to that effect despite statutory language and Supreme Court language that suggest coordinated communication introduces the risk of actual or apparent quid pro quo corruption.

The Pending Request for an Advisory Opinion

            The FEC’s recalcitrance on the coordination issue may prove problematic for this election cycle. Following Senator Nelson’s appearance in the Nebraska State Democratic Committee’s advertisement, American Crossroads asked the FEC to clarify the legality of coordinated spending. The Advisory Opinion Request asks whether the group may produce advertisements that are “thematically similar” to those produced by candidates. It further asks whether it may use “phrases or slogans” that the candidate or officeholder has previously used. American Crossroads notes that it would not distribute these advertisements with ninety days of an election. The group further asserts that its advertisements would not constitute express advocacy, or the functional equivalent thereof.

Ultimately, the request asks whether an advertisement “fully coordinated with incumbent members of Congress facing re-election in 2012” violates the prohibition on coordinated communication.

Many have weighed in. Stephen Colbert—in his capacity as chair of the super PAC Americans for a Better Tomorrow, Tomorrow—submitted comments manifesting agreement “that fully coordinated expenditures shouldn’t be counted as coordinated expenditures.” The comedian noted that “the candidate would merely be appearing as a paid spokesperson, who, coincidentally, is closely aligned with the candidate that he or she also is.” Satire aside, watchdogs groups like the Campaign Legal Center, Democracy 21, and the Brennan Center for Justice have filed comments reiterating that permitted this coordination would transgress both Supreme Court precedent and existing statutory law. The concern is that an adverse opinion from the FEC could not be corrected in time to ensure that independent expenditure groups—like the super PACs that are permitted to raise capital through unlimited contributions—do not distort the 2012 election cycle. Given the FEC’s approach in Shays, the concern is well founded. The Commission is obliged to issue an advisory opinion—or inform the requester than no opinion can be reached—within sixty days of receipt. American Crossroads filed on October 28th, 2011.

Founded in 1994, the New York-based group operates by sending a team of two educators and a social worker to struggling schools. The team works with each partner school for about three and a half years to address the psychological and behavioral problems distressing its students and, consequently, the teachers responsible for their development. Turnaround trains teachers to identify children distracted by emotional issues, to diffuse aggression among students without resort to traditional disciplinary procedures like detention, and to generate an environment of placidity in the classroom. The organization also requires each school with which it partners to hire a full-time social worker, whom Turnaround trains in accordance with its philosophy. Among the group’s purposes is to make teachers, parents, and administrators more attentive to the ways in which domestic instability, lack of attention, and the breakdown of social support networks make it exceedingly difficult for disadvantaged children to maintain concentration, discipline, and self-control.

Leaving aside the empirical question of just how successful Turnaround for Children has been, there are at least two advantages to the thinking that undergirds the group’s efforts. First, Turnaround aims to make schools’ responses to troubled children more flexible, more subtle, less mechanical. Many young teachers arrive at work without a clear sense of what to do when young children disrupt or disrespect their authority. Overcome by the anxiety of losing control of the classroom, such teachers often resort to punishment, understood in the primary and middle school context as ejection from the classroom. The result is that struggling schools too often come to rely on disciplinary mechanisms like in-school suspension placement, mechanisms that have the effect of simply quarantining disruptive students.

Turnaround refers certain children—often, those whose disruptive behavior its staff deems most likely to influence the conduct of other students—to psychiatric services, but it also aims to introduce students to concentration and mental resilience skills, while at the same time showing teachers subtle mechanisms for swaying the behavior of recalcitrant kids. The Turnaround staff demonstrates, for instance, how teachers can use body language—rather than spoken words, which can sidetrack an entire class—to capture and hold the attention of individual students. The staff also prepares teachers to have potentially embarrassing conversations with students about problems at home. These sorts of interpersonal skills are elementary, but it is by no means uncommon for them to be neglected in education schools.

In a more basic sense, organizations like Turnaround have the effect of calling attention to the psychological factors that often shape the academic performance and social development of American schoolchildren. It is not often, in fact, that one encounters a group that stresses the importance of calm and serenity to student performance, as Turnaround frequently does. The language of education reform in America reflects a fundamental bias in favor of solutions that can be discussed in concrete and tangible terms. The resulting tendency to think about school reform in terms of quantifiable metrics like funding levels and teacher certifications has obscured the fact that America’s education problem is in crucial respects a sociological problem, and that disadvantaged students will not brought to par unless school leaders, parents, and responsible community members think seriously about the psycho-emotional causes of student failure. If nothing else, perhaps Turnaround can serve as a corrective.

Congress passed the Family Smoking Prevention and Tobacco Control Act by large margins in the spring of 2009, and President Obama signed it into law in June of the same year. A major early legislative achievement for the Obama administration, the bill represented a delayed response to the Supreme Court’s ruling in FDA v. Brown and Williamson (2000) that more stringent control of tobacco products by the FDA would require “tobacco-specific” Congressional legislation authorizing it. The 2009 Act placed additional geographic restrictions on tobacco marketing, prohibited the use in advertising of potentially misleading terms such as “light” or “low-tar” to describe cigarettes, and severely restricted tobacco companies’ use of graphics and illustrations in print advertisements which could be accessed by children. The most controversial provision, though—and the primary one at issue in Leon’s ruling—was the requirement that the top half of all cigarette packages be devoted to both a textual warning about smoking and a graphic illustration of smoking’s consequences. At the end of 2010, the FDA initiated notice-and-comment rulemaking on a proposed list of 36 “graphics.” The final FDA rule as promulgated this summer settled on a final group of nine illustrations; among them are a photo of a diseased pair of lungs, a photo of a man breathing cigarette smoke out of a tracheotomy hole in his neck, and a cartoon image of a premature baby in an incubator.

The Smoking Prevention Act raises two related, but distinct, First Amendment issues. The first relates to the government’s power to regulate a corporation’s commercial speech. Commercial speech—defined broadly as communication whose primarily purpose is to propose or promote a market transaction—does receive First Amendment protection, albeit of a less vigorous form than that safeguarding “core” political or personal speech rights. Such speech receives protection not because of its expressive function or because it furthers democratic self-government directly, but primarily because the public has an interest in receiving plentiful and accurate information. Though much-criticized, the Supreme Court’s Central Hudson standard remains the general framework for commercial speech: when regulating speech that is not untruthful and proposes legal activity, the government must demonstrate that its restrictions on the speech are tailored to advance directly a “substantial” government interest. Ten years ago in Lorillard Tobacco Co. v. Reilly, the Supreme Court applied the Central Hudson standard to a Massachusetts effort to regulate tobacco advertising; Justice O’Connor’s decision was notable for finally giving some shape to the “narrow tailoring” requirement. In particular, the Court found that a ban on billboard advertisements within 1000 feet of a school, when applied to dense parts of Boston and other cities, amounted almost to a total ban on that type of advertising—a result which the First Amendment could not countenance, no matter the strength of the government’s interest at stake.

The second key question presented by the Act and subsequent FDA Rule is the extent to which the government can compel tobacco companies to use their own property to engage in anti-tobacco speech. As a general matter, of course, the right to free speech includes a right against being compelled to speak; as the Court announced in its landmark decision in Wooley v. Maynard, “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” In the commercial setting, however, the Court has long acknowledged that the government may compel private speech in some situations in order to further the public’s interest in dissemination of accurate information. In the leading Supreme Court case on the issue, Zauderer v. Office of Disciplinary Counsel, the Court noted that “because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides,” a speaker’s interest “in not providing any particular factual information in his advertising is minimal.” The court thus held that when the government requires disclosure of “purely factual and uncontroversial information” in advertising, such a requirement does not trigger the normally strict scrutiny which would apply to “compelled speech” otherwise. In Ibanez v. Florida Dept. of Business and Professional Regulation, the Court further held that the government must substantiate its claim that a concrete public interest is served by a disclosure requirement—it must show a “harm that is potentially real, not purely hypothetical.”

Unsurprisingly, the major tobacco companies immediately challenged the 2009 Act on First Amendment and other grounds. The first federal court decision on the First Amendment question was issued by the Western District of Kentucky in January 2010, after Congress had acted but before the FDA had implemented its Rule selecting the warning images to be used. In a complex ruling, Judge Joseph McKinley preliminarily upheld the majority of the legislation, finding only portions of the restrictions on color and graphic advertising to be unconstitutional under the “narrow tailoring” prong of Central Hudson. Most importantly, McKinley found that the new warning requirements did not constitute impermissible “compelled speech.” In the first place, the court rejected the tobacco companies’ argument, relying on Ibanez, that the government could not show a real harm since “the public already appreciates the health risks associated with using tobacco products.” Pointing to a series of series of studies from the Surgeon General, Institute of Medicine, and WHO which showed that consumers often ignored existing warnings, the court agreed with the government that public ignorance remained a real problem meriting further disclaimer requirements.

Second, the court rejected the plaintiffs’ argument, based upon 7^th Circuit precedent in Entertainment Software Ass’n v. Blagojevich,that the Act’s requirement that warning graphics take up a whole half of all packages was “unduly burdensome.” In Entertainment Software, the 7^th Circuit in 2006 had held that an Illinois law requiring a large “18+” sticker to be placed on sexually explicit video games was unduly burdensome compelled speech under a strict scrutiny standard because the government had made no demonstration that a smaller, less obtrusive sticker wouldn’t have achieved the same effect. In the Kentucky tobacco decision, however, Judge McKinley rejected the parallel with Entertainment Software, noting that here the government had shown a need for the warnings to be large and highly visible, mostly by pointing to a WHO report recommending that warnings take up at least half of packaging to be effective.

Finally and most importantly, McKinley held that the Act’s warning requirements qualified as “purely factual and uncontroversial information” and thus did not merit strict scrutiny. The government’s central message as delivered through the text warnings—i.e. “smoking is dangerous”—is “objective and has not been controversial for many decades.” Indeed, the first Surgeon General’s warnings on cigarette packages were mandated (albeit in much less obtrusive form) in 1966.

That decision, however, was issued in early 2010, before the FDA had either proposed its roster of 36 possible graphic warning images or selected the final nine. Judge McKinley admitted that complete judgment on the cumulative effect of the government’s eventual choice of images was not yet possible, but he forecast that the visual content of the images would not materially affect his ruling: “The Court does not believe that the addition of a graphic image will alter the substance of such messages, at least as a general rule.”

In his D.C. District ruling this week, Judge Leon disagreed and found the Kentucky District ruling premature. In his appraisal, the impact of the graphic images pushed the disclaimer requirements out of the Zauderer zone reserved for objective, uncontroversial statements and into the realm of compelled speech requiring strict scrutiny. Judge Leon gave great weight to the fact that several of the images were cartoons, and that the photos were obviously manipulated or enhanced; both factors indicated the FDA’s desire not simply to broadcast an objective truth, but to hammer home a stronger message. Moreover, the intentionally graphic—in his view, gratuitously graphic—nature of the images made their implicit message hardly “uncontroversial.” Depictions of premature babies and cadavers, though they undoubtedly canvas a portion of the possible results of smoking, do not have the rigorously rational impact of a statement of statistical risks or possible consequences. In Leon’s judgment, the images reflect a government goal which—while almost certainly legitimate in its own right—is fundamentally broader than the narrow government interest permissible under the Zauderer standard: “It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual  and uncontroversial information.”

Having therefore found that the warning requirements would have to survive strict scrutiny in order to pass constitutional muster, Leon next held that the government failed to demonstrate necessary “narrow tailoring” to achieve a “compelling government interest.” In the first place, Leon found that the government’s asserted purpose in enacting the legislation was muddled; it insisted in briefing the court that its goal was primarily informational (probably in hopes of satisfying the Zauderer standard), while the broader history of the legislation and common sense dictated that the government’s real goal was to reduce smoking for public health reasons. Regardless of what precisely the FDA’s interest was, Leon found that the government had done a poor job of demonstrating any kind of narrow tailoring. It had failed to refute plaintiffs’ claims that other, less blatantly emotive, types of graphics would have achieved the same ends. “It is quite clear that the Rule’s graphic-image requirements in no way suggest the slightest attempt to narrowly tailor the display or presentation of the graphic images Congress mandated.” Since he had thus found the tobacco companies likely to prevail on the merits of their First Amendment claim, and since denials of First Amendment rights are “per se irreparable” harm, Judge Leon enjoined the enforcement of the FDA Rule.

From a public policy perspective, the DC District ruling represents a setback. Congress’s broad goal of increasing public awareness of the hazards of smoking and thereby inducing smokers to quit—even through employment of shocking imagery, if necessary—is widely shared, at least outside of the Carolinas. At the very least, the ruling stalls implementation of the program and could very well lead to a Supreme Court decision which would mandate scrapping the Rule entirely and starting over. The White House’s response, not surprisingly, was bitterly negative: “Tobacco companies shouldn’t be standing in the way of common-sense measures that will help prevent children from smoking. We are confident big tobacco’s attempt to stop these warnings from going forward will ultimately fail.”

There are grounds for the administration’s implicit challenge to the legal objectivity of Judge Leon’s ruling. A conservative appointed to the federal bench by George W. Bush, Leon has a history of ruling on behalf of tobacco defendants; just last year, he ruled against the FDA’s efforts to regulate “e-cigarettes” under a stricter statutory standard. Nor is the ruling immune from criticism on more formal grounds. The court’s conclusion that the warning requirements failed to satisfy strict scrutiny is less than overwhelmingly convincing, especially given courts’ long history of accepting the legitimacy and urgency of curbing the public health dangers of smoking as a government interest. In particular, the argument that other forms of graphical communication of an anti-smoking message such as a numerical chart would satisfy a properly formulated federal interest. If the United States in future cases is able to make a stronger case that these graphic warnings—as opposed to less strident, less emotive imagery—are necessary to make a real dent in cigarette usage, it is not difficult to imagine legal victories even under strict scrutiny.

Where the D.C. District ruling has value, whatever its other deficiencies, is in reaffirming that compelled speech as a regulatory strategy should be approached with caution. Leon was probably right that shoehorning these warning labels into the Zauderer category of “factual and uncontroversial” information is an impermissible stretch. It is one thing to bar tobacco companies from making misleading claims, or to severely curtail their advertising efforts, especially towards children—provisions of the 2009 Act aiming to do so have thus far rightly survived legal challenge. It is another thing entirely, however, to force even the most disfavored of companies to devote large portions of their own product to visceral, graphic “billboards” directly contravening their own commercial purposes.

In its 1986 decision in Posadas de Puerto Rico Associates v. Tourism Co., the Supreme Court appeared to embrace the dictum of Justice Rehnquist that “the greater includes the lesser”; that is, that the government’s power to regulate or even ban a type of behavior should necessarily entail a “lesser” power to regulate speech relating to that behavior. For instance, if a state is entitled to ban casino gambling entirely, it should be entitled to enact restrictions on commercial speech relating to casino gambling that would otherwise unconstitutionally infringe on speech rights. The Court has since abandoned this approach, and rightly so. If, as most of us believe, the tobacco industry represents a uniquely pernicious threat to national health, a regulatory regime substantially similar to the 2009 Act and subsequent FDA Rule should survive scrutiny as measures necessary to achieve the government’s compelling interest in fighting that threat. In doing so, however, the government and courts should confront the undoubted constitutional significance of such forced speech; strict scrutiny is an appropriate vehicle to ensure that the uniqueness and gravity of the threat from tobacco is commensurate with the extraordinary nature of the speech restrictions placed on tobacco companies.

Early in oral arguments, the Court grappled with whether or not Jones could be decided on the narrow ground that police had committed a trespass. In fact, the Court returned to that question later, asking counsel for Respondent Antoine Jones whether 1) affixing a GPS device to a license plate, rather than the undercarriage of the car, would effect a trespass; and 2) whether affixing an inert device would effect a Fourth Amendment violation. Justice Alito pressed his peers to consider the broader question. He noted that this particular trespass would have nominal effect if not for the character of its consequences. That is, if not for the information gathering process it enabled.

To advance the government’s argument, Deputy Solicitor General Michael Dreeben relied heavily on United States v. Knotts. Dreeben argued that the warrantless use of GPS was squarely within a range of practices already recognized as constitutional. In Knotts, the Court announced that: “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” On Tuesday, however, the Court appeared uneasy with the government’s reliance on Knotts and suggested many grounds for distinguishing the case. The police in Knotts, for example, had surveilled their suspect on a single journey. Further, the beeper that police attached to the suspect’s car still required them to remain within a delimited proximity of the suspect’s vehicle. Visual contact was unnecessary, but police could not—as Chief Justice Roberts noted—merely sit in headquarters. The government responded to the Chief’s assertion that GPS technology is “dramatically different” from the beepers used in Knotts by resting on outcomes. GPS “doesn’t expose anything . . . that isn’t already exposed to public view for anyone who want[s] to watch.”

Factual distinctions aside, Justice Scalia provided theoretical grounds for departing from Knotts.  After expressing frustration with precedent established by United States v. Katz, which injected privacy into the Fourth Amendment by holding that a Fourth Amendment violation occurs whenever a reasonable expectation of privacy is violated, Justice Scalia said,

It is one thing to add that privacy concept to the Fourth Amendment as it originally existed and it is quite something else to use that concept to narrow the Fourth Amendment from what it originally meant.

Despite his reluctance to recognize the government’s doctrinal argument, Justice Scalia did question whether this issue was one for the legislatures. Given the line-drawing problems that surfaced when the Court tried to establish the difference between monitoring a single journey, and monitoring of a more systematic character, the political approach could have some traction. Justice Scalia captured the line-drawing problem well by analogizing to a simple mathematical axiom. If monitoring for one day presents no constitutional problem, then monitoring for thirty presents no constitutional problem, because 100 x 0 = 0. That assessment differs markedly from one that Chief Justice Roberts drew out of the Respondent’s brief, that one day’s monitoring is a tile, but a month’s is a mosaic. Of course Justice Scalia’s political approach may have other benefits. Technological change occurs rapidly, and trusting legislators to regulate would likely allow for more flexible oversight.

Administrability concerns aside, the Court expressed real concern with the “1984 scenario.”  Justice Breyer asserted that systematic, institutionalized surveillance might be unreasonable, even if there was no individual violation of a right to privacy. He said,

If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States. . . . And no one, at least very rarely, sends human beings to follow people 24 hours a day. That occasionally happens. But with the machines, you can.

Justice Sotomayor added that the government seemed to be advocating dragnet surveillance, surveillance similar to the type that the Framers hoped to prohibit by forbidding general warrants.

Ultimately, genuine uncertainty pervaded the Court. Justices seemed hesitant to resolve the case on narrow grounds, but skeptical that a principled line could be drawn. Because the case implicates other forms of surveillance—like closed circuit television, which is used in Britain—it has attracted lots of attention. The Jones case will likely turn on whether institutionalized surveillance is unreasonable, whether it violates a threshold expectation of privacy. If it does, the Justices may adopt the government’s alternative argument: that police need reasonable suspicion to monitor without consent. The Justices may also simply require a warrant.

More here and here, oral arguments available here.

Justices’ skepticism was two-pronged.  First, several justices questioned Guerriero’s assertion that existing rules of evidence were insufficient to screen for unreliable evidence.  “What is the difference between what you are asking for and what already exists in the law?” Justice Breyer asked.  Under Federal Rule of Evidence 403, Breyer noted, a judge may exclude evidence that she thinks is unduly prejudicial or misleading.  Justice Ginsburg pointed to other safeguards: “You can ask the judge to tell the jury: ‘Be careful; eyewitness testimony is often unreliable.’  You can point that out in cross-examination.”  The necessity for a new rule, these justices posited, was dubious.

Other justices criticized Guerriero’s proposed rule as excessively narrow.  “What is magic about suggestiveness as opposed to all of the other matters that could cause eyewitness identification to be wrong?” Justice Scalia pondered.  Guerriero’s rule would exclude a witness’s identification only when given under circumstances suggestive of a defendant’ guilt.  If the witness’s identification was unreliable for some other reason – because the witness was standing far away from the crime scene such that she could not see the culprit clearly – the evidence would be admissible.

Justice Scalia also questioned why Guerriero’s rule would apply only to eyewitness testimony given under suggestive circumstances.  “Let’s say . . . that the killer had left a message on the . . . phone and the police in some manner create suggestiveness that causes a witness to identify that as the voice of the killer.  You really think that we would say, well, this is not eyewitness testimony; eyewitness testimony creates a special risk?”  Guerriero suggested that his rule followed from Court precedent, in which the justices have said that eyewitness testimony is special.  “[W]e don’t mean it,” Scalia quipped.

In many ways, Guerriero’s argument proved too much.  If the Constitution requires the exclusion of unreliable evidence, the criminal justice system would be turned on its head.  A host of unreliable evidence is admitted at every trial, yet we as a society are comfortable with it, because we trust jurors’ ability to gauge the dependability of what is presented to them.  Once we begin questioning our faith in juries – even if that skepticism is merited – the foundation of the justice system begins to crumble.  The justices seem to be willing to preserve the myth of juror competence – at least in the near term – lest the system fall apart.

To read a transcript of the oral arguments, click here.  To read the parties’ briefs, click here.

What is receiving less attention than the partisanship is the drastically restricted realm of options states have to try to create independent systems for redistricting.  Arizona did exactly what would be expected to insulate the process from the legislature.  Just as federal judges have life tenure and can only be removed by impeachment, committee members in Arizona had fixed terms and, in theory, can only be removed for misconduct at the governor’s behest with the approval of the state legislature.  Seeing the process now corrupted by an ideologically aligned governor and legislature, what can the voters in Arizona to make the process more independent and more immune from partisan influence?

What they can’t do is abandon congressional elections using single-member districts in favor of some other electoral rule that would obviate the need for drawing district lines at all.  By law, though only since 1967, states are required to establish a number of districts equal to the number of representatives to which they are entitled and to elect one representative from each of those districts.  2 U.S.C. 2c.  The legislation was a response to the Supreme Court’s decisions in Baker v. Carr, Wesberry v. Sanders, and Reynolds v. Sims, requiring states to adhere to the one person, one vote principle.  There was a fear that states would use multi-member districts as a remedial method, threatening incumbent members of Congress.  Additionally, multi-member districts with at-large voting rules could be used to dilute minority voting strength and prevent the election of minority preferred candidates.  House Judiciary Committee Hearing, at 55.

There is no constitutional, or even historical, reason that single-member districts should be the only method available to states to determine the membership of their congressional delegations.  ”It should be apparent, however, that there is no principle inherent in our constitutional system, or even in the history of the Nation’s electoral practices, that makes single-member districts the ‘proper’ mechanism for electing representatives to governmental bodies or for giving ‘undiluted’ effect to the votes of a numerical minority.”  Holder v. Hall, 512 U.S. 874, 897 (1994) (Thomas, J., concurring).  Congress first took up clarifying the constitutional mandate for the election of Representatives in 1842 with the Apportionment Act of June 25th, 1842.  In that act, Congress declared for the first time that representatives must be elected from districts “formed of contiguous territory, no one district electing more than one representative,” or in other words, contiguous single-member districts.  Congress quickly changed course, however, and redistricting legislation in 1850 did not contain the single-member district requirement.  The 1967 Act was the next congressional action on the issue.

Though the 1967 legislation remains on the books to this day, there have been multiple attempts to diversify the methods by which states can choose to elect their House delegations. Cynthia McKinney was the only Congresswoman from the state of Georgia and the only black Congresswoman from the Deep South states in the 104^th and 105^th Congresses. Though she was initially elected in 1994 from a majority-minority district, after a redrawing of the districts she was able to win reelection in 1996 from a white-majority district. McKinney introduced the Voters’ Choice Act (HR 3068). The bill sought to overturn the 1967 act to allow states to choose to use multi-seat districts in congressional elections provided that the electoral method chosen met certain requirements. The electoral method chosen would have had to guarantee that a majority of votes could always elect a majority of seats, and that any group representing a third of the electorate would be able to elect a proportional share of the available seats.  The 12^th District of North Carolina, represented by Congressman Melvin Watt, has been the subject of a series of legal challenges, having been described as a “serpentine” district stretching along I-85 using “white corridors” to connect concentrated black populations from Winston-Salem in the North to Charlotte in the South. Watt’s HR 1173 was a simpler version of Congresswoman McKinney’s bill, eliminating the strict requirements for majority rule and proportionality, and giving essentially free reign to states to choose their electoral rules within the limits of the Voting Rights Act of 1965. Though the bill had the support of Clinton’s Department of Justice, the 1967 legislation remains the law of the land, eliminating any choice for states to try to escape the inherent partisanship of districted elections.

 The drawing of district lines under a single-member districting system forces legislatures to choose between two principles both of which most voters would consider essential to a properly functioning democracy: representation and competition. If the districts are drawn such that each has an ideologically divided constituency, the result will be a high level of electoral competition and a lack of predictable success for one or the other major political party. At the same time, these types of districts leave half of the constituency arguably without representation since those voters supported the losing candidate and are likely to support the incumbent’s challenger in future elections.  The Republican representatives from Arizona objected to the map being considered by the independent commission largely because the map made their districts more competitive.

One solution that should be available for a state like Arizona that wants to select its congressional delegation free from partisan influence is to remove redistricting as an element of that selection progress.  Though multi-member districts with at-large voting rules have been used in the past to discriminate against racial minorities, the Voting Rights Act of 1965 now protects minorities from systems that would have a dilutive effect on their voting power.  In the modern era, multi-member districts with some form of proportional voting rules would allow states to add and subtract members with each subsequent census without having to substantially redraw district lines.  States that choose to elect their entire congressional delegation in one multi-member district, such as states that have 2-5 Representatives, would be entirely free from the need to redraw district lines.   This type of districting would obviate the need to draw majority-minority districts, and could more effectively match racial and political minority voting preferences to actual representation.  Larger district sizes could also help to achieve real enfranchisement for white liberals in Republican dominated suburbs, non-geographically defined white women, dispersed Latino or African-American communities, or any other politically cohesive minority group.

Ending the trade-offs between competitive elections and representative districts should be the goal of electoral reformers.  Instead, Congress has locked states into the only electoral system that forces these trade-offs.  If the people of Arizona or any other state truly want to end the bitter partisanship engendered by redistricting, whether by state legislatures or independent commissions, they should seek to end the need for redistricting altogether.  If Congress freed states from the single-member district requirement, enacted to serve incumbents and protect minority voters from anachronistic discrimination, the result could be congressional elections that are both competitive and result in a representative legislature.

Image Credit: AZ Capitol Times

The most egregious attempted use of a municipal curfew to disperse an Occupy protest in the last several weeks occurred in Nashville, Tennessee. There, Republican Governor Bill Haslam decided to crack down after “tolerating” the demonstrations around the Tennessee State House for three weeks. The governor promulgated a series of brand-new regulations—including a restrictive curfew—which led to the temporary abandonment of the Occupy campsite and more than 50 arrests. Even by the low standards governing such transparently political hatchet-jobbery, Tennessee’s efforts were sloppy. In granting the ACLU’s request for a restraining order against the new curfew, the U.S. District court noted that the government had violated the state’s own Administrative Procedure Act as well having trampled on the protesters’ First Amendment rights.

In attempting to quell statehouse protests in Albany, New York, the city government has not been nearly as clumsy, but it has acted in a similarly pretextual manner. The city government there recently announced that by “oral tradition,” the protest restrictions which apply to the statehouse grounds themselves apply to the adjacent park hosting Albany’s “Cuomoville” protester camp as well. As of now, the government has not yet enforced this unwritten curfew and attempted to evict the protesters.

Protesters obviously face more serious obstacles in challenging legitimate curfews or land-use restrictions—those which are longstanding and ostensibly content-neutral. In all major cities hosting Occupy protests, city officials have at their disposal ordinances which limit the availability of public spaces such as parks and restrict camping or overnight congregation. Some cities have not yet cracked down on the protesters, but others—including Oakland, Portland, and Austin—have begun to enforce their regulations against Occupy encampments and arrested dozens of protesters.

When subjected to the usual free-speech analysis, such regulations—assuming they are content-neutral on their face—are likely to pass muster as applied to Occupy protests. Though areas like city or state parks are quintessentially public forums, governments may subject both pure speech and “expressive conduct” to reasonable “time, place, and manner” restrictions, provided that they are narrowly tailored and provide alternate channels for communication. The issue of protest encampments and free speech has come before the Supreme Court before, and the results are not encouraging. In Clark v. Community for Creative Non-Violence (1984) , the Court dealt with the application of a prohibition against sleeping on the National Mall as applied to a group which had set up tents to raise awareness of homelessness. The Court found first that the regulation was tailored to the government’s interest in protecting, and second that the protesters were left with plentiful alternate ways to spread their message even if denied permission to sleep on the Mall.

As with its other “expressive conduct” cases, the Court in Clark considered the activity as worthy of First Amendment protection only to the extent that it was expressive; in other words, the protesters’ act of public assembly had Constitutional value only instrumentally, as a means of furthering the individual speech of the activists. According to this approach, the “Freedom of Assembly” invoked by protesters becomes legally irrelevant, a rhetorical garnish on a First Amendment claim that entirely boils down to speech rights. As long as governments can show an absence of content-discrimination (which will be a tall order in some cases), they will have strong arguments that the significant government interest in keeping avenues for local commerce and transit clear justifies clearing away long-term protester encampments and imposing time-of-day restrictions. Moreover, they can argue that protesters retain plentiful opportunities to spread their message even if the size or timeframe of their assemblies are curtailed.

The current, weak conception of the freedom of assembly—subordinating it almost entirely to freedom of speech—is not a historical inevitability, however. The First Amendment itself names speech and assembly as discrete rights, and the two were considered as such in the Supreme Court’s limited jurisprudence on the subject until relatively recently. For instance, in its 1937 decision in De Jonge v. Oregon incorporating the freedom of assembly into the 14^th Amendment, the Court found that assembly—as well as “speech”—was an indispensable guarantor of democracy: it was vital “to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.” As John Inazu noted in a recent article on the “Forgotten Freedom of Assembly,” however, the Court in the late 20^th Century began to conflate the two rights to the extent that they became indistinguishable in its jurisprudence, a process that cumulated with cases like Perry Education Association v. Perry Local Educators’ Association and Clark. On one hand, the Court’s modern public forum analysis values ad hoc assembly only as a conduit for speech; on the other hand, the Court’s “freedom of association” jurisprudence has made the rights of more permanent groupings dependent on the extent to which their association with each other has expressive content. Assembly on its own terms—the right to gather together in public—has become dormant.

As a considerable amount of recent scholarship has pointed out, something important may have been lost in relegating the status of freedom of assembly to a rhetorical afterthought. First, the act of assembly itself creates a value for congregants that exists apart from any political expression that takes place. Sharing space with others, feeling the strength of numbers, and experiencing solidarity all contribute to a kind of “secular communion” which derives its power not simply from any shared ideology (if any) but from shared existence. In Inazu’s words, assembly “may reflect a way of living and system of beliefs that cannot be captured by a text or its utterance at any one event.” Even more to the point, assembly has historically played a unique role in democratic self-government—the preservation of which is often held to lie at the heart of the First Amendment’s purpose. In a March article in the Yale Law Journal, Ashutosh Bhagwat argued that speech, assembly, and association should be reconceptualized as independent and coequal First Amendment protections. Treating assembly as a handmaiden to “speech” shortchanges the indisputable historical fact that the cause of democracy has been nudged forward as often by popular action as by talk:

“Voting and civilized discussion among individuals are of course important elements of democratic government, but they are hardly the sum total of the matter….In the typical modern protest or assembly utilizing the public forum, speeches are no doubt made and signs are waved, but they are hardly the main point of the exercise. After all, most of the speeches are inaudible and the signs often illegible. The point, rather, is the assembly itself. The fact of a large public gathering forms a sense of solidarity, helps to influence public opinion, and sends a message to political officials. Assembly, in short, is a form of petition and a form of associational speech, quite aside from what is said during the assembly.” (120 Yale L.J. 978, 996)

Adopting a thicker conception of First Amendment freedom of assembly would not, of course, help protesters avoid entirely the very real dilemma faced by even the freest societies in balancing competing interests. Even with a stronger right to assembly, neither Occupy Wall Street nor any other movement has the right to cripple local businesses or hold cities hostage. However, courts granting greater recognition to the independent right of assembly might gauge the reasonableness of government restrictions in a new light; in particular, the question of whether “alternate ample channels” exist might well have a different answer. Courts might well ask not only whether restrictions like curfews will leave protesters other opportunities to deliver their message, but also whether the restrictions deny them their meaningful right to gather together in public without undue harassment. In smaller cities and towns, especially, excessively restrictive curfews on use of centrally-located parks or squares could amount to an effective total ban on large assembly. The issue would become not whether overnight encampment significantly furthered protesters’ expression, but whether it furthered their interest in assembly—which it almost certainly does. Moreover, a stronger vision of the freedom of assembly might spur reconsideration of the maze of bureaucratic hurdles in modern cities which have greatly increased the difficulty of securing permission to march or assemble. To the extent that permit regimes turn ordinary citizens, in the words of Tabatha Abu El-Haj, into “supplicants in the democratic process,” they place very real strain on a fundamental right.

Occupy Wall Street and its sister protests well illustrate the independent value of assembly. Whatever their excesses or ideological inconsistencies, they have clearly tapped into a widely felt discontent whose strength is manifested not so much by verbal communication as by the act of gathering together and providing a visible demonstration of solidarity and demographic strength. A stronger conception of the freedom of assembly would capture, better than courts’ current doctrine, the unique benefits which such a movement can bring to the process of American self-government.

The Online Voting Debate

Online voting promises policy gains. Voters overseas and in the military would enjoy more access to the “polls,” as would those who work multiple jobs, or lack motility. Allowing citizens to cast ballots also reduces the effort required to vote and eliminates a perennial problem—long lines at polling places. In those respects, online balloting would diminish costs and so increase voter turnout in populations that are only disaffected enough to forego a trip to the polls. These developments would have a disparate impact on disparate demographics.  Still, efficiency gains might be used to ensure that voters without personal computers are given the resources to reach a polling place or a library.

These familiar arguments elicit familiar responses. Most notably, many argue that the “cost” of voting is desirable. Cost ensures that the most informed cast the most ballots. But tabling that assertion—and its assumption that voting rights should be contingent on information, to which access is variable—allows for focus on feasibility.

Jefferson’s paper responds to an intuitive argument about whether online voting is feasible. The argument is that online voting should mimic the mechanisms used to facilitate online commerce. According to Jefferson, there are two logistical obstacles to using the online commerce model in the electoral context: 1) the online commerce model is not secure; and, 2) the logistics of online voting require a structurally distinct network.

Jefferson forcefully advances his first point by referencing ubiquitous fraud and its impact. Online merchants lose billions when third parties capture consumer information. Information can be captured through different mechanisms, like malware. Because malware infects a computer, operating internally, precautions such as secure connections present no obstacle. Notably, the costs associated with such fraud are socialized across the consumer base. One in a thousand transactions may be fraudulent, but resulting losses can be mitigated through other means, including higher prices. Such spreading is not feasible in the electoral context, where results turn on slight margins. Jefferson’s practical considerations can also be supplemented with theoretical varnish: if votes have intrinsic (non-instrumental) value, can efficiency gains and increased participation outweigh the cost of disregarding a voter’s preference? If electoral systems are animated by outcomes instead of civic expression, are the results devalued? Would voters become so disaffected by the process that turnout would remain low?

Even if voters are willing to tolerate the risks posed by fraud, Jefferson establishes that logistical problems leave online voting beyond reach. The logistical problems are numerous. First, the most effective means of addressing potential fraud or manipulation would offset the value of online voting. That means—requiring mail-in paper ballots, which would be subject to random audit—would impose the very costs that online voting is meant to eliminate. A second issue is the discoverability of fraud. Fraud in the commercial setting is ultimately identifiable by means including bookkeeping, receipts, and others. Those procedures are inapplicable in the electoral context, where ballots are secret. To that end, Jefferson says: “a voting transaction is irreversible.”

Secrecy also underlies other logistical issues. An online voting system would have to address basic election security concerns. How would eligibility requirements be enforced? How would proxy-voting—when, for example, a spouse votes for both members of the family—be prevented? And what about double voting? The expense of ensuring that online voters do not cast ballots at the polls or by absentee mechanisms might be significant.  Jefferson aptly aggregates the prevailing concern, providing an appropriate way to encapsulate the obstacles to online voting:

As of now there is no reliable infrastructure in place to verify over the Internet the actual identity of a person sitting at a PC or holding a mobile device.

 

Commentators have pointed to a number of issues with the amendment that are likely to cause problems for its anti-choice advocates, in addition to the obvious problems it poses for the pro-choice community.  In a New York Times op-ed on Monday, Harvard Law Professor I. Glenn Cohen and Mississippi Law Professor Jonathan Will pointed out two of the biggest problems.  First, the language of the amendment is significantly ambiguous and it is unclear what constitutes “fertilization” such that the amendment may ban in vitro fertilization (IVF) and some kinds of birth control, in addition to banning abortion.  Second, the professors point out that it remains unclear whether the amendment is self-executing or not.  If it is self-executing, it will have the immediate effect of changing the meaning of thousands of state statutes and regulations that include “person” in their language.  If it is not self-executing, then the Mississippi state legislature would have to pass a law implementing the amendment.

If interpreted a certain way, what appears on its face as a measure to just ban abortion, could in fact reach much further into the private decisions women make concerning their own health and their choice to become pregnant at all.  Medical professional associations like the Mississippi State Medical Association and the Mississippi Nurses Association have come out against the amendment because they fear the ambiguous language could mean common life-saving procedures often used for saving a mother’s life would be banned.  In fact, the spokesperson for Personhood USA, one of the organizations working to garner support for the measure, indicated in a recent interview that the amendment did bar doctors from performing certain procedures to aid a woman who’s pregnancy was detrimental to her health.  He also acknowledged that IVF and certain forms of birth control, including the morning after pill and possibly IUDs, would be banned under the amendment.  Some opponents of the amendment have said it could even criminalize miscarriages or stillbirths.  The claim might seem outrageous if not for the fact that Mississippi, and other states, have actually begun prosecuting women who have had miscarriages and stillbirths.  The proposed amendment is likely to only add more legitimacy to such prosecutions.

Regardless of the looming threat of an extreme application of the amendment, the ambiguous amendment likely won’t help the anti-choice cause anyway, as Professors Cohen and Will point out in their op-ed.  There’s no doubt litigation will ensue if Mississippi voters adopt the amendment.  (The ACLU and Planned Parenthood lost in the lawsuit they brought to prevent it from getting on the ballot in the first place).  In fact, anti-choice advocates likely want litigation to follow in the hope that it will reach the Supreme Court and the Court will use the opportunity to overturn its holding in Roe v. Wade protecting a woman’s right to choose.  However, the Court would likely never reach the question.  Whenever the Court must interpret an ambiguous law, if there is any reasonable interpretation that allows the Court to avoid addressing a constitutional question, the court will adopt that interpretation.  (Brandeis’s concurrence in Ashwander v. Tennessee Valley Authority provides a good articulation of how the Court approaches constitutional issues in the cases it decides).  The approach is taken, in part, based on the notion that the promulgating body could not have intended to create an unconstitutional law.  If Mississippi adopts the proposed amendment and a court were to read it in line with that which proponents are advocating, it could raise serious supremacy clause issues since Roe v. Wade, Planned Parenthood v. Casey and their progeny have established a federal constitutional right to choose.

Under its constitutional avoidance doctrine, therefore, the Court would likely interpret the Mississippi amendment so it never has to reach any constitutional question – thus never considering whether it should overturn Roe v. Wade like many of the amendment’s proponents hope.  One way to do so is to interpret the amendment as non-self-executing.  A non-self-executing amendment does not automatically change the meaning of every reference to “person” in Mississippi laws and thus would not, upon adoption, immediately ban all abortions, some forms of birth control and the like.  Instead, the Mississippi legislature would have to pass a law implementing the amendment, and if no such legislation exists the Court would be done with the inquiry.  The Court could also find a way to read the language to narrow its reach so it doesn’t affect federal abortion rights, but that may prove more difficult.  Under either scenario, the amendment, as currently worded, leaves significant doubt as to it’s effectiveness as a tool for overturning Roe v. Wade.

Of course, questions of the amendment’s constitutionality and effect on women’s rights would become moot should Mississippi voters decide on Tuesday to reject the amendment and instead decide to respect a woman’s right to make choices about her own body.  Here’s to hoping they decide to do the latter.

Earlier this year, the Pennsbury School Board contracted with the firm School Media, Inc. to sell advertising that will be placed on walls and lockers in our school interiors.  This initiative was an outcome of the work of the Board Revenue Development Committee.  Ads will be screened . . . to include only advertising that is deemed appropriate for the school environment.  Over $400,000 in new revenues are anticipated from this initiative.

The Philadelphia Inquirer reports that the ads—the district plans to install over 200—will be located on the walls, floors, lockers, and cafeteria tables of Pennsbury’s 16 primary, middle, and high schools.  What injects subtlety into Pennsbury’s story is the fact that the ads are not allowed to endorse products directly; rather, they must be connected with themes like health, safety, and learning.  Some of the ads have a didactic message, endorsing reading and discouraging the playing of video games.  Others, however, are less wholesome.  According to the Inquirer, Pennsbury will install adverts for the Post-it brand, as well as for Dick’s, the unfortunately named sporting goods chain.  The Post-it ads will promote “organization skills.”  Dick’s will be informing youngsters about the dangers of concussions.

Pennsbury’s plan appears to be a desperate reaction to financial turmoil, and it exemplifies a nationwide shift towards public schools’ reliance on advertising revenues.  The willingness of school districts to turn to advertising is not new, and Pennsbury’s initiative is by no means the most striking.  (In what may be a particularly tragicomic instance of the American Kafkaesque, a teacher in a cash-strapped Idaho high school struck a deal with a local pizza shop whereby every worksheet he would distribute to his students would feature the words: “Molto’s Pizza 14” 1 Topping Just $5.00.”  One can take comfort in the fact that $5.00 seems like a very reasonable price to pay for fourteen inches of pepperoni pie.)

The most obvious problem with placing ads in schools is that the practice will augment the already remarkable influence that corporations have on how young people understand their place in the world.  One needn’t read the literature on consumer behavior to see that, in the long term, routine exposure to advertising can mold the very foundations of a child’s thinking, transforming his understanding of what is and is not possible, and tailoring his conception of the meaning of a life well lived.  There’s also the equally palpable concern that, if even primary schools make a habit of turning to advertising, it’s not clear whether any public institution can be expected to resist the practice.

There are different ways to register the fact that Pennsbury’s ads are allowed to endorse products only indirectly.  One can contend that the ads’ obliqueness is salutary, that their allusions to health and learning will negate any deleterious effects.  But one can also take the view that there is something especially insidious about the fact that firms will be able to embed products and ideas in seemingly innocuous posters.  Wouldn’t it be more fair, the argument might go, if firms had to put all their cards on the table and promote their merchandise honestly, rather than being allowed to regale children with smoke and mirrors?  Of course, there is also the position—one hears it more frequently these days—that the real villains in places like Pennsbury are the school administrators who, having mismanaged their schools into financial oblivion, are now trying to auction their way out of insolvency.     

Political leanings will surely influence reactions to the story of Pennsbury.  But the underlying questions will remain, and we will need to ask ourselves whether we are willing to accept a culture in which (for whatever reason) private firms peddle their wares in public schools.  Part of the human dimension of Pennsbury’s story stems from the fact that the school district’s officials have been open about the unattractiveness of the advertising program.  Said one member of the Pennsbury Board of School Directors: “We say, ‘Show us another way, give us the funding some other way.’  We need the money desperately.”  Is this the voice of economic desolation?

In 2008, Joffre Ullon called police to report that his wife had seen a man breaking into cars outside their Nashua, New Hampshire apartment complex.  When police arrived at the scene, they discovered Barion Perry carrying two car stereo amplifiers across the complex’s parking lot.  Perry told police that he had found the amplifiers on the ground and was simply moving them out of the way.

While Perry was talking to police, Ullon and his wife were discussing what they had seen with another Nashua officer.  Ullon’s wife stated that the man she had seen breaking into the cars was “tall” and “African-American.” When pressed for details, Ullon’s wife looked out the window, pointed to Perry, and identified him as the culprit.  At the time of the identification, Perry was standing next to a Nashua police officer.

At trial, Perry moved to exclude the identification, claiming that the evidence’s admission would violate his due process rights.  Perry asserted that his proximity to police at the time of the identification colored the witness’s memory by suggesting that he was a person of interest in the police’s investigation.  The trial court disagreed.  Without ruling on whether the circumstances surrounding Perry’s ID were suggestive of guilt, the court asserted that Perry could not mount a due process claim because the suggestive circumstances were not “intentionally orchestrated by police.”  A defendant may challenge a witness’s ID only if its reliability is called into question by “improper state action.”  Here, the circumstances of which Perry complained were a matter of happenstance, meriting the identification’s admission.

The issue before the Supreme Court is whether eyewitness identifications must be excluded whenever the identification was made under circumstances that make the ID unreliable.  As it stands, exclusion is mandated only when police themselves are responsible for the suggestive circumstances.

The question turns in large part on the ill the exclusionary rule is designed to cure.  Perry argues that the Court should be concerned with reliability.  “It is the likelihood of misidentification which violates the defendant’s right to due process,” Perry declares.  In contrast, the State claims that the exclusion of unreliable eyewitness testimony is merited only to the extent that it deters police misconduct.  Arguing on behalf of New Hampshire, the United States asserts, “Police involvement is a necessary prerequisite for a due process analysis into the reliability of an identification.”  Only after a court has determined that police misconduct created circumstances “unnecessarily suggestive” of a defendant’s guilt need the court engage in an inquiry into the reliability of the resulting identification.

New Hampshire’s rule is the easier one to administer.  Assessing the reliability of an ID is a tricky task.  Indeed, Perry does not propose a standard for answering “how suggestive is too suggestive?”  By saving the reliability inquiry until after a court has assessed police misconduct, judges can screen out many complicated due process claims.

Adopting such a rule, however, leaves the Court in an awkward position.  In 1967, the Court conceded: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”  Modern psychology has only confirmed the Court’s intuition.  Study after study has substantiated the inaccuracy of eyewitness testimony, such that tighter rules must be enacted before it can be admitted at criminal trials.  Perry presents an opportunity for relatively modest reformation: when a defendant can point to concrete facts undermining the reliability of an ID, the prosecution must turn to alternative evidence in order to prove its case.  At least in this narrow class of cases, administrability must give way to accuracy.

I sat in the crowded courtroom Thursday morning and watched the prosecution, represented by Assistant United States Attorney Aloke Chakravarty, and J.W. Carney Jr., the attorney for Mr. Mehanna deliver their opening statements to the jury. While opening statements and the information conveyed in them are not evidence in the case, as federal district court Judge O’Toole explained to the jury as the trial commenced, they allow each side to prepare the jury for what they think the evidence will eventually show. Opening statements give the prosecution and the defense the opportunity to provide the jury with the big picture, to give them a lens through which to view the rest of the evidence as it develops slowly over the long trial. Judge O’Toole referred to the statements as the picture on the front of a jigsaw puzzle, and then the jury is given all the pieces, and finally decides which picture is formed and which pieces simply don’t fit.

The two attorneys painted very different pictures for the jury. AUSA Chakravarti began his statement recalling Osama bin Laden’s call to arms, what Chakravarty called a State of the Uma (Muslim world) address directing Muslims all over the world to jihad against Americans. Jihad, a term now familiar to most Americans but much less so when bin Laden delivered his message prior to the attacks on 9/11, was defined by Chakravarty as the fighting and killing of Americans. Bin Laden’s call resonated with Tarek Mehanna, said the prosecutor, and led him to engage in three courses of action that are now the subject of the prosecution. First, Mehanna entered into a secret agreement, a conspiracy, with a few others to travel to Yemen, receive terrorist training, and fight the United States in Iraq. He sought to provide himself and his co-conspirators as personnel support to Al Qaeda and other terrorist organizations killing American soldiers. Second, when he was unable to get the training in Yemen, he returned home and began providing services to Al Qaeda by translating videos and printed materials from Arabic into English. He published and distributed these materials on the internet, labeled as productions of Al Qaeda. Chakravarti held up a copy of Mehanna’s translation of “39 Ways to Serve and Participate in Jihad.” Finally, Mehanna lied to FBI investigators on multiple occasions, seeking to protect his conspiracy and his support for terrorism from government interference.

Chakravarty went on at length, though in a somewhat disjointed presentation that at times lacked chronological or topical coherence, about what evidence the government would provide to prove its case. The government, he said, would provide evidence of what Mehanna was reading and watching, to demonstrate the intent of his actions and the knowledge that he was benefiting Al Qaeda. Chakravarty at this point displayed a photo of the defendant and some others and Ground Zero; Mehanna’s ear to ear smile, he said, was because he was celebrating the attack on September 11th. He quoted one of Mehanna writings: “On that morning you became our hero, on the day you turned the Twin Towers into Ground Zero.” Chakravarty cautioned the jury that there was no crime for being un-American, but if they looked at the facts they would see that Mehanna supported terrorism through his actions.

The prosecutor then outlined the direct evidence that would be presented, photos and documents copied from Mehanna’s bedroom and his computer, all obtained pursuant to a covert court-ordered search while the Mehanna family was in Egypt. Chakravarti called the computer a “treasure trove, a veritable library of jihad.” The computer also contained six months worth of stored chats and instant messages, that Chakravarty claimed would help demonstrate Mehanna’s intent to aid Al Qaeda. The prosecution would also present emails, intercepted pursuant to a court order, and conversations recorded from a wiretap of Mehanna’s phone, during which he had coded discussions about his concern over the possibility of being investigated.

The prosecution would also introduce the documents and videos Mehanna translated and distributed as a moderator on the Al’Tibion Productions web forum, which Chakravarty called a “virtual conference room for jihadists.” The government at this point showed clips from one of the videos allegedly translated by Mehanna. The video had been edited with sound and graphics, labeled as an Al’Tibion production. It showed Osama bin Laden, at times speaking directly to the camera with subtitles in English, and at times edited into background scenes designed to glorify the message being spoken. Mehanna, according to the prosecutor, viewed himself as part of the media department of Al Qaeda. Al Qaeda, he said, has an actual media department, called Sahab, meaning cloud. Mehanna was at one point contacted by the “cloud people,” and personally solicited to translate the words of Ayman Al Zawahiri, at the time the second in command of Al Qaeda.

Finally, the prosecution said the defendant’s own words would show his conspiracy, his intent to aid Al Qaeda, and his lies to investigators. A bug placed in a location at which he was expected to be recorded Mehanna talking about a phone call from a friend in Somalia trying to recruit him to come train as a jihadist, a phone call he told FBI agents never happened. A recording device on a cooperating witness, one of Mehanna’s fellow travelers to Yemen, also acknowledged the call. Witnesses would testify that Mehanna had been part of discussions considering attacks on American shopping malls and Hanscomb Air Force Base. This case, concluded Chakravarty, is not about what Mehanna thought, but about what he tried to do.

Carney, Mehanna’s attorney, asked the jury to assemble a very different picture from the pieces of evidence that would be introduced at trial. He assured the jury that it was okay to feel afraid hearing the prosecution’s version of the charges, that he himself had felt that way, but cautioned them to keep an open mind about what the evidence would show and what the law and the Constitution allow. Mehanna’s parents, Carney began, came to this country from Egypt to be free to practice their religion and speak their minds about their beliefs without fear. Tarek Mehanna, a natural born American citizen, had a normal American upbringing. Photos were displayed of Mehanna sitting on Santa’s lap, playing baseball, and posing like a rock star with an electric guitar. Mehanna decided to go to college and study pharmacy, in which he eventually received his PhD. He goes to mosque weekly, and afterward plays basketball with his friends, and then goes out for pizza or Outback Steakhouse.

Mehanna wanted to learn about his Muslim heritage. He translated classical works from Arabic into English. He studied the history of repression of Muslims around the world: Afghanistan, Chechnya, Bosnia. On 9/11, he was shocked and confused, and could not understand why Muslims would attack the United States. He understood the U.S. decision to go to war in Afghanistan, the source of the attack on 9/11, but he did not understand or agree with the decision to go to war in another Muslim country, Iraq. You can hold that view in the United States, said Carney, and not be punished for it. Mehanna believed people in Iraq were right to do whatever needed to be done to get the United States out of their country, just as many people in the United States once thought the Vietnamese people had the same right.

Mehanna was obsessed with classical Islamic texts and Islamic history. He was known by all in his community as a scholar. He went to Yemen not to pursue terrorist training, but to study Arabic in its state sponsored schools. The defense would present the leading American expert on Yemen, who would testify that it’s economic weakness and isolation make its version of Arabic free from the infiltration of other influences, and that it is therefore known all over the world as the source for the most pure Arabic. While the other travelers with Mehanna sought out terrorist training camps, the defense attorney said, Mehanna toured three schools.

When Mehanna returned to the United States he was more outspoken in his beliefs about the United States’ role in Iraq, but he advocated his views independently of any connection to Al Qaeda, protected, he thought, by the Constitution. His very outspokenness, claimed the defense, proved that Mehanna was not part of a secretive conspiracy. Mehanna respected Osama bin Laden because he gave up his personal wealth to aid the fight for Muslim freedom in Afghanistan, an effort supported and praised by Americans from Charlie Wilson to Ronald Reagan. He watched videos, read books, and translated texts because he wanted to understand other points of view, and believed others should have access to those points of view as well. If it is legal to read the texts Mehanna possessed, and to think the thoughts contained within them, the government shouldn’t be afraid of their translation.

Carney concluded by pointing out the facts he believed the government had conveniently neglected to mention. Yes, he said, Mehanna was contacted by Al Qaeda to provide translation, but he didn’t do it. Yes, Mehanna was involved in conversations where others advocated attacks on Americans, but he responded by rejecting those ideas as ridiculous. Yes, he was a member and a moderator of an online forum where jihad was discussed, but he was kicked off of the site for being too moderate. Mehanna’s attorney asked the jury to ask themselves whether the government’s representation of the facts was a fair representation of the truth. The government, he said, will bring forth a series of witnesses who each did something to aid terrorism, and they are all going to talk about how Tarek talked. All of those witnesses have immunity. The Supreme Court has said that it is legal to think the same ideas as Al Qaeda, even to be a member of Al Qaeda, as long as one’s advocacy is independent of Al Qaeda. Americans, Carney concluded, can speak our views, even if it upsets the federal government; that is what makes the United States great, strong, and free.

United States v. Tarek Mehanna continued Friday with the opening of the prosecution’s case.

Kellner was paid on an hourly basis.  Target gave him a 30-minute unpaid meal period during each 8.5-hour shift.  In accordance with the FLSA, an unpaid meal period must be at least 30 minutes long and must not be interrupted by work duties, otherwise the employee must be compensated for the time spent on break.  When Kellner worked a night or weekend shift, the salaried manager on duty at the store had always left by the time Kellner needed to take his meal break.  When the manager left, Kellner became responsible for handling tasks and interruptions normally attended to by the manager.  Thus, he was required to leave his walkie-talkie on during these meal breaks, and “constantly” had to attend to issues such as customer complaints, cash register problems, and accidents occurring at the store.  As a result, Kellner could not “enjoy an uninterrupted 30 minute meal period when it came time for him to take his meal break.”

Target has a policy of prohibiting employees from working during meal breaks or the time in which they are otherwise “off the clock,” but according to the plaintiff’s complaint:

 “the time clock at the store is rigged to prevent employees . . . who [have] clocked out for a meal break but [are] then prematurely interrupted to return to work, from clocking in again until the 30-minute meal period has expired.  The plaintiff would go to human resources and ask about correcting his time on a punch-correction form, but the person in the human resources department would always tell him Target ‘couldn’t pay overtime,’ and that he should just try to take another ‘meal period’ later in his shift.  But because no manager was there to cover his duties on the nights and weekends that he worked, the plaintiff could not enjoy an uninterrupted meal break later during his shift either.”

No information is yet available regarding Target’s response, so the extent to which they will contest the facts that Kellner has set forth in his complaint is not known.  If Kellner can convince the district court that he was fired because of his comments regarding overtime, a recent Supreme Court case strongly suggests that his claim would be successful.  This past March, the Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corp. that anti-retaliation protection under the FLSA encompasses an oral complaint to an employer.  Kasten was a large victory for employee advocates; in that case the defense had argued—and on this issue the circuits were split—that FLSA protections only apply when a complaint is formally filed with a court or government agency.

If the court accepts Kellner’s characterization of the facts, his retaliation claim is very strong.  The language in Section 216(b) of the Act, which addresses remedies for retaliation claims, is open-ended: “any employer who violates the [anti-retaliation] provisions . . . of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of [these provisions].”  Some circuits (such as the Seventh) have interpreted this expansively, awarding punitive damages and holding that employees can even be compensated for the associated emotional distress, while other circuits (such as the Eleventh) have more narrowly granted only the lost wages and/or reinstatement.  Alabama is part of the Eleventh Circuit.

The plaintiff also alleges that he is entitled to compensation in the form of back wages for the uncompensated meal breaks that were interrupted.  The FLSA provides almost all non-salaried employees certain wage and hour protections, and Kellner appears to qualify for them (certain executive, administrative, and professional employees are exempted from these protections, but Kellner probably does not fall within any of these exceptions).  Twenty-two states have laws mandating that meal breaks be given to employees who work six hour shifts or longer, but Alabama is not one of them.  Thus, Target was not required by law to give any meal break to Kellner. However, the FLSA mandates that if an employer gives employees an unpaid break—which Target did here—that break must be at least thirty minutes long; a shorter break must be paid.

This is part of a more general and very prevalent problem for employers of hourly rate employees: they struggle to make sure that their employees do not work more hours than scheduled.  Employers must be actively monitor and record their employees’ hours in order to avoid paying these employees overtime, and more generally in order to comply with state and federal wage and hour laws.  If an employee attends to a work-related issue for just one minute during his or her thirty minute meal break, and thus the break ends up being twenty-nine minutes long, that employee must be compensated for all of the time: the entire twenty-nine minutes of break as well as the one minute of work.  When this happens, it is doubly bad for employers: not only has the employer often not budgeted to pay the employee for an extra thirty minutes, but for employees already working full-time, those thirty minutes must be paid at overtime rates.

A twist to the FLSA is that regardless of whether Kellner and Target decide that they want to settle, a court must now be involved in resolving the dispute.  For all actions brought by employees under the FLSA, any settlement must be reviewed by a court for fairness before being approved.  The parties involved must also notify the Secretary of Labor, who under the FLSA has the right to bring an independent lawsuit for the same offense.

Finally, this complaint may add controversy to Target’s very public fight to prevent unionization that has developed over the past year.  Target has aggressively campaigned against unionization, arguing that union representation would be an unnecessary and counterproductive intrusion into Target’s relationship with its employees.  Target maintains that their relationship with employees is very strong and that they provide an outstanding workplace environment.  Kellner’s complaint provides evidence to the contrary, and such attention could help motivate Target employees who have experienced similar treatment by the company to come forward and assert their statutory right to receive overtime.  Such actions would also provide momentum to the union supporters’ assertions that individual employees at Target would be better off with union support, to ensure that their wage and hour rights are being protected in the strongest possible manner.

Washington State permits its voters to challenge state laws by referendum. 4% of voters must sign a petition to secure that referendum. Signatories must provide their name and address, and the state verifies that information when it receives a petition. Names and addresses later become discoverable under the state’s public information law.  For that reason, the Doe plaintiffs sought injunctive relief. They argued that the state disclosure law was unconstitutional on facial grounds, and as applied to them.  The district court granted relief on plaintiffs’ facial challenge: that the disclosure imposed an unconstitutional burden on plaintiffs First Amendment rights. As a result, the lower court never reached plaintiffs’ as applied challenge. After the Ninth Circuit reversed on appeal, the Supreme Court granted cert.

Writing for an 8-1 Majority, Justice Roberts affirmed the Ninth Circuit and rejected the facial challenge. Questioning whether disclosure chills speech, and noting that disclosure combats fraud, increases transparency, and ensures democratic accountability, Justice Roberts leaned on the Court’s landmark campaign finance case, Buckley v. Valeo. In a powerful concurrence, Justice Scalia asserted that:

“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

That rhetoric presaged the Court’s doubt about the plaintiffs’ potential to prevail on their as applied challenge. In that challenge, the plaintiffs asserted that they were and would be subjected to harassment because of their advocacy. Plaintiffs’ were targeting repeal of domestic partner rights for same-sex couples. Though he did not decide the issue, Justice Scalia reminded that “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self- governance.” He, along with Justices Stevens, Ginsberg, Breyer and Sotomayor, would have rejected the as applied claim. Regardless, the Court remanded to the district court for further proceedings.

The district court succinctly summarized the legal framework within which it would evaluated the as applied challenge. It noted that in Buckley the Supreme Court recognized:

“The State’s interest in preserving the integrity of the electoral process is undoubtedly important. States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally.”

To evaluate the disclosure law’s constitutionality, then, the district court asked whether there was “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.” That standard is derived from a long line of Supreme Court cases that includes NAACP v. Alabama, Brown v. Socialist Workers, as well as Buckley, Citizens United, and Doe. Those cases, the district court said, also establish that:

as-applied challenges have been successfully raised only by minor parties, . . . having small constituencies and promoting historically unpopular and almost universally-rejected ideas.

To finishing teeing up its assessment of the facts in Doe, the court drew on Justice Sotomayor’s Doe concurrence to assert that threats, harassment, or reprisals need to be pervasive, and need to impact those bringing the as applied challenge.

Turning to the facts, the district court was unsatisfied that the Doe plaintiffs had satisfied the requisites for securing an exemption from disclosure. The court doubted whether plaintiffs represented a sufficiently marginalized view to meet the “historically unpopular and almost universally-rejected” standard. It also dismissed the relevance of anecdotal evidence from other state campaigns to repeal marriage-equality or rights-parity legislation. Having done so, it evaluated Doe’s evidence of harassment, threats, and reprisals, concluding that Doe’s evidence did “not rise to the level or amount of uncontroverted evidence” necessary to sustain as-applied challenges.

With Doe decided, attention will turn to California. There, proponents of proposition 8 have initiated litigation to suppress their identities. Some believe that the litigation is unlikely to succeed after the Doe (on remand) ruling. Whatever the outcome in California, Doe v. Reed on remand has and will incite argument. Has the government inappropriately cabined anonymous speech? If disclosure does impose harm on an individual, do existing remedies effectively address those harms? Can further government action, like strong employment discrimination laws or systematic law enforcement, cabin harms?

While it is easy to dismiss these candidates’ calls for reform as political pandering, the proposals nonetheless evoke many Americans’ longstanding discomfort with an appointed judiciary, within which power is exercised by individuals who remain unaccountable to voters.  Indeed, concern about judges’ lack of accountability reached a fever pitch in the 19^th century, causing a majority of states to move from appointed to elected state judiciaries and/or reducing the terms of office for state and local judges.  The impetus for reform stemmed from citizens’ belief that subjecting judges to public scrutiny would force adjudicators to write opinions that tracked the law, not their politics.  As Foster Hooper proclaimed at the 1853 Massachusetts constitutional convention, “[I]f you provide that [judges] shall come before the people for reelection, they will take care that their opinions reflect justice and right, because they cannot stand upon any other basis.”*  Hooper and others believed that voters desired a fair and independent judiciary and would therefore vote out of office judges who failed to live up to those standards.

In actuality, the move from appointed to elected judiciaries caused judges to track public opinion – not the law.  Over the last 50 years, judicial elections have been criticized as an instrument undermining judicial impartiality.  “[I]f judges are subjected to regular election,” declared Justice Sandra Day O’Connor, “they are likely to feel that they have at least some stake in the outcome of every publicized case.”  Statistical studies suggest that elected judges are loath to assume unpopular positions in controversial cases, particularly death penalty appeals.  As former California Supreme Court Justice Otto Kaus lamented, “There’s no way a judge is going to be able to ignore the political consequences of certain decisions, especially if he or she has to make them near election time.”

By advocating for a more accountable judiciary, the Republican presidential candidates are bucking a trend favoring increased judicial independence – a trend propagated by conservative jurists like Justice O’Connor.  The effect of these reforms, however, may work against the policy goals these candidates seek to further.  As NYU professor Barry Friedman points out in the Post, eviscerating the power of the federal judiciary would increase the influence of state courts, which tend to be more liberal than their federal counterparts.  Professor Friedman’s research presents a conundrum.  Republican candidates appear to advocating for judicial reform as a means to further a conservative political agenda.  Faced with the prospect that “the People” are not so conservative after all, the future Republican nominee may quiet the calls for an accountable bench.

*  Official Report of the Debates and Proceedings in the State Convention, Assembled May 4^th, 1853 to Revise and Amend the Constitution of the Commonwealth of Massachusetts (Boston: 1853), 700.

The case comes from the D.C. Circuit Court of Appeals’ reversal of the defendant’s conviction of “conspiracy to distribute five kilograms or more of cocaine and 50 or more grams of cocaine base, in violation of 21 U.S.C. 841 and 21 U.S.C. 846.” Brief for the United States.  The evidence leading to the defendant’s conviction was discovered after the police installed a GPS tracking device on the defendant’s wife’s car, and his movements were tracked for over a month. Although police had originally obtained a warrant, it was valid only in the District of Columbia, and furthermore, had expired the day before the police installed the device in Maryland. As a result, the defendant argues, the installation of the GPS tracking device resulted in an unconstitutional warrantless search.

The government argues that the defendant can have no expectation of privacy in his movements from one place to another on public streets because they are in plain view, and that therefore the tracking did not constitute a search under the Fourth Amendment. The defendant, on the other hand, argues that although there may not be an expectation of privacy in his movements from one place to another, there is an expectation of privacy in the aggregate of his movements, and that therefore the warrantless GPS tracking was an unlawful search. In a 2001 case, Kyllo v. United States, the court ruled that a warrant was required in order to use thermal-imaging devices to locate marijuana-growing because the use of such technology constituted a search under the Fourth Amendment because “the government violate[d] a subjective expectation of privacy that society recognizes as reasonable.” However, in that case, the court emphasized that the home occupies a special place in our jurisprudence, and that there is an expectation of privacy in the home’s interior that society has long recognized as reasonable.  The Court again dealt with technological advances in police equipment in United States v. Knotts, in which the Court held that a tracking beacon installed in chemical container that allowed police to tail the defendant’s car for hundreds of miles was not a search under the Fourth Amendment.

The D.C. Circuit Court of Appeals agreed with the defendant’s argument, distinguishing this case from Knotts on the basis that there is a sizeable difference between tailing a person for a few hundred miles and putting a person under twenty-four hour surveillance. The court held that there is indeed an expectation of privacy in the aggregate of one’s movements that current technology has enabled the police to monitor with relative ease.

As George Washington University law professor Jeffrey Rosen noted in an interview:

[W]hat [the Court is] now confronted pretty squarely in this case is the question of whether we really should have expectation of privacy in the face of proliferating cutting edge technology or not. That has less to do with the reality on the ground, how many devices there are out there, than to what the justices think people should expect in free society. Is there some degree of anonymity we need in order to live spontaneous and free lives? That’s what the court’s going to have to engage.

It is clear that this case presents not only a novel question regarding GPS technology specifically, but more broadly, a question about the extent to which the government may use rapidly-developing technology that has the potential to seriously limit a person’s reasonable expectation of privacy without a warrant.  If the Court affirms the Circuit Court’s reversal, Catherine Crump, a staff attorney with the American Civil Liberties Union, believes the decision will represent another step towards protecting privacy “in the face of technological advances.” A reversal, however, has equally important consequences, as such an outcome could greatly broaden the government’s authority to monitor citizens’ lives through the use of technology. The potential for the curtailment of privacy posed by such warrantless tracking could be mitigated by a bill, the Geolocational Privacy and Surveillance Act (“GPS Act”), that Sens. Ron Wyden (D-Ore.) and Mark Kirk (R-Ill.) recently advocated in a press conference that would require law enforcement officials to obtain a warrant before using GPS technology to track suspects. Whether such legislation is politically feasible has yet to be seen, but it does indicate the growing concern that technological advances have begun to infringe on citizens’ privacy rights.

The French organization, Copwatch Nord Paris I.D.F., represents a relatively recent international outgrowth of a grassroots movement that began in the United States more than two decades ago. The first group was founded in Berkeley, California, in 1990, and shares with other loosely affiliated groups across the country the broad goal of curbing police excess by recording and publicizing instances of brutality or constitutional violations. Portland Copwatch’s activism after the police shooting of Kendra James in 2003 helped lead to the identification of the officer involved—and brought with it accusations that the organization had recklessly exposed the officer to danger of reprisals. More recently, a Copwatch group in Phoenix made an effort to discover evidence of racially discriminatory traffic stops in the wake of Arizona’s S.B. 1070 immigration bill, provoking accusations by Maricopa County’s Sheriff Joe Arpaio that Copwatch was engaged in manipulative selective editing. There, as in several cases throughout the country, copwatch activism has helped produce at least one concrete result—the spread of on-board cameras with which police produce their own video records, both to increase transparency and to provide ammunition to rebut outside accusations of misconduct.

In the United States, a consensus has emerged that observers are within their rights to make video recordings of the police as they make arrests and otherwise go about their business. As the recent case of Glik v. Cunniffe demonstrates, individuals’ “clearly established” First Amendment rights outweigh all but the most pressing government interests—and the police interest in avoiding public  scrutiny is not only not pressing, but hardly legitimate at all. Though some controversy remains in U.S. jurisdictions over non-consensual audio recordings, the rights of Copwatch organizations to record and publicize videos of police misconduct have been settled.

The French discussion, of course, takes place in the absence of a First Amendment or any similar conception of speech as a central, preeminent right. Copwatch Nord Paris IDF engages in many of the same activities as its sister American organizations, with the stated goal of “monitoring those who oppress us.” In addition to posting videos of police on duty, however, the French site also includes identifying information and pictures from Facebook and other publicly available social networking sites—including photos of police drinking and otherwise misbehaving when off-duty. Claude Gueant, the French Interior Minister, lodged an impassioned complaint against the site, alleging in particular that the collection of identifying information of officers into a comprehensive database “harms the personnel of the interior ministry and jeopardizes their and their families’ safety.” At least one officer testified that he had received a threatening mail message because of the site, but evidence of actual harm to Parisian police was lacking. Nonetheless, the French court agreed with the government and police union, and it ordered service providers to block the Copwatch site entirely because they asserted that selective blocking would be too difficult.

At first glance, the rationale for a decision so overtly favoring police privacy interests over transparency and citizens’ speech rights seems deficient—and this has certainly been the reaction of French free speech advocates. The spokesman of a French internet-rights organization described the ruling as evidence of “an obvious will by the French government to control and censor citizens’ new online public sphere.” In terms of its practical effects, too, the ruling seems characteristic of a troubling trend towards uninhibited police authority. A 2009 Amnesty report noted that “Allegations of beatings, racial abuse, excessive force and even unlawful killings by French police are rarely investigated effectively and those responsible are seldom brought to justice.”  In 2010, a French teenager was sentenced to a three-month prison term for the offense of “public outrage” for insulting the national gendarmerie on his Facebook page after he was pulled over in a traffic stop.

Seen primarily through the familiar American lens as a question of police overreach, a decision blocking a “Copwatch” effort seems merely a further step towards law enforcement impunity. The decision becomes somewhat more comprehensible, however, when viewed in light of the characteristically continental European emphasis on privacy and “dignity” rights. The differing treatment of citizens’ rights vis a vis the police mirrors the transatlantic distinction between liberty and dignity as ordering principles. Whereas American “liberty” embodies a hostility towards the organs of state power—and American rights are conceptualized primarily as safeguards against central government abuse—the primary menace to a European citizens’ dignity interest is not always the government, but the intrusiveness of “society.” As Yale Professor James Whitman noted, “The core continental privacy rights are rights to one’s image, name, and reputation….They are all rights to control your public image—rights to guarantee that people see you the way you want to be seen.” It is not hard to see that behind the French police union’s rage over the supposed security threats posed by copwatch lies anxiety about the indignity and shame of such widespread exposure of misconduct.

The centrality of dignity to the European conception of individual rights has produced a number of distinctions with American traditions, many of which have their admirers among critics of the American tendencies towards First Amendment “absolutism.” Among these are the prevalence of civility norms, restrictions on hate speech, and significantly stronger protections against libel and defamation. Strong arguments can be made that the marginal gain in liberty of expression created by allowing free rein to Holocaust deniers or scandalmongers is more than offset by the corresponding abasement of societal discourse brought about by such a wide-open environment. The Copwatch decision, though, is a vivid reminder that a society’s concern for dignity rights, especially the dignity rights of authority figures, can have liberty consequences that are far less trivial.

As states pass tough immigration laws like Alabama’s HB 56 and Arizona’s SB 1070, a critical question emerges: to what extent should states and localities be able to enforce federal immigration law?  States that have passed provisions such as requiring local law enforcement to make a “reasonable attempt” to determine a stopped driver’s citizenship status or making it unlawful to conceal an undocumented immigrant argue that they are simply filling in gaps where the federal government has failed to enforce the law.  States also argue that their laws are reflections of existing federal law—for example, their laws mirror ones such as 8 U.S.C. § 1324(a)(1), where it’s an offense to conceal or harbor an undocumented resident, or 8 U.S.C. § 1324A(a), which prohibits employers from knowingly hiring an undocumented immigrant.

On the other hand, opponents and the Justice Department argue that the federal government maintains the exclusive authority to determine a person’s immigration status and to regulate immigration.  Under the Supremacy Clause, the Constitution and federal law preempt state law; Article I, Section 8 grants Congress the power to “to establish a uniform rule of naturalization … throughout the United States.”  And the Supreme Court has held in various cases that only the federal government has the authority to regulate immigration.

Courts will soon have to decide whether these current state provisions are encroaching upon the federal government’s domain.  And outside the court system, we desperately need comprehensive immigration reform to create a practical and fair way to address our over 12-million undocumented residents.  Although comprehensive reform needs much more than enforcement mechanisms to fix the system (including policies that address labor/employment conditions, smuggling, tax payments, pathways to higher education, borders, or routes to residency/citizenship, to name a few), local enforcement has become a highly contested issue that is inconsistently applied from place to place.  Thus, immigration reform will also need to address the extent of state and local involvement in enforcing federal immigration law.

Looking at what states are currently doing, local enforcement first appears to be expensive.  As states start creating their own enforcement laws, a lot of litigation will emerge.  It will be costly and time intensive to litigate different states’ laws to decide whether they have exceeded federal power.  The laws themselves are also costly—when local law enforcement takes on the additional burden of immigration enforcement, it has less money and fewer resources for pressing law enforcement needs.  In one Arizona county, debt increased by $1.3 million with three months of immigration enforcement.  The laws can also undermine local law enforcement’s ability to protect our communities.  Police may have lower clearance rates or higher response times with added responsibilities.  Fear of law enforcement can cause non-citizens and citizens alike to stop reporting crimes to the police.  And local enforcement can also decrease community cooperation or heighten racial tensions, creating a general environment of distrust.

States can also push constitutional limits with local enforcement.  Before the injunction, HB 56’s education provision (which requires schools to inquire about a student’s legal status) kept many students away from school, and families experienced a greater obstacle to educational accessibility.  The provision tests the Supreme Court’s ruling in Plyler v. Doe and subsequent decisions holding that undocumented immigrants have constitutional rights and protections.  In Plyler, the Court struck down a Texas statue that allowed school districts to deny enrollment to undocumented immigrants, as it violated equal protection.

This doesn’t mean that state and local governments shouldn’t have any power over immigration enforcement.  With 12 million out-of-status residents, perhaps the federal government can’t tackle immigration enforcement without states’ help and perhaps states are better equipped for this task.  But if that is the case, legislators should actually look at the data to see what is happening at the community level, assess what types of local immigration participation truly work, and provide more guidelines to the states.  It’s important that comprehensive immigration reform addresses this issue of state participation to promote sensible and fair immigration policies throughout the country.

The global community of national governments seems to be waking up to this idea too.  On Sunday, the newly-formed United Nations entity, UN Women, announced that it was accepting applications for grants, with a focus on projects seeking to empower women in Arab countries transitioning to democracy.  An effort in line with the organization’s focus on advancing women’s leadership and participation in politics.  Secretary of State Hillary Clinton has also put women’s rights in the forefront of United States foreign policy, using the United States’ position on the world stage to advocate and advance women’s rights and public participation as a necessary component of prosperity and stability in emerging democracies.

However, there are some indicators that governments are talking about women’s empowerment more than they are acting to advance it.  While there was a lot of excitement around the creation of UN Women, it may have been a step forward in name only.  The combination of four other UN entities into the new organization was viewed as a signal that UN members were ready and willing to take a larger and more impactful role in promoting gender equality and women’s rights.  The desire to strengthen global efforts was further exemplified by the former Chilean President, Michelle Bachelet’s, appointment as Executive Director, a known and strong advocate for women’s empowerment.  However, the organization has already run into funding problems, only having contributions of $80 million by the end of June 2011, to support what the UN Secretary-General said will need $500 million in just the start-up phase, with a strategic plan of requiring $1.2 billion over the next two years.  Without proper funding, what is UN Women other than a simple sum of the four formerly separate, and at time ineffective, organizations that make it up?  Such a result is the opposite of what it was meant to be.

That governments committed to advancing women’s involvement in reform and democracy consistently face challenges to actually advancing that involvement is evidenced by episodes like that which occurred in the United States House of Representatives earlier this month.  While Secretary Clinton has committed United States support to UN Women and similar efforts, Congress advanced a bill proposing funding cuts to another UN entity, the UN Population Fund, that supports family planning services in developing countries, access to which fosters women’s empowerment.  Further, when Secretary Clinton requested $8 billion to give to UN Women itself, a number already well below what many expected the United States to pledge, Congress only gave her $6 million.

Perhaps the problem is that we’re looking in the wrong place for action.  Governments just can’t seem to get their act together, either individually or through intergovernmental organizations like the UN.  Instead, maybe we should look to the grassroots for real action.  This year, the Nobel Prize Committee awarded the Nobel Peace Prize to three women’s rights activists for their work in Liberia and Yemen – one, the first democratically elected female leader of Liberia, another a peace activist in Liberia who campaigns for women’s rights and against rape, and the third, a pro-democracy campaigner in Yemen.  All three women have been integral in empowering women and ensuring that women have a seat at the table.  Their stories are inspiring and provide a model for what local action can be.  Of course talk is still important, and the more talk high-profile figures, like Clinton and Bachelet, do around the world, the more women begin to think about change in their own community.  However, it might just be that the women of the world’s hope for gaining the rights and participatory opportunities they are due through real action, action beyond the talk, lies not with governments but with themselves and their neighbors.  It’s only where real action occurs that women start to be empowered and involved in a way that strengthens a country’s democracy, making it responsive to the needs of all its population, not just the men.

For nearly the last ten years, Brookfield Central and Brookfield East high schools have held their high school graduation ceremonies in the sanctuary of Elmbrook Church, a non-denominational evangelical Christian Church.  As one might expect, the church grounds are filled with religious symbols.  At the front of the sanctuary, in the backdrop of the ceremony, hangs a 20-foot cross, which the church refused to cover up.  Additionally, during the ceremony, members of the congregation manned booths in the lobby containing religious brochures, many of which were directed at young adults.  The ceremony itself, however, contained no religious elements.

Parents in the school district raised concerns over the venue almost immediately after the practice began.  In 2009, a group of non-Christian parents filed suit in federal district court in Wisconsin, seeking damages and an injunction against using the church for school events.  The district court dismissed the case, entitled Doe v. Elmbrook School District.  On appeal, a divided court agreed that a ceremony that contained religious symbols but was devoid of any coerced religious participation did not constitute excessive entanglement with religion in violation of the First Amendment.

The Seventh Circuit’s holding is utterly inconsistent with the Supreme Court’s 1992 ruling in Lee v. Weisman, a seminal case about religion in public schools.  Lee concerned a non-sectarian invocation and benediction delivered by a rabbi during a public middle school’s graduation ceremony.  In a 5-4 decision, the court ruled that the prayer constituted “a state-sponsored and state-directed religious exercise in a public school.”  Writing for the majority, Justice Kennedy recognized that students faced pressure to stand as a group and remain silent during the prayer, and that, while attendance at one’s graduation ceremony is voluntary, “absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years.”  Hosting graduation ceremonies in religious institutions creates the same harms that Supreme Court recognized in Lee.  The students who brought the case felt “uncomfortable, upset, offended, unwelcome and/or angry” due to the ceremony’s setting.  Students were faced with the choice between entering an inherently religious setting, where they would undoubtedly encounter prominent religious symbols with which they were uncomfortable, or not attending their commencement.  As the court noted in Lee, “It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.”

Unfortunately, the Seventh Circuit is not the only court to erode the Court’s holding in Lee over the last twenty years.  Five months after the Supreme Court handed down its decision, the Fifth Circuit Court of Appeals upheld a Texas school district’s policy of allowing public high school students, selected by the student body, to deliver non-sectarian, non-proselytizing invocations at their graduation ceremonies.

Should the students of Elmbrook School District decide to petition the Supreme Court to hear the case, there is a genuine possibility that the Court will decide to grant certiorari.  While many school districts around the county hold graduation ceremonies in religious institutions, most districts agree to change venues upon threat of a lawsuit.  For example, after the ACLU filed a lawsuit to enjoin a New Jersey high school from continuing to hold graduation ceremonies in a Baptist Church, the school district quickly agreed to hold the ceremony elsewhere in subsequent years.  Consequently, few lawsuits make it to trial, preventing the development of a circuit split.  The only other court to take up the issue, a federal district court in Connecticut, granted a preliminary injunction last year prohibiting a Connecticut high school from conducting graduation ceremonies at a Christian church, finding that there was “a substantial likelihood” that the ceremonies would violate the Establishment Clause, but has yet to rule on whether a permanent injunction should be issued.  Even without a circuit split, there may be four justices on the Supreme Court who are willing to grant certiorari to reiterate the importance of Lee and put the issue to rest.

Given the current makeup of the Court, Elmbrook provides the opportunity for a rare victory for civil libertarians, should it make its way to the Supreme Court.  Only three of the current justices—Justices Kennedy, Scalia, and Thomas—participated in the Lee decision.  Justice Kennedy wrote the majority opinion, while Justice Scalia wrote a scathing dissent, joined by Justice Thomas.  Chief Justice Roberts and Justice Alito would be almost certain to join with Justices Scalia and Thomas in upholding the constitutionality of hosting graduation ceremonies in religious institutions.  As Deputy Solicitor General, John Roberts filed an amicus brief in Lee, in which he wrote that the graduation ceremony was not a violation of the Establishment Clause.  As a judge on the Third Circuit, Justice Alito dissented in a case that declared unconstitutional a policy that allowed the high school’s senior class to vote on whether to have a student-led prayer at their graduation.  On the other side, Justices Breyer and Ginsburg, who voted to strike down a student-led invocation during pregame ceremonies at high school football games, would likely be joined in striking down Elmbrook School District’s practice by Justices Kagan and Sotomayor, who reiterated the importance of the Establishment Clause in a dissenting opinion in Arizona Christian School Tuition Organization v. Winn.  Since Justice Kennedy wrote the majority opinion in Lee, one would expect him to reach the same outcome in Elmbrook, resulting in a 5-4 decision to reverse the Seventh Circuit.  As usual, as Kennedy goes, goes the Court.

There are more serious First Amendment questions, however, arising from legislation aimed at curbing less egregiously “criminal” forms of cyberbullying by minors, especially state laws which direct public schools to monitor and interdict online bullying done outside the school environment by students.

States’ motives for using school authorities as a means to exert greater control over cyberbullying are fully understandable. Public schools are uniquely positioned among government organs to influence the behavior of children. More importantly, the phenomenon has been most pronounced and alarming among middle school and high school-aged teenagers—a new and more virulent outlet for traditional forms of bullying fueled by the added communicative power and anonymity afforded by the internet. Several of the laws have appeared as direct responses to recent cyberbullying cases. Roughly a year after Rutgers student Tyler Clementi’s suicide, New Jersey passed a comprehensive “Anti-Bullying Bill of Rights” aimed at making schools more responsive to the problem. Massachusetts introduced new legislation in the wake of the highly publicized Phoebe Prince case in 2010. Most recently, the proposed new laws in New York have arisen in response to the death of Buffalo high school student Jamey Rodemeyer.

The new Connecticut law, passed this June, can serve as an example of the trend towards using schools to bring into effect anti-cyberbullying initiatives—and the possible perils of taking this approach too far. In the first place, the statute widened the definition of “bullying,” which can include any act which, among other things, causes “physical or emotional damage” to a student, “creates a hostile environment at school” for a student, or “substantially disturbs the education process.”  Schools are now directed to respond to bullying—including and especially online bullying—no matter where it physically takes place and no matter when, even beyond the school year.

The first and most obvious concern with this kind of law is a general one: that its expansive definition will lead schools to monitor student speech above and beyond the proper reach of school authorities or other government actors. This is one of the approaches taken in her criticism of the law by Connecticut ACLU director Sandra Staub, who noted that mandating schools to respond to something as broadly defined as “emotional harm” will surely lead to problems with fairness in enforcement.

Enforcement problems aside, however, the biggest open question about cyberbullying laws that focus on schools is whether they cross the poorly defined line between students’ speech rights in school and their rights (and those of their parents) “outside of school.” The Connecticut law, like many other state statutes, is transparently tailored to bring itself within the letter of the standard on school speech outlined by the Supreme Court more than 40 years ago in Tinker v. Des Moines Independent Community School District (1969). In Tinker, still treated by courts as the foundational case on the issue, the Court  announced that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but nonetheless held that schools’ restrictions of student speech may be acceptable to the extent necessary to “avoid material and substantial interference with schoolwork or discipline.”

In subsequent years, the Court has not always limited its analysis to the physical sphere of the “schoolhouse gates.” In the “Bong Hits 4 Jesus” case (Morse v. Frederick), the court upheld the right of a school to discipline a student for displaying a drug-related banner at a school-sponsored, off-campus event, but did so on the apparently limited grounds that the drug message posed a “special danger to the physical safety of students.” In the limited number of lower court decisions that have tried to address online bullying in the context of school speech, however, the courts have primarily stuck with the Tinker “substantial interference” standard and its distinction between on- and off-campus speech.

The problem with applying Tinker to cyberbullying, of course, is that the internet frustrates any attempt to draw geographical lines around the types of speech that can create classroom disturbances. In common sense terms, internet activity conducted in a student’s home seems to be “off-campus” speech—and it is clear under the traditional standard that a school could not punish a student for a private comment that took place entirely outside the school setting. Understandably, however, courts have exerted efforts to find a nexus with the physical territory of the school; a Pennsylvania district court found that a school could discipline a student for creating a website at home (called “teacher sux”) since it was accessed and printed off by other students within the school. The Second Circuit went even further and found that substantial disruption could be created whenever the student should have foreseen internet speech could be accessed on school grounds. (Wisniewski v. Bd. of Education). When taken to its extreme, this logic could lead to the conclusion that schools can monitor all student internet speech which might be accessed on-campus and if so would cause a disturbance to classroom discipline—rendering Tinker’s supposed geographic distinction between school and non-school speech meaningless.

Of course, administrators’ discretion and the narrower substantive focus of cyberbullying laws on speech which creates emotional harm or creates a hostile environment would temper schools’ reach in practice. Nonetheless, both the new statutes and courts’ attempts to stretch Tinker to fit  cyberbullying create the possibility that schools could cast too wide a net and intrude on the protected speech that even students enjoy in their capacity as private persons. The Tinker standard is simply not well suited to the problems of student internet speech; for the sake of both legislators and school administrators, greater Supreme Court guidance seems to be necessary. One possible approach, which builds on the narrow holding of Morse, would abandon the outdated “schoolhouse grounds” conception of student speech and instead focus more explicitly on the school’s interest in protecting its students from certain recognized classes of harms. If an inane drug banner (“Bong Hits 4 Jesus”) justifies schools exerting their regulatory reach outside school grounds because of a “special danger,” then a fortiori so does the immense harm caused by cyberbullying.

This approach would require abandoning the “substantial disturbance to classroom discipline” standard—overly broad in this context—but would enable schools to regulate speech emanating from outside the school if it falls into a more narrowly defined category. Rather than rendering Tinker a nullity by stretching its language beyond reason, schools would be empowered to define the harm more precisely. Some courts have sought to broaden the holding of Morse in this way in the few years since it was decided, but a wholesale change away from the convoluted Tinker-type analysis will likely not come until the Supreme Court itself addresses the outmoded standard. Any Morse-based approach would bring its own problems of overreach, but it might help states and schools produce more precise and forthright definitions of the scope of their authority to handle the issue.

After Perich informed the school that she would assert her legal rights against discrimination if the two sides were unable to reach a compromise, Hosanna-Tabor fired her for insubordination.  Perich complained to the EEOC who brought this lawsuit on her behalf, alleging that the school retaliated against her in violation of the ADA.  Hosanna-Tabor does not dispute that they fired Perich because she threatened to sue.  Instead, they argue that applying ADA protections to this situation would infringe upon the parochial school’s religious freedom under the First Amendment, because Lutheran doctrine states that disputes between church ministers must be resolved internally.  Perich taught predominantly non-religious subjects and thus her activities devoted to religion—teaching one religion class and leading short prayer sessions—took up only forty-five minutes of each seven-hour school day.  However, in order to become a tenured teacher, Perich had been required to complete colloquy classes on various aspects of the Christian faith.  After completing these classes, Perich and all other tenured teachers in the Lutheran school district had received the title of “commissioned minister.”

The ADA is subject to a ministerial exception, which protects the First Amendment-derived rights of religious organizations to make employment decisions in accordance with their religious beliefs.  The scope of this exception is the tricky subject of this case.  At oral argument, the parties argued for very different standards.  Representing Hosanna-Tabor was Professor Douglas Laycock, an expert on religious liberty law at the University of Virginia.  Professor Laycock first argued that a discharge claim by a minister should never be heard in court, based upon a central First Amendment principle: the government must stay out of deciding who should be a religious official.  Justice Sotomayor quickly pointed out a troubling aspect of his proposed approach:

“Now, we know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and I believe children. Regardless of whether it’s a religious belief or not, doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious . . . ?  And once we say that’s unacceptable, can and why shouldn’t we protect the people who are doing what the law requires, i.e. reporting it?  Under your theory, nothing survives if the individual is a minister, no . . . private claim.”

Laycock then cautiously acknowledged that a limited carve-out to the exception could be appropriate, but only if the government interest involved was something other than protecting ministers from discrimination (such as protecting the aforementioned exploited child), and then only if such an interest was “sufficiently compelling to justify interfering” in the church-minister relationship.  Justices Sotomayor and Kennedy asked whether a claim could proceed in pretext cases, cases where a plaintiff would allege both discrimination and that the church did not have a religion-related reason for the discriminatory act.  Laycock rejected this approach on the grounds that judges would have to interpret religious doctrine to determine whether or not a church interest was actually involved.  Justice Scalia made his position on this issue quite clear, interrupting Laycock at one point to say “I think your point is that it’s none of the business of the government to decide what the substantial interest of the church is.”

Chief Justice Roberts then pressed Laycock on what defines a religious minister for purposes of the ministerial exception.  One of the few undisputed conclusions of the arguments was that it is the court’s job to determine whether Perich was actually a minister.  The dispute is over what that definition should be.  Laycock eventually summarized his definition: “A minister is a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously, including teaching of the faith.”  However, the justices were not convinced by the broad “important religious functions” category, which would encompass any employee who teaches any amount of religion.  Responding to Laycock, Justice Kennedy strongly believed that whether Perich satisfied the legal definition of minister was not clear: “I suppose when we do that we say, how many secular functions do you perform?  And that’s what this case is.” The Sixth Circuit decision that the Supreme Court is reviewing is at odds with Laycock’s argument.  They applied a “primary duties” test, under which they held that Perich was not a minister because her duties were largely secular.  The justices’ tough questioning on this issue made clear that they consider the legal definition of a religious minister to be a difficult but essential task to delineating the boundaries of the ministerial exception.

On behalf of the EEOC, United States Assistant Solicitor General Leondra Kruger took the position that a completely different test should govern this case: a general balancing of interests test.  Kruger argued that the First Amendment interest in question should be balanced against other constitutional interests to determine whether anti-discrimination law should apply.  The justices were skeptical for several reasons, but appeared most concerned that Kruger’s proposed test would force a court to evaluate the relative importance of religious doctrines.  Justice Breyer told Kruger that it was “obvious” that courts could not force the Catholic Church to hire female priests based on sex discrimination law, and asked Kruger if this exemption from discrimination law suggested that the Lutheran doctrine of internal dispute resolution was relatively less important to practicing the Lutheran faith.  Kruger responded that the two situations do not suggest that the Catholic doctrine was relatively more important, but that “the government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.”

Even solely in terms of evaluating the governmental interests involved, Justice Breyer was not comfortable with Kruger’s response: “You are saying that going to court is a more fundamental interest than a woman obtaining the job that she wants, which happens in this case to be a Catholic priest . . . . You may be right, but it isn’t obvious to me that the one is the more important than the other.”

The court’s questions to Kruger suggest they will not adopt her general balancing test, because of the potential damage to important First Amendment values.  Beyond that, the oral arguments demonstrated that the justices are having a difficult time delineating the boundaries of the ministerial exception.  Professor Laycock clearly sketches out a broad ministerial exception that would prevent judges from interpreting religious doctrines where a church’s interpretation could reasonably vary from that of a judge, but his acknowledgement of exceptions provides support for the government’s position: at some level, to determine whether interference in the church-minister relationship is justified, courts must evaluate religious doctrine.

Earlier this month, as part of its Smarter Cities Challenge grant program, IBM awarded $400,000 to Chicago’s public schools, thereby launching a public-private program that will set up five innovative technology-oriented high schools throughout the city. As the Chicago Sun-Times has noted, the initiative aims to (re)train teachers in science, technology, and mathematics, as well as to restructure school curricula in order to place a more significant emphasis on up-to-date job training programs. The broader goal seems to be to prepare traditionally low-performing students to compete in a job market hungry for technical skills in areas like engineering and computer science. IBM’s contribution to the program will not be limited to money; the company plans to dispatch a number of consultants, who will coordinate and implement the plan alongside Chicago leaders and other stakeholders.

Last week, the Chicago Tribune cast additional light on the city’s new program. It reported (contrary to the Sun-Times) that the five participating schools would be high school-community college hybrids: students would be enrolled for up to six years (grades nine to fourteen) and given the chance to graduate with an associate degree in hand. In addition, graduates of the participating schools’ six-year programs would be given preference for entry-level jobs at IBM. As the Huffington Post added, the rationale of the IBM-Chicago alliance seems to be contained in the view that students uninterested in an academic college education can be motivated to finish high school by the prospect of remunerative work in concrete, technical fields.

The IBM-Chicago plan is in its infancy, and the details of its implementation are still rather tentative. But it seems clear that the plan represents a particular way of understanding the relation between education and employment, a particular way, that is, of preparing young people for the labor market.

High school-community college hybrids—schools that fuse traditional high school courses, associate degree-level education, and job preparation—have an obvious benefit: they link high school to job training, thus discouraging students who feel averse to academics but want to learn a profitable trade from dropping out. Moreover, these schools assume responsibility for students past the twelfth grade, a move that has both practical and symbolic consequences.

Of course, such schools can also be seen as representing a dynamic that has vexed no shortage of cultural commentators in this country, namely, the move in America’s conception of pedagogy from literariness to literacy, from the abstract to the concrete, from “thinking skills” to instrumental expertise. Indeed, familiar arguments can be mustered both for and against the sorts of schools contemplated by the IBM-Chicago plan. Consider two standard arguments. (1) Opposing the development of hybrid and vocational schools only reinforces the false and harmful stereotype that “hands-on” job training is a second-rate alternative to academically oriented education. (2) High schools dedicated to job preparation produce students who are unprepared to function as informed citizens, students who cannot make informed decisions at the voting booth or serve (meaningfully) on a jury. Though it will inevitably engender debate as it moves forward, the IBM-Chicago plan may well come to serve as a model for likeminded initiatives throughout the country. If nothing else, then, the plan requires us to think carefully about the appropriate relationship between conceptual and vocational training in American education.  Not to mention the implications of relying on donations from private corporations to fuel public services.

At oral arguments, Thomas Goldstein, a lawyer for the petitioner, struggled to articulate precisely the procedure he was asserting to be unconstitutional.  To some justices’ surprise, Goldstein conceded that if prison guards observed inmates disrobe from across the room, their actions would not violate the Constitution.  Rather, the constitutionality of a search hinged on the proximity between the guard and the inmate during a nude inspection.  “Are you suggesting,” Justice Sonia Sotomayor interjected, “[i]t’s okay to stand five feet away, but not two?”  Goldstein would not answer “how close is too close”; however, he affirmed that the constitutional violation in the case arose from the guards’ close proximity to the petitioner while searching him.

Several of the justices seemed surprised by other concessions Goldstein made during oral arguments.  For instance, Goldstein suggested that a policy whereby close-range strip searches were performed by medical professionals would be constitutional.  “If you’re examined close up by someone who has a medical degree, it’s okay?” Justice Antonin Scalia questioned.  “And on the other hand, if it’s someone who does not have a medical degree, it’s not okay?”  Goldstein answered affirmatively.  Justice Scalia stated that he failed to see Goldstein’s distinction.

Carter Phillips, counsel for the prisons, also received some pointed questions from the bench.  A number of justices expressed their skepticism that the prisons had an interest in subjecting all inmates – even those charged with only minor offenses – to close-range strip searches.  Justice Stephen Breyer referred Phillips to studies showing no increase in contraband discovered when prison officials moved from a policy whereby guards strip searched all inmates upon entering the facility to one in which guards were required to have “reasonable suspicion” before a search.  “I understand contraband is serious,” Justice Sotomayor explained.  “But most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits.  The great cause today is that from corrupt correction officials.”  Phillips countered, asking the Court to rely on its “common sense,” not scientific studies.

To listen to the entirety of the oral arguments in Florence, click here.  To read the petitioner and respondents’ briefs, click here.

As of last year, Tennessee law requires voters to present a valid, government-issued ID before casting a vote in state and federal elections.  To comply with the mandate, Cooper – who has voted in every election for which she’s been eligible, save one – went to a state Driver Service Center to get her free ID.  To confirm her identity, Ms. Cooper brought with her a rent receipt, a copy of her lease, her voter registration card, and her birth certificate.  This documentation was deemed insufficient, however, and her request for an ID card was denied.  A clerk at the Service Center told Ms. Cooper that he could not process her request as the birth certificate she presented listed her maiden – not her married – name.  If Ms. Cooper wanted to vote, she had to return to the Center with her marriage certificate.

Ms. Cooper’s experience at the Service Center has renewed the debate over Tennessee’s controversial ID requirement.  In an interview with the Chattanooga Free Times Press, State Representative Tommie Brown denounced the Republican-backed measure as a means to “suppress the vote” among the elderly, the poor, and racial minorities (Ms. Cooper happens to be black).

State officials have already begun back-pedaling.  In an interview with the Nashville Scene, Jennifer Donnals, a spokesperson for the Tennessee Safety Department, explained that Ms. Cooper’s situation should have been handled differently.

[T]he clerk was following policy for issuing photo IDs, but we think that the clerk could have taken some extra steps to help this woman in this situation.  But that is the policy.  If someone comes in with the birth certificate that does not have their correct last name, then there needs to be some supporting document to prove that’s her last name.

Asked what documents Ms. Cooper needed to bring when she returned to the Service Center, Donnals answered, “Every situation is different.”

The Safety Department’s response to Ms. Cooper’s experience is troubling for a number of reasons.  First, it is not entirely clear that state officials know what documents voters need to present before receiving a state-issued ID.  The Service Center clerk apparently though that Ms. Cooper needed present a marriage license, but Donnals suggests that other documentation would have sufficed.  Second, the Tennessee ID requirement makes it appreciably harder for women to vote in the state than men.  Women who give up their maiden names must present additional documentation to receive their mandated ID cards, yet men can escape the time, effort, and travel necessary to fulfill this requirement.

Finally, the Safety Department’s proposed solution to Ms. Cooper’s situation is wholly unsatisfying.  Essentially, Donnals proposes that processing clerks simply “try as hard as they can” to get voters their ID cards, exercising good judgment in a given situation.  Malleable licensing procedures have been repeatedly decried by the Supreme Court, at least in the First Amendment context.  In Forsyth County v. Nationalist Movement, the Court overturned a state licensing system affording municipal workers considerable discretion in deciding to issue parade permits.  Unchecked discretion, the Court feared, could lead to content discrimination.  The government could grant permits to groups promoting speech that it liked, while denying licenses to groups espousing disfavored opinions.

The Tennessee law allows for content discrimination of a different sort.  A clerk may “give it her all” to secure an ID card for an applicant whose demographics suggest that she will vote for the clerk’s preferred candidate, yet adhere to the strictures of the law’s requirements when the applicant’s politics seem less amenable.  If discretion is disallowed in the context of free speech, it should also be eschewed in the context of voting.  Tennessee cannot solve its problems regarding the ID law simply by asking state workers to be more cooperative.  Greater, institutional changes are necessary to protect certain classes of voters from disenfranchisement.

In 1997, Cory Maples was convicted of murdering two men. After an Alabama jury voted 10-2 to impose the death penalty, two associates at Sullivan and Cromwell took up Maples’ appeal. The associates presented an ineffective assistance of counsel claim, arguing that Maples’ attorney had not presented salient evidence during the sentencing hearing. An Alabama court rejected those claims, and Maples had 42 days to appeal. The appeal was never filed because each S&C attorney left the firm. As Justice Sotomayor noted in oral arguments, both attorneys accepted positions that barred continued representation of their client. Neither attorney notified their client or the courts of their departure. As a result, the appeals period lapsed and Maples defaulted his right to further proceedings.

The narrative contains other, complicating, wrinkles. Most notably, the S&C attorneys worked with local counsel, whose role in representing Maples is undeveloped in the record. Maples maintains that local counsel merely facilitated admission of S&C’s pro bono counsel. Alabama maintains that its rules of criminal procedure mandate more, and that as counsel of record, local counsel was an agent of Maples. The agency question is a pivotal one: If local counsel was acting as Maples’ agent, then counsel’s failure to file a timely appeal is attributable to Maples. To that end, the petitioner noted that local counsel’s affidavit betrays local counsel’s limited role. Justice Roberts pursued that point vigorously, asking the state’s attorney to identify, in fact, particular actions taken by local counsel. No response was given.

During oral argument, Justice Scalia pushed the petitioner by asserting that the constitution and federal rules of criminal procedure are silent on notice. The petitioner responded that Mullane established a due process interest in notice, an interest particularly compelling in the context of capital cases. Justice Scalia was also skeptical of another argument. The petitioner noted that state prosecutors had sent a letter regarding default directly to Maples, rather than to local counsel or the S&C attorneys. Seizing on that point, the petitioner argued that state prosecutors must have known Maples’ attorneys had abandoned him. Justice Scalia, however, described the letter as an “extraneous volunteered statement” with no legal import. Chief Justice disagreed, implying that the correspondence betrayed knowledge that Maples was insufficiently represented.

Other Justices were less critical of the petitioner and more frustrated by the state. As Adam Liptak notes, Justice Alito asked Alabama’s solicitor general why a technical claim against Maples was being pursued. Justice Kennedy pursued that inquiry as well, raising the state’s discretion to waive procedural default. Justices Kagan and Breyer questioned the adequacy of the record. The former asserted that conflicts of interest left the record “irretrievably corrupted” and the latter suggested that remand is necessary to develop local counsel’s role.

The Court’s primary reservations about finding for the petitioner appeared animated by risk aversion. Justice Alito worried that the petitioner was “pushing the court to consider rules that would have far-reaching effect.” Much of this conversation centered on the Court’s finding in Holland v. Florida. There, seven Justices held that equitable tolling is permissible—the suspension of a statute of limitations—where an attorney’s extraordinary misconduct prevents a defendant from appealing in timely fashion. In Maples, the petitioner responded to the Court’s worry about expanding Holland by speculating that Holland relief is rarely given. The petitioner also noted that principles of agency law would cabin the application of a Maples rule. Acknowledging that the threshold showing necessary to show cause is currently and would remain very high, the petitioner helped assuage concern. Justice Alito had worried that layering abandonment on top of ineffective assistance of counsel would fundamentally change the law.

Maples is a critical test of the Court’s willingness to depart from strict formalism and Holland may portend its answer. In Holland the Court found 7-2 for the petitioner. Justice Alito concurred and Justices Scalia and Thomas dissented. The oral arguments in Maples appeared to confirm that alignment. After all, despite Justice Alito’s concern, he forcefully asserted that: “Mr. Maples has lost his right of appeal through no fault of his own.”

Further coverage is here. SCOTUSblog has generated fascinating discussion here and has expert analysis here.

The case arose out of an on-campus event at the University of California-Irvine in February 2010 at which Israeli Ambassador to the United States Michael Oren was a featured speaker. His speech, hosted by a student organization but under the auspices of the university, was on the topic of US-Israeli relations. During Oren’s speech, ten students rose in succession and vocally expressed their disapproval of Israeli policy and of Oren in such statements as, “Propagating murder is not an expression of free speech!” Each student was led out of the auditorium by security immediately following their exclamations; after the individual interruptions a larger group of students arose in unison and left the hall while chanting. After an admonishment to the demonstrators from a university official at the podium, Oren eventually resumed and finished his speech. Nearly a year later, prosecutions were initiated against the ten students who individually spoke out—as well as against one of the chanters from the larger group—for violating a California statute which authorizes misdemeanor charges against anyone who “willfully disturbs or breaks up any assembly or meeting.”

Not surprisingly, the charges and the recent guilty verdict against the students have triggered hyperbolic rhetoric—rhetoric which seems to mirror, also unsurprisingly, underlying ideological loyalties with respect to the Israel-Palestine conflict. Defenders of the students characterize the charges as straightforward violations of their freedom of speech. Salam al-Marayati, president of the Muslim Public Affairs Council, called the verdict a “sad day for democracy,” calling into question whether we “live in a democracy, not a dictatorship.” The left-wing ANSWER coalition declared that “the Eleven were prosecuted and convicted because they are Muslim.”

Those on the other side of the ledger frame the issue, just as straightforwardly, as a defense of Oren’s speech rights against the attempts of hecklers to “censor” him. Alan Dershowitz announced in an editorial that the case was a clear demonstration of the inadmissibility of the “heckler’s veto.” “It was these young criminals who were trying to chill, indeed freeze, the constitutional rights of the speaker and those who came to hear him.” Orange County DA Tony Rackauckas—a staunch conservative who has had plentiful brushes with controversy – lauded the prosecutions as a strike against “thuggery,” a statement that “we will not tolerate a small band of people who want to hijack our freedoms.” In an even more disturbing use of loaded language, the right-wing “Investigative Project on Terrorism” has described the incident as another example of an ongoing, wide-ranging “Muslim” struggle against American free speech rights.

In reality, of course, the rights of hecklers cannot be so easily resolved by recourse to pat, absolutist arguments for free speech; resolution of the issue is an exercise in line-drawing between competing protected interests. However—and despite the seemingly unjust excessiveness of prosecuting students for doing nothing more than speaking their minds—the California statute under which the Irvine 11 were charged is almost certainly constitutional as it has been constructed. The propriety of its enforcement in this case is an entirely different question.

The concept of the “heckler’s veto,” although used by many commentators including Dershowitz as a shorthand to describe the constitutional dilemma at work here, is not fully helpful in its application to these facts. More a rhetorical device than a coherent body of First Amendment doctrine, it has been used repeatedly by the Supreme Court to describe situations in which police silenced speakers (or denied them permits to speak in the first place), because of the hostility or violence of the audience reaction. See Terminiello v. Chicago. In other cases, it has been used to illustrate the concept that the easily offended or fragile cannot be allowed to serve as “censors” of others’ speech in the public sphere. See Cohen v. California, Reno v. ACLU. Here, by contrast, no one challenged Oren’s right to deliver his message, and there was never any question of silencing him as a consequence of the disturbances.

Nonetheless, the term points to an insight at the heart of the classical liberal conception of free speech; freedom of expression is to be tolerated for all, but only to the extent that it does not trample on the expressive rights of others. “Pure” speech, devoid of anything but its ideological content, can never be said to violate the rights of others to respond with their own pure speech. Ambassador Oren has no right to be shielded from the anti-Israeli sentiments of the Irvine students. Nearly all speech activity, however, is mixed with elements of conduct, and it is this conduct—and not the self-expression embedded within it—which can be properly restricted consistently with the First Amendment. Shouting matches and a cacophony of shouts and chants may be consistent with the promotion of freedom of speech on street corners or in public parks, but it is clear that more structured settings require the imposition of content-neutral decorum norms for the protection of speaker and audience alike.

The California Supreme Court has interpreted the state’s “heckler” statute in order to uphold this crucial speech-conduct distinction. The statute, Penal Code Section 403, is unconstitutionally overbroad as originally written. In prohibiting the act of “willfully disturb[ing] or break[ing] up any meeting,” the law makes no provision for context, degree of disturbance, or mode of speech; on its face, it could be used to prosecute mere booing. The California Court’s decision in In Re Kay, however, mandated that the statutory language be construed narrowly, in line with constitutional limitations: “The Constitution does not require that any person, however lofty his motives, be permitted to obstruct the convention or continuation of a meeting without regard to the implicit customs and usage or explicit rules governing its conduct.” Accordingly, the court ruled that Section 403 could be used to punish speech only when a defendant commits acts which (1) “substantially impair” the conduct of a public meeting (including speeches) and (2) in doing so intentionally violates the customs or norms which apply to that setting. The California courts have held, for instance, that a group of protesters who clapped in rhythm during a Congressman’s speech, but didn’t actually drown it out, could not be prosecuted; on the other hand, they upheld the prosecution of a man who dumped out a large bag of trash at a school board meeting to “make a point” about student littering.

As narrowed by In Re Kay, the statute seems to fall within the realm of constitutionally permissible, content-neutral speech restrictions; its context-sensitivity qualifies it as “narrowly drawn,” and the high threshold for “significant” disturbance leaves open ample alternate channels for communication of dissent. Since the government, acting through a state university, was also in some sense acting proprietarily here, it is important to note that this class of restriction appears to fall comfortably within the government’s ability to define the scope of a limited or nonpublic forum in a content-neutral manner.

That said, the prosecution of the Irvine 11 here remains problematic, for two reasons.

First, there is a serious question whether the students were intentionally violating the audience speech norm as it applied to a setting like the Oren event. In situations in which the limits of acceptable protest are unclear, the Kay court found that a warning should be given. Here, as the prosecution pointed out at trial, a university chancellor admonished the audience before the speech began, saying that, “We have the highest expectation for civility and respect.” Nevertheless, the students’ defense argued that their conduct was not outside of reasonable expectations that vigorous dissent would be tolerated in an academic setting. The defense called an Irvine professor who testified that the hecklers were acting within the historical tradition of student protest; another UCLA professor testified that the protest was within the norm because, although interrupted, Oren was able to finish his speech in orderly fashion and deliver his message.

The students may not have been so innocent in their motives. The prosecution pointed to emails which indicated that their goal in coordinating their efforts was not only to deliver a message, but also to stymie Oren’s speech to the greatest extent possible. Even assuming that they deliberately violated speech norms and made themselves culpable under the letter of the statute, however, a serious question remains about selective enforcement. The reason the case attracted so much attention in the first place is its palpable excess; it violates our expectations about the normal government response to hecklers just as surely as the students themselves violated the decorum standards of the event itself. As the California Supreme Court pointed out, the filing of criminal charges in such a situation is rare—and the fact that the government chose to come down with all its weight on a group of Muslim college students protesting an Israeli speaker is a further red flag. One of the students’ attorneys points to the Orange County DA Office’s habit of referring to the situation as the “Muslim” case in its internal emails as damning proof of selective animus. More plausible than outright discrimination against Muslims, perhaps, is the inference that the prosecutor’s office of a rabidly conservative, fervently pro-Israel constituency in Orange County decided that throwing the book at the students would be good politics.

Regardless of whether this was legally cognizable discrimination or selective enforcement, it is almost surely bad policy and poor precedent. As Erwin Chemerinsky, the dean of the Irvine Law School and a First Amendment expert himself, has noted, the case is a serious miscarriage of prosecutorial discretion. While conceding—rightly—that the students exceeded the bounds of their own free speech rights and violated the letter of California law, he found the response disproportionate and counterproductive. “It has made martyrs of students who behaved wrongly, but who don’t deserve to be criminals….It deepened wounds that will be difficult to heal. It is inexplicable to me why the district attorney prosecuted this case. What is clear is that he failed in his most important duty: to do justice.” The most unfortunate aspect of the Irvine case is that it furthers the perception, unjustified or not, that the government’s response to speech protests can be expected to vary with the political status of the speaker or the marginalized status of those who raise their voices in dissent.

In his article forthcoming in Volume 47:1 of the Harvard Civil Rights-Civil Liberties Law Review, “The Right to Comprehensive Educational Opportunity,”  Michael A. Rebell, a professor at Columbia University Teachers College, argues for the recognition of a constitutional right to quality education for all children.  A draft of Rebell’s article, along with responses from academics and practitioners, is available here.

On October 13th, 2011 at Harvard Law School, the author was joined by Dean Martha Minow, Chair of the Institute for Educational Leadership Marty Blank, and Massachusetts Secretary of Education Paul Reville for a panel discussion of his article.

A live blog of the event, summarizing the speakers’ comments and providing our own, appears below.

The live blog will appear here once the event begins.

The United States Supreme Court held in Planned Parenthood v. Casey that the government can act to further its legitimate interest in protecting potential life, but can never enact a statute or regulation that will have the purpose or effect of creating substantial obstacles for a woman seeking an abortion to receive one.  This is where the ACLU’s case fell short in the eyes of the court.  The court found that the ACLU’s motion was based on the argument that the purpose of the statute was to place obstacles, which the judge believed the ACLU failed to show.  Instead, he accepted the government’s assertion that the purpose was merely to prevent consumers from being “forced” to support a procedure they oppose through their insurance premiums.

So what’s left for the ACLU?  In the trial on the merits, it can still show that the statute has the effect of placing obstacles in the way of women seeking an abortion.  The ACLU’s Program Director already provided a sworn declaration that some ACLU members would lose their coverage and face financial difficulties.  While the judge hinted that this may be insufficient, the ACLU likely will have no problem finding more evidence, and strong evidence, that the statute completely forecloses the option of abortion for some women, clearly eliminating their choice.

According to the Guttmacher Institute, a non-profit authoritative on issues of reproductive health, nationally, 69% of women who receive abortions have incomes below 200% of the federal poverty level.  That’s an income of less than $22,000 a year for a single woman without children.  While the abortion rates among women in higher income groups are decreasing, abortion rates for women with incomes below 100% of the federal poverty line (meaning women who make about $10,000 or less per year) are only increasing.  While the poorest women likely receive Medicaid and thus, in Kansas, only receive abortion coverage in cases of rape, incest and life endangerment, there are surely numerous women who are “too rich” for Medicaid but too poor to pay for an additional rider.  Considering that Kansas is either at or above national rates of poverty among women, the ACLU shouldn’t have a problem showing there are plenty of women who would not be able to afford coverage.

Even if the ACLU is able to demonstrate that the law has an illegal effect, the most interesting argument that the ACLU advanced, and that we hope it keeps advancing, is that the statute discriminates on the basis of sex by denying coverage to women for all of their reproductive needs while providing men with full coverage.  However, the court held that, since the statute’s purpose was to protect those opposed to abortion from having to pay for it through their premiums, this argument was precluded by the Supreme Court’s holding in Bray v. Alexandria Women’s Health Clinic that opposition to abortion is not gender discrimination.  But the Kansas statute isn’t just a group of activists blocking the entrance to an abortion clinic.  This is the state requiring that insurance not be provided to women because they are women.  As Justice Stevens pointed out (way ahead of his time on this one) in his dissent in General Elective v. Gilbert, a case in which an employer refused to provide insurance coverage for pregnancy, “by definition such a rule discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male.”   After the majority in the case disagreed, Congress responded by passing the Pregnancy Discrimination Act, acknowledging that discrimination on the basis of pregnancy was sex discrimination.  This recognition of sex discrimination has finally started to catch on in the courts too (see here).  Abortion is necessarily and completely an element of pregnancy.  So, if it is discrimination on the basis of sex to treat women differently because they are pregnant, how can it not be discrimination on the basis of sex to treat women differently because they seek to terminate a pregnancy?  It’s an important argument to continue to explore and advance and it will be exciting to see if the ACLU is up to the challenge.

With many tools still available and compelling arguments to make, the ACLU hasn’t lost this one yet, not even close.  The statute should, and quite possibly will, be declared invalid.

Reliance on disclosure makes sense. Though the Supreme Court may not have envisioned super PACs when it decided Citizens United, it did speak to disclosure’s prophylactic potential. It was with that potential in mind that the Court settled the case, striking campaign finance reforms while voting 8-1 to uphold a robust disclosure regime. Justice Kennedy wrote:

“[D]isclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. The transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

The Court  continued, reassuring potential critics that where disclosure occurs, “Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits . . . .” Likewise, disclosure allows citizens to “. . . see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”

Because super PACs are bound by all this disclosure, the risk that they will corrupt candidates and officeholders is diminished. To what extent remains a curious question. The question has received increased scrutiny in recent days, after being addressed by comedian Stephen Colbert. As Colbert notes, Super PACs are permitted to accept contributions from 501(c)(4)s. 501(c)(4)s are tax-exempt organizations incorporated to pursue social welfare. As it turns out, the organizations are permitted to participate in campaigns, but not bound to disclose their donors. As a result, Colbert and others have asserted that individuals or entities that wish to remain anonymous will donate to 501(c)(4)s that support their preferred super PAC. Voters, then, will lose valuable information about which individuals and which corporate entities lay behind particular messages.

This position has elicited criticism, most prominently from Brad Smith at the Center for Responsive Politics. Smith asserts that when money travels to a super PAC through a 501(c)(4), the information needed to maintain systemic integrity is still available. Smith notes that when a 501(c)(4) incorporates, it must identify the individual responsible for formation and the individual who possesses ongoing control. Being able to identify a 501(c)(4)’s management, however, is distinct from being able to identify its donors. I know that Colbert controls the 501(c)(4) entitled “anonymous shell corporation.” I won’t know the identity of anyone or any entity that contributes to it.

Earlier in his criticism, however, Smith raises an important point—that disclosure may chill speakers who want to articulate a message that is controversial enough to elicit backlash. The Supreme Court addressed this point in Buckley v. Valeo. The Court said that organizations might be exempt from disclosure requirements where they can present evidence that supporters or members had been and would be harassed. To support its proposition, the Court cited two cases in which disclosure would have subjected individuals to bodily harm, NAACP v. Alabama and Brown v. Socialist Workers. Going forward, courts could seize on the language in Buckley to ensure that disclosure does not subject anyone to physical harm.

Corporations have another concern: Political speech may alienate customers and reduce profitability. This has already occurred in the post-Citizens United world, most notably when consumers boycotted Target. Consequently, the anonymity that 501(c)(4)s provide is an attractive alternative to direct donations. Though attractive to corporations, the alternative’s availability presents risks; chiefly, that the corruption concerns that animate robust disclosure will be realized. Because super PACs can elicit unlimited contributions from 501(c)(4)s, and because 501(c)(4)s can communicate their donor list to the super PACs directly, that concern is real. The corruption risk could be addressed by compelling 501(c)(4)s to disclose, but the FEC has—for the time being—foreclosed that option. In 2007, the Commission announced that corporations and unions need only disclose contributions received “specifically for the purpose” of funding electioneering communications. As a result, where a 501(c)(4) does not earmark for an electioneering communication the money that it gives to a super PAC, there is no disclosure requirement.  While reformers could pursue rulemaking with other agencies–as when a group of prominent law professors petitioned the SEC for a rulemaking that would require publicly traded corporations to disclose–no action on 501(c)(4)s is likely before the 2012 election cycle. Barring exceptional circumstances, where super PACs get their money seems likely to remain a mystery as the those entities shape decisions in this critical election cycle.

On appeal from the U.S. District Court of the Southern District of New York, the Second Circuit reversed the district court’s dismissal of the suit on standing. The court found that the plaintiffs had alleged sufficient present injury to establish standing by incurring costs from the reasonable fear that their electronic communications with their clients, for whom they have an ethical duty to maintain confidentiality, would be the subject of surveillance. The court denied the government’s petition for a rehearing en banc, but as the New York Times noted in a recent article, the even split in the judges’ votes demonstrates the clear division on the court, not merely on the procedural aspects of the law suit, but also on the merits of the case, which center around the constitutionality of the FISA Amendment Act’s broad sweep. Indeed, the dissenting judges’ characterizations of the court’s refusal to rehear the case en banc as an “unprecedented” lowering of the standard for standing, and their likening of the plaintiffs to “every mobster’s girlfriend who pays for a cab to meet with him in person rather than converse by telephone,” are indicative of the highly divisive nature of the suit.

If the case is heard by the Supreme Court, it is unclear how the Court would rule, as the Court rejected the ACLU’s appeal of the 6th Circuit’s dismissal of a similar suit, ACLU v. NSA, on the basis of standing in 2008. Here, however, a denial of certiorari would result in the case being remanded to the District Court to be decided on the merits. As of yet, no case challenging the FAA has reached the Supreme Court. Thus, the Supreme Court granting certiorari in this instance could represent another obstacle for the ACLU in challenging the constitutionality of the amendment, as a decision reversing the 2nd Circuit decision could potentially bar the way for many (perhaps all) others to challenge the statute. A majority of the Court demonstrated little concern for such considerations in its 2011 decision in Arizona Christian School Tuition Organization v. Winn, in which the Court dismissed an Establishment Clause suit on the issue of standing over the dissent’s objection that “[t]he Court’s opinion . . . offers a roadmap—more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge. . . . No taxpayer will have standing to object.   However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts.”

If, however, the case is allowed to proceed on the merits, the suit would represent an important step in defining the limits of government surveillance programs, as the constitutionality of such programs is a matter of public concern that has yet to be determined by the courts. Indeed, this decision has been handed down in the wake of growing uneasiness and uncertainty surrounding the FISA and the interpretations of its provisions. As reported in a New York Times article, on September 21, 2011, in a letter to Attorney General Holder, Senators Ron Wyden and Mark Udall warned that the members of the Department of Justice had made repeated “misleading statements” about the Department’s interpretation of surveillance law, noting that the public’s understanding of the law was necessarily obfuscated by the fact that the legal interpretation of §215 of the Patriot Act, which amended the FISA, is not publicly available because such cases are decided by the FISC, whose decisions are made classified as a matter of national security. The letter therefore questions the Department’s assertion that its interpretation of §215 of the Patriot Act is not secret law, when many of the decisions issued by the FISC are in fact classified.

Given the secrecy that surrounds the FISA, its implementation and its interpretation, a Supreme Court decision dismissing the case on standing could present an almost insurmountable obstacle to would-be plaintiffs to establish standing. Such a decision could therefore undermine not only private citizens’ privacy rights, but also the doctrine of separation of powers by effectively shielding the statute from judicial review.  For the time being, however, ACLU Deputy Legal Director Jameel Jaffer’s outlook on the Second Circuit’s decision remains optimistic: “The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be.”

At issue was a Facebook conversation between co-workers.  Their employer, Hispanics United of Buffalo (HUB), is a not-for-profit corporation which renders social services for economically disadvantaged clients.  One HUB employee, Lydia Cruz-Moore, had frequently criticized the job performance of her fellow staff members.  After Cruz-Moore told a co-worker that she was going to discuss these criticisms with HUB’s executive director, that co-worker posted the following message on her Facebook page:

“Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it!  My fellow coworkers how do u feel?”

Responses from co-workers included the following:

“What the Hell, we don’t have a life as is, What else can we do???”

“I think we should give our paychecks to our clients so they can ‘pay’ the rent, also we can take them to their Dr’s appts, and served as translators (oh! We do that).”

The original poster responded: “Lol.  I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do . . . I’m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human : ) love ya guys.”

The original post and all responses occurred on a Saturday, which was not a work day for any of the employees involved.  None of the employees used HUB’s computers to post these Facebook messages.  Three days later, HUB’s executive director fired five of the employees who had posted comments, explaining to each discharged staff member that the posts violated HUB’s policy on harassment (harassment against Cruz-Moore).

Section 7 of the National Labor Relations Act extends protections to most private sector employees, including the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Workers do not need to be actively trying to change workplace conditions or policies for such NLRA protections to apply, as employees are also protected in simply discussing concerns that they feel are affecting their employment.  Thus, this protection is fairly broad as long as the activity is concerted; the activity must be either a group effort or an individual effort that initiates or induces group participation.   Section 8(a)(1) is the enforcement mechanism for Section 7 protections, prohibiting employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. Based upon such protections, Judge Amchan held:

“Employees have a protected right to discuss matters affecting their employment amongst themselves.  Explicit or implicit criticism by a co-worker for the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.  By terminating the five discriminatees for discussing Ms. Cruz-Moore’s criticisms of HUB employees’ work, Respondent violated Section 8(a)(1).”

Judge Amchan articulated the facts of this case in such a way that the legal analysis could then be presented as a straightforward application of Section 7 protections: he establishes that there was “concerted activity” and that the subject matter was related to mutual aid and protection, and therefore the Facebook conversation was protected.  Nonetheless, the law on social media is sure to see rapid development due to social media’s increasing prevalence and thus the potential for many situations that will call into question the definitions involved in understanding Section 7 rights.  According to Nielson’s Third Quarter 2011 Social Report, nearly four-fifths of internet users visit social networks and blogs.  Facebook reaches 70 percent of active U.S. internet users, and Americans spend more time on it than any other U.S. website.  In August, the NLRB’s General Counsel released a report that examined recent case developments “arising in the context of today’s social media.”  The new challenge presented by social media is articulated in many of these cases: social media platforms can make it difficult to differentiate between “concerted activity” and activity which is not concerted and thus unprotected — that which is engaged in “solely by and on behalf of the employee himself.”

For example, the August report examined one case in which a bartender was discharged for posting a message on his Facebook page in which he complained about his employer’s tipping policy.  There, the employee had not discussed his posting with any coworkers, nor had any of them responded to his posting.  Thus, the NLRB advised the parties involved that the activity was not protected.

The report also mentioned a case in which a BMW salesman expressed concerns about the actions of his employer: inviting customers to an event but only providing hot dogs and other cheap food and beverages to the customers at the event.  The employee’s concern was that the inexpensive food would send the wrong message to the company’s clients and accordingly have a negative effect on his sales and work conditions.  The employee had discussed the planned food choices with several of his co-workers, who shared his frustration.  He further expressed these concerns by posting pictures of the event on Facebook.  An advisory opinion by the NLRB reasoned that in posting them, he had “expressed the sentiment of the group,” and that the activity “was a direct outgrowth of the earlier discussion among the salespeople.”  For this reason, the NLRB concluded the activity was “clearly concerted”, that the employee had been discharged based on this activity, and that therefore the discharge was in violation of Section 8(a)(1) of the NLRA.***

These NLRA protections are essential.  They give employees very basic rights: the ability to at least discuss their workplace concerns with co-workers and management.  Such rights are important because when an employee is fired at work, and cannot demonstrate NLRA protection or discrimination by the employer on the basis of race, sex, age, etc., the employee is typically out of luck.  In the vast majority of states, the default employment relationship is at will, meaning that an employee can be fired for good cause, bad cause, or no cause at all outside of the aforementioned protections.  Some states have common law exceptions to the at will doctrine that try to limit the bad cause or no cause firings, but such exceptions are extremely narrow in scope.  As a result, the NLRA provisions are critical.

However, online forums such as Facebook may pose a serious threat to the countervailing interest of employers: the ability to operate a business without being unnecessarily restricted from disciplining or cutting ties with employees who damage their company’s reputation through the use of social media.  Judge Amchan stated that “discussing” employment conditions is protected “regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”  This broad language could easily be stretched to provide protection to employees in situations where a Facebook post could formally be viewed as a dialogue about work conditions, but the employees involved were primarily intending to embarrass or make fun of the employer.  Should NLRA protection turn on whether the Facebook post receives a “Like” or a few one-line lighthearted responses by friends who happen to be co-workers?

The NLRB report states that employees would go too far if their action took the form of an “opprobrious” public outburst to a coworker, or a comment that was extremely disloyal, reckless, or maliciously untrue.  However, the two cases that provide the authority for these limits were decided by the NLRB in 1979 and 1953, so social media cases are sure to rewrite the boundaries of how far an employee can go before his employer’s interests overrides his NLRA protections.  Stay tuned as this interesting set of issues will continue to challenge and redefine our interpretations of the National Labor Relations Act.

[***Interestingly, this case was later brought before an Administrative Law Judge, who released his decision last Wednesday.  The judge agreed that posting the photos on Facebook was protected activity.  However, he held that a separate Facebook post by the same employee was not protected and that this second post was the actual reason for his termination.  Thus, he was not reinstated.  In the second post, the employee posted pictures of a car in a pond, taken after a customer had accidentally driven a Range Rover at a dealership into the pond (the employee did not actually work at the Range Rover dealership, which was across the street from the BMW dealership that he worked at, but this dealership was owned by the same employer).  The judge held this Facebook post was not protected because “it was posted solely by Becker . . . without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment.”]

Though Cooper’s behavior was by all accounts egregious, his attorney’s conduct was pretty bad as well.  Before trial, the prosecution offered Cooper a favorable plea deal, recommending a term of years well below that which Cooper would have likely received if convicted at trial.  Cooper’s attorney advised him, however, to turn the deal down because, in his opinion, Cooper could not be convicted of the charged offenses, having shot his victim below the waist.  If that argument seems silly, it’s because it is.  The advice Cooper received was patently false, and as an appellate court later declared, “objectively unreasonable.”  Eschewing the plea deal, Cooper was convicted of assault and sentenced to a term of years greater than the minimum sentence he would have received under the proffered plea.  Cooper appealed, alleging ineffective assistance of counsel.  The Sixth Circuit overturned Cooper’s conviction and ordered the State to either re-offer the plea deal or release Cooper from prison.

Cooper’s case begs the following question: when a criminal defendant turns down a plea deal based on his attorney’s ignorance of the law and subsequently receives a harsher sentence after trial, can he seek to overturn his sentence, alleging ineffective assistance of counsel?

Perhaps not.  To make out a claim for ineffective assistance of counsel, a defendant must show that he was deprived of a “substantial or procedural right to which the law entitles him.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).  It is not clear what right Cooper was deprived of.  Cooper had no constitutional right to a plea bargain.  Indeed, even if such a bargain were reached, there was no guarantee that a judge would have accepted it.  In the plea-deal context, the prosecution merely recommends a sentence to the judge, who remains free to impose a harsher sentence if she so chooses.  It is a distinct possibility that Cooper could have accepted the deal only to have the judge impose the very same sentence he is now contesting.

The approach described above, however, may be overly formalistic.  Cooper points out that ineffective counsel can negate a guilty plea, as the Supreme Court ruled in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  Why then shouldn’t ineffective counsel negate a not-guilty plea?  The State would point to the fact that by pleading guilty, a defendant gives up his constitutional right to a trial.  By pleading not guilty, however, a defendant gives up nothing.  Rather, by pleading not guilty, a defendant is asserting his constitutional right to a trial.  But is that distinction satisfying?  Both Padilla and Cooper received bad advice.  Both Padilla and Cooper would have altered their decision had they been provided with competent advice.  Yet only Padilla gets a do-over?  The result may follow from existing precedent, but a tinge of unfairness remains.  The Supreme Court has the chance to rectify that unfairness by structuring a new rubric for ineffective counsel claims in the coming months.  Many are hoping that they do.

Recent years have seen a growing emphasis on the notion that America’s children should be spending more time in school. This is not surprising. Americans have grown familiar with the sound bite that, in comparison to their peers abroad, U.S. students are performing at mediocre levels. More and more Americans have been introduced to the concept of summer learning loss, and advocates of a longer school day have not shied away from reminding the country that the traditional school calendar was designed to accommodate a “nation of farmers,” as President Obama put it in 2009.

The drive to extend the school day has gained traction in a number of states. Massachusetts, for instance, has since 2005 been operating its trendsetting Expanded Learning Time (ELT) Initiative, a public-private program that aims to add 300 annual hours to the calendars of participating schools. Like comparable initiatives across the country, ELT does not place its faith exclusively in extra hours. The point of the program, rather, is to combine additional learning time with a systematic redesign of the structure and content of the school day.

Cost is a prime mover in nearly any discussion of expanded learning time. In what follows, though, I want to call attention to three other considerations that ought to be a part of the debate.

There’s the obvious question of whether learning time should be expanded for all students, or only for certain (underperforming) groups. Paul Reville—Massachusetts’s Secretary of Education—suggested in the Times’s debate that, considering current financial constraints, additional education time should be allocated “where it’s most needed: low-income children and those with special learning challenges like English language learners or students with disabilities.” Reville’s suggestion brings to mind a particular risk, namely, that any extension of the school day that applies only to underperforming students will have the effect of alienating particular groups of children. Indeed, one can imagine a situation in which “competent” children—often, those whose parents have the resolve and ability to invest in their kids’ academic success—depart from school at the traditional hour, leaving poor, non-native, and disabled students to wonder why they don’t get to go home as well. The point here is simply that any extension of the school day that does not apply across the board runs the risk of transforming in a negative way how certain children understand themselves and their place in the world.

Any policy that affects the length of the school day will also affect the opportunities and constraints that determine what families can and cannot do. At the most basic level, any extension of the school day will provide working parents with additional time to earn money while limiting the time they can spend in the company of their children. The school calendar plays an important role in structuring the social and economic life of the family unit, a fact that ought not to be neglected.

There is also the broader question of what an extended school day would say about the values that undergird American education. A longer school day might signal that the U.S. is serious about enhancing the prospects of its citizens, or that it is committed to providing poor students access to the same kinds of tutoring opportunities, enrichment activities, and social experiences that middle- and upper-class parents routinely purchase for their children in the market. But the gulf between saint and sinner is sometimes small, and a longer school day might also say something different. It might, for instance, reify the already entrenched view that standardized, institutional education counts for more than any sort of informal or autodidactic learning. A related concern is that—by choosing expanded learning time over other, more qualitative solutions to the deficiencies of our education system—we might betray an underlying lack of imagination. The idea that more schooling will enhance learning outcomes bears an awkward resemblance to the notion that additional money will amplify happiness; both points of view seem to reflect an unwillingness to work creatively with the material already at hand.

Photo credit: http://www.boston.com/news/local/massachusetts/gallery/082108_NO_Lynn_academy/

Unsurprisingly, several states have acted in the months since Snyder to enact legislation aimed at curbing the widely-reviled practices of the Westboro Baptists and similar organizations.

In Maryland, the state legislature has since enacted a buffer zone of 100 feet around funerals; more than 40 states now place some kind of geographical restrictions on funeral protests, with buffer zones ranging from 100 to 1000 feet.

In New York, Governor Andrew Cuomo last week signed two related laws intended to strengthen protections against disruptive protests. The first, to take effect early in 2012, triples the buffer zone around religious services, funerals, burials or memorial services to 300 feet from its original extent of 100 feet. The second, potentially more problematic, bill authorizes local governments throughout the state to erect buffer zones of up to 1000 feet and to institute a permit process for protests.

The State of Missouri saw its own protest restrictions ruled unconstitutional in federal court last fall, and has doggedly responded in the wake of Snyder by passing a new set of restrictions strongly similar to the invalidated old ones. The Missouri laws impose time limitations in addition to geographical barriers: protests are restricted for a period between two hours before and two hours following a funeral. The California legislature had recently considered a similar piece of legislation – S.B. 888 – before Governor Jerry Brown vetoed it last week, claiming that his hands were tied by Snyder.

This newest round of state legislation has already drawn protest from civil liberties advocates – ACLU chapters have already threatened to challenge the New York and Missouri laws – despite the general popularity of such restrictions. Because the Supreme Court failed to address the reasonableness of state statutory schemes in Snyder, the matter remains unsettled. However, the Court’s First Amendment jurisprudence does provide some general guideposts, and the state restrictions are vulnerable to constitutional challenge on two basic grounds.

The first potential criticism of funeral protest laws is that they lack content-neutrality. It is well-established that even a facially neutral statute will fail to pass constitutional muster if the evidence indicates that the “government has adopted a regulation of speech because of disagreement with the message it conveys.” (Clark v. CCNV). The government must have an independent basis, “justified without reference to the content” of the speech, to advance its own interests by regulation. Protesting groups may well argue, as the Westboro Baptists have consistently argued, that demonstration regulations are merely a pretext for restricting their particular viewpoint. As the court has long recognized and the Snyder holding reaffirmed, however, state and local governments have a significant interest in upholding public order and preventing disturbances; a facially neutral regulation which advances the government’s interest in public order can thus be content neutral even if its burden, in this case, happens to fall primarily on hostile demonstrators rather than favorable ones.

There may be a stronger argument, however, that some state restrictions are vulnerable to charges of unconstitutional as-applied content discrimination.  Statutory permit schemes in which local officials are afforded “unguided discretion” in their decision making have historically been subject to abuse (see Forsyth City v. Nationalist Movement). If New York’s scheme, for instance, leads to a demonstrable pattern of local officials’ denying permits to controversial or anti-military groups, then it is unlikely to survive constitutional challenges.

Even if a government restriction is content neutral, of course, it must satisfy two further criteria: (1) it must be narrowly tailored to serve a significant government interest, and (2) it must “leave open ample alternative channels” for the expression (Ward v. Rock Against Racism). With regard to the first point, it seems clear that the more extensive geographic buffer zones have a tenuous, at best, connection to the government’s legitimate interest in preventing disorder. At least in the past, courts have agreed. In striking down Missouri’s first set of anti-protest laws last year, the Eastern District of Missouri found that the government had failed to meet its burden of showing that its regulation was “narrowly tailored.” Furthermore  the Snyder court noted, the Westboro protesters at the Phelps funeral almost certainly would not have fallen within the scope of a narrowly drawn regulatory scheme. There, the protesters were almost entirely out of sight during the funeral, and there was never any serious threat of a disturbance to the service itself. Phelps’s father did not learn of the hateful content of the picketers’ messages until after the event.

Perhaps more importantly, the potent mixture of time and place restrictions implemented in regulations like those of Missouri may well fall short of the “ample alternative channels” requirement. Shepherding protesters into “free speech zones” out of sight and earshot, and forcing them to refrain from protesting during the targeted event itself, can substantially dilute their ability to deliver their message; other means of protest may lack the immediacy and impact that they desire. In his Snyder dissent, Justice Alito made it clear just how little sympathy he felt for predicaments of this type: “They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions …” etc. The weight of the Court’s precedent, however, weighs against any regulation which effectively functions as a total-medium ban: “No one is to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” (Schneider v. State).

Much of the political discourse on this issue has focused, understandably, on the privacy and dignity “rights” of bereaved families rather than the speech rights of extremist fundamentalists. As a legislative sponsor of the Missouri bill put it, protests threaten the “right to be mourned and remembered in an environment of peace, respect and compassion.” An approach to defending funeral protest laws by focusing on the special rights of the bereaved is certainly not inconceivable, but it has been seemingly foreclosed by Snyder. “Captive audience” doctrine has limited scope—the Court has recognized special grounds for special protection for residential privacy (Frisby v. Schultz), but it has more generally held that the Constitution affords no protections against being offended in a public place. Seven Justices found in Snyder that captive audience doctrine had no application to the funeral protest at issue, despite the intimacy and emotional significance which set a funeral apart from nearly every other “public” ceremony.

As long as the government’s interest in regulating funeral protests is characterized as primarily the maintenance of public order—and other administrative functions like preserving access to public areas—the scope of acceptable protections will be limited. It seems fair to say that while narrow geographic perimeters like Maryland’s 100-foot buffer zone may well survive, the more sweeping geographical and temporal restrictions proposed or passed in recent months will have difficulty standing up to courts’ scrutiny.

The Emergence of Super PACs

Political Action Committees (PACs) are electioneering vehicles. There are different types of PACs, and this article focuses on those created to independently advocate the election or defeat of a candidate, or passage or defeat of a ballot issue. Until recently, such PACs were subject to contribution constraints. That is, they were only permitted to raise money in discrete $5,000 increments. No more. A series of legal decisions has transformed independent expenditure PACs into super PACs, entities permitted to solicit unlimited sums. The question, then, is how we arrived at a place where organizations can aggregate immense capital by fundraising from a small class of wealth contributors.

Predictably, the legal road to super PACs originates with the Court’s 2010 decision in Citizens United v. FEC. The road is short—it terminates just two months later at the D.C. Circuit decision in Speechnow v. FEC. In Citizens United, the Court departed from norms of judicial restraint by transforming an as applied challenge into a facial one. Rather than issuing a narrow ruling, the Citizens United court extrapolated its views on the First Amendment rights of non-profit corporations to for-profit corporations and unions. In doing so, the Court struck down a portion of FECA §441, the portion that categorically barred corporate and union entities from pursuing direct advocacy in our elections. Going forward, corporations and unions were permitted to execute independent expenditures, which FECA defines as:

Any expenditure “expressly advocating the election or defeat of a clearly identified candidate” that is “not made in concert or cooperation with or at the request or suggestion of [a] candidate, the candidate’s authorized political committee, or their agents, or a political party committee or its agents.” 2 U.S.C. § 431(17)

The Citizens United decision, though striking, did not make PACs super. Corporations and unions are distinct from PACs, which already enjoyed the opportunity to pursue independent expenditures. The decision, however, did undermine the legal principles used to support contribution limits.

Contribution limits were established in FECA and upheld in the Court’s seminal campaign finance case, Buckley v. Valeo. In Buckley, the Court affirmed the constitutionality of contribution limits against strict scrutiny. It did so because of the government’s compelling interest in avoiding corruption, or the appearance thereof. Later, in Austin v. Michigan Chamber of Commerce, the Court would layer support for regulation by affirming another compelling interest—limiting the distortionary impact that independent political entities often have on political dialogue.

 Citizens United initiated the process of deconstructing these government interests. As the Speechnow Court noted, Justice Kennedy rejected the anti-distortion interest’s continued vitality in Citizens United. Having dispatched with one of the legal pillars used to support government regulation of campaign finances, Justice Kennedy moved to the corruption interest. There, the Court held that because independent expenditures were, by definition, independent, no corrupting influence could attach to their activity. It was that language that the Speechnow Court seized to invalidate contribution constraints on independent expenditure committees. Writing for the Speechnow majority, Judge Sentelle said, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.” As a result, contribution limits fell, and PACs were permitted to begin raising unlimited sums from individual donors.

The Impact of Super PACs

 Every Presidential contender is backed by a super PAC. President Obama has Priorities USA, Mitt Romney has Restore Our Future, and Rick Perry has—among others—Make Us Great Again. Michelle Bachman, Ron Paul, and John Huntsman are all supported by super PACs; and these fundraising vehicles are emerging at the Congressional level too, in defense of officeholders like Orrin Hatch. Perhaps candidate super PACs are valuable, insofar as they lend security: When facing votes that are important to interests with own super PACs—interests capable of raising unlimited funds to undermine a reelection bid—an official’s knowledge that entities with similar resources will mobilize support may help that official make a principled decision. Still, this benefit lends all the comfort of a nuclear arms race.

Enabling super PACs left lawmakers more hostage to private interests. It also reintroduced the appearance of corruption, and the threat of actual corruption. This is so because our coordination rules are functionally irrelevant. Again, they only prohibit independent entities from acting  “in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.” Absent explicit communication, cooperation has been difficult to establish. To the extent that staffers have, without consequence, migrated from official campaigns to super PACs, the coordination guidelines create an illusory boundary between official and independent electioneering entities. As Paul Blumenthal has noted, defections of this sort have occurred across the Presidential field. Former White House staffer and candidate Obama advisor Bill Burton heads a super PAC supporting the President. Former Romney campaign aide Steve Roche’s move to Restore our Future has also been well chronicled. The super PACs supporting candidates Perry and Bachman employ former staffers.

Though these circumstances raise suspicion, the FEC is unlikely to investigate without more. As a result, the contribution constraints erected by Congress and affirmed in Buckley have little effect. Large donors can make their $2500 (per cycle) contributions to a preferred candidate, then send $1,000,000 to a super PAC that supports that same candidate. The ability to raise money in large increments may create the appearance that a few wealthy donors have effectively captured candidates. Worse yet, the necessity of securing large contributions may actually ensure that candidates pursue donor interests once in office.

The Legal Status of Super PACs

 Though the Supreme Court has not spoken on the contribution limits invalidated in Speechnow, the Court’s silence is no victory for super PAC opponents. The silence is attributable to the FEC, which not only decided to forego review on Speechnow, but also authored an advisory opinion extending the decision’s reasoning. Absent DOJ action, the FEC’s position precludes other circuits from assessing Speechnow’s logic. As a result, those who fear super PACs are left with two options: pressuring President Obama to nominate reform minded commissioners to the FEC, or seeking redress in Congress.

Wow.  This post isn’t going to address arguments for or against affirmative action programs.  Readers can find that elsewhere.  Instead this post will focus on the underlying assumption driving the students’ bake sale – that people in this country no longer face barriers to entry for higher education, jobs, etc., based on their race or gender.  First, this assumption is wrong.  After facing litigation for sex discrimination, even Wal-Mart seems to admit that women don’t have equal opportunities in business simply because they are women.  There’s also been much debate over the neutrality of standardized college admissions tests, like the SAT.  But more importantly than the fact that the assumption is wrong, is that its existence has infected United States race and sex equality jurisprudence, and prevented gains in real equality.

The most recent example comes just this year, in Wal-mart v. Dukes.  Writing for the majority, Justice Scalia addressed plaintiffs’ claims that local managers’ discretion had led to sex discrimination in promotion decisions by asserting that “left to their own devices most managers in any corporation – and surely most managers in a corporation that forbids sex discrimination – would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.”  It’s definitely true that not all managers discriminate in promotion decisions.  However, to start with the assumption that discrimination only occurs in outliers, in one in a million managers who openly tells someone “I’m not promoting you because you’re black/hispanic/female/<insert race, ethnicity, nationality here>,” is to already have lost the battle.  The plaintiffs in the case presented several pieces of evidence showing regional and national disparities between women and men in company promotions.  Yet, Scalia asserted that without knowing whether it was 95% of managers who discriminated or .5% of managers, he was going to give the culture of Wal-Mart the benefit of the doubt.  But, bias and stereotypes unconsciously affect many of the judgments people make about members of other races and genders.  (CR-CL published a great article on unconscious bias in 2005.)  Just because discrimination is no longer always explicit, doesn’t mean systemic discrimination has been eradicated.

So why do judges and others in the United States cling so tightly to the idea that discrimination is no longer mainstream?  With this country’s history of – and contemporary – problems of discrimination and subordination, how can one truly believe we have achieved real equality?  Perhaps no one does believe it.  Instead, it might be that to admit, through no fault of their own, not everyone has the same opportunity to attend higher education, receive job promotions, or get hired in the first place, is to admit that the United States may not be the place where folks can “pull themselves up by their own bootstraps.”  How disruptive it would be to the entire notion of the US as the  “land of opportunity” to admit that there is systemic discrimination preventing advancement.  But it needs to happen.  If we’re ever going to adopt an approach to equality law that truly promotes equality, our jurisprudence must recognize the systemic discrimination that still exists.  It’s like addiction – the first step to recovery is admitting you have a problem.

The United States Census is reporting in an upswing in both the number of same-sex couples and the number of same-sex couples who indicated that they are married.  The Washington Post reports that the number of same-sex couples identified by the Census increased 80 percent over the 2000 census, and 1 in 5 of those 646,000 couples now report that they are legally married, even in states where there marriage would not be legally recognized.  An independent study found that around 10 percent of same-sex couples did not identify themselves on the census, and many researchers believe the number of married couples is almost certainly higher now with New York becoming the latest state to legalize same-sex marriage.

Rhode Island is set to become the latest state to enact a DREAM Act, allowing undocumented immigrants to attend state universities at in-state tuition rates.  Politico reports that Rhode Island out-of-state tuition is nearly three times the in-state rate.  Rhode Island joins 11 other states in offering the option to undocumented immigrants, including Texas, home state of Presidential candidate Rick Perry, and Maryland, discussed previously on this blog.

Salon.com has published an excerpt from an upcoming posthumous book by Harvard Law School Professor Bill Stuntz, The Collapse of American Criminal Justice.  In the excerpt, Stuntz indicates that both the country’s incarceration rate and the crime rate are at near historic highs, indicating that something in the system is not working.  Stuntz believes that at the root of the problem are the collapse of the rule of law, the rampant discrimination against minorities, and the pendulum effect from an overly lenient justice system in the middle of the last century.

In the New Republic, Harvard Law School Professor Carol Steiker and University of Texas Law Professor Jordan Steiker argue that despite the recent tragedy in the case of executed Georgia inmate Troy Davis, death penalty opponents are doing better than they think at moving the country toward abolition.  They point to the increasing rarity of executions in the United States, recent political changes, and reluctance to continue the practice by some members of the Supreme Court.  However, at Beacon Broadside, David R. Dow of the University of Houston Law School argues that Troy Davis is just another poster boy in a movement that has not seen much change in opinion in the last ten years.

On Tuesday September 27th, 2011, at Harvard Law School, the author is joined by Professor David Barron and Professor Gerald Frug of Harvard Law School and Professor Richard Ford of Stanford Law School to discuss whether local governments are powerless instrumentalities of states or whether they should be allowed to pursue constitutional claims on behalf of their constituents.

Follow their discussion as it happens in the live blog below.

This ‘woman-friendly’ initiative comes just months after the Supreme Court’s June 2011 ruling in the nearly decade-long battle for class certification for nearly 1.5 million women currently and formerly employed by Wal-Mart. The women sought class-certification for claims that Wal-Mart’s corporate culture led to company-wide bias and discriminatory decisions over pay and advancement opportunities for female employees. However, in an opinion by Justice Scalia the Court decided 5-4 to reverse the 9^th Circuit’s decision to grant certification, stating inter alia that the class lacked common questions of law or fact.

Lyle Denniston of the SCOTUS blog argues that this decision has two major implications: first, for the women bringing and affected by the suit. All the women wishing to recover must now bring individual suits against Wal-Mart, a highly improbable option given the low expected recovery in each case on its own. Second, Wal-Mart v. Dukes will make it substantially more difficult for groups of workers to band together against large, powerful employers: “the bigger the company, the more varied and decentralized its job practices, the less likely it will have to face a class-action claim,” Denniston writes.

The ripple effects of the decision were felt just one month later when a federal judge in California cited Wal-Mart v. Dukes is its decision to decertify a class in an action brought by Dollar Tree store workers against their employer. In the wake of the decision Wal-Mart has faced protests and renewed vows of support for the women employees by workers’, women’s and religious organizations.

While Wal-Mart maintains that the new women-friendly initiatives have no relation to the Dukes case, the announcement is suspiciously reminiscent of the company’s 2005 Sustainability Program that was adopted following massive assaults on its labor practices and environmental record.

Wal-Mart is acutely aware of the affect organizations like the women’s and labor groups have on public opinion. In 2009 The New York Times reported on a confidential memo prepared for the company around the time of their adoption of the Sustainability Program, five years prior, by McKinsey & Company. The report found that two to eight percent of Wal-Mart consumers surveyed had stopped shopping at the chain because of negative press. Wal-Mart executives and Wall Street analysts, The Times reports, began referring to the problem as “headline risk.” Incidentally, more than half of Wal-Mart’s 200 million customers are female, creating a great potential loss to “headline risk” associated with this summer’s ruling.

Motives aside, steps taken by Wal-Mart as the nation’s largest company can result in major change. Their massive size and thus massive influence over the industry was put to use earlier this year when the company teamed up with First Lady Michelle Obama, pledging to reduce sodium and sugar and eliminate trans fats in its packaged food products. Given its market share, this feat was easily implemented by the massive chain. Humanitarian group CARE USA, which began working with Wal-Mart in 2009 on a project with Bangladeshi and Indian workers, notes that such collaborations are appealing specifically because of Wal-Mart’s role as an industry leader. Their actions not only have their own enormous impact, but the potential to “shape what others do in the field.”

While the initiative presents potential for positive change, it also diverts attention from the issues presented by the plaintiffs of Dukes, who are now in a more vulnerable position than when they filed their suit ten years ago. Janet Shenk, former AFL-CIO official now with the Panta Rhea Foundation, points out that “[i]t’s not about who owns the factory…there’s no evidence that factories and businesses owned by women treat their employees better or have better concern than factories and businesses owned by men.” Additional vows to support the training of women in factories and farms that serve as Wal-Mart’s suppliers, to donate $100 million to causes supporting women’s economic development and to ask vendors and services to increase gender and minority representation on their Wal-Mart accounts redirect focus from Wal-Mart’s own domain of regulation of labor conditions to those of suppliers, charities, and vendors.

In other words, Wal-Mart’s “women-friendly” initiative does nothing to address the concerns presented by Dukes and the other 1.5 million “women of Wal-Mart.” The issue presented in Dukes did not involve the number of women entrepreneurs profiting off business relationships with Wal-Mart or the misdeeds of suppliers, but rather concerned the manner in which the company’s own employees were compensated and respected as valued members of the corporation. While this strategy indicates that Wal-Mart certainly anticipated the “headline risk” associated with Dukes, this tried and true public relations tactic cannot erase decades of corporate-wide discriminatory practices toward women.

The decision, Glik v. Cunniffe (1st Cir. 2011), had its origins in a 2007 incident in the Boston Common. Simon Glik was walking in the park when he noticed a disturbance surrounding three police officers making an arrest. After another bystander protested the amount of force the police were using, Glik approached and started to record the scene on his cell phone, which captured both video and audio. After asking Glik if he was making an audio recording, the police arrested him for violating Massachusetts’ Wiretapping Statute, which prohibits the “secret use” of recording devices by private individuals. Since Glik’s actions were anything but covert, the wiretapping charges were dismissed; two other charges of “disturbing the peace” and “aiding in the escape of a prisoner” — both likewise unfounded — were dismissed as well.

The case found its way to the First Circuit after Glik pursued a § 1983 civil action against the officers and the officers moved to dismiss on grounds of qualified immunity. In affirming the district court and denying the officers’ claims, the court had occasion to emphasize the extent to which Glik’s actions were firmly within his constitutional rights. Relying on the “two-pronged” analysis of qualified immunity claims it had enunciated in its 2009 decision in Maldonado  v. Fontanes, the court found that (1) Glik had successfully alleged a violation of his constitutional rights, and (2) the right in question was a “clearly established” one.

The court framed the First Amendment issue as a “fairly narrow” one: the “right to videotape police carrying out their duties in public.” Starting with the basic principle of Stanley v. Georgia that “the  Constitution  protects  the  right  to receive information and ideas,” the court went on to note two important reasons to reaffirm that the recording of public officials—at least when they act in public—lies well within the zone of the First Amendment’s protected activities.

First, the Glik court noted that, given the First Amendment interest in preventing government from “limiting the stock of information from which members of the public may draw” (First Nat’l Bank v. Bellotti), such supervision by members of the public can serve as a valuable check on the government’s “incentive to repress opposition.” This is especially true in the case of police officers, who are granted a degree of discretion to restrict liberty which often goes unrestrained by the system’s more formal mechanisms of review.

Second, the court relied on the commonsense notion that technological change has decentralized and democratized press freedoms: “The First Amendment right to gather news is, as the [Supreme] Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press.” Reaching back to the landmark language of Branzburg v. Hayes, the court explained that, for a private citizen as well as for a newspaper, there exists an undeniable right to gather information “from any source within the law.” This reasoning represents a salutary extension of the logic underlying such past Supreme Court cases as Richmond Newspapers v. Virginia (1980), in which the Court recognized the special nature of the press and public’s right of access to the “criminal process.”

The First Circuit in Glik found that the right to record police officers publicly, and the First Amendment rationales underlying it, were well settled by precedent; the appellant police officers could only point to two arguably conflicting cases–one of which was unpublished and both of which were decided after Glik’s arrest.  Without passing on the validity of the Massachusetts Wiretapping Statute, then, the First Circuit nonetheless found that a reasonable police officer should have known that he was infringing Glik’s “clearly established” First and Fourth Amendment rights by interrupting his recording and arresting him. In limiting the scope of its holding to overt and public recording — it praised the Boston Common as “the apotheosis of a public forum” — the court left the door open to claims of reasonable “time, place, and manner” restrictions in borderline cases.

As several commentators have noted, the Glik decision may have some significance in circumscribing government restrictions on recording not only in Massachusetts, but in Illinois as well. Currently, Massachusetts and Illinois are notable in defying the emerging nationwide consensus by employing wiretapping or “eavesdropping” laws to prosecute citizen recordings of police action. While the First Circuit did not overturn the Massachusetts statute — nor could it have on the narrow issues presented to it — the clarity of the ruling may help embolden future arrestees in Glik’s situation and further deter police from more egregious violations. Future cases of covert, or arguably covert, recording — such as the case arising from a student’s filming of Boston University police action during a political protest in 2006 — would still be subject to prosecution, but Glik at least enunciates a clear constitutional right against which any asserted government interest must be balanced.

In Illinois, whose Eavesdropping Statute as currently written bans audio recording without the consent of all parties involved, Glik has seemingly already had some effect. Only days after the Massachusetts ruling, an Illinois District Court reversed the conviction of a man who had been sentenced to 75 years in prison for five counts of eavesdropping violations in recording the police. Noting that the statute’s application to such a case was a clear departure from the privacy-protecting goals of the legislation, the court also found that its application unconstitutionally “impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information.” As the Reporter’s Committee for Freedom of the Press noted, the court also referred to Glik as “persuasive authority.”  The Seventh Circuit in Chicago also heard arguments this month in ACLU v. Alvarez, in which the ACLU is seeking a declaratory judgment that the Illinois statute is categorically unconstitutional as applied to citizens’ audio recording of the police. The appeal to the Seventh Circuit follows a District Court ruling, handed down by Judge Suzanne Conlon before Glik  was announced, which perplexingly found a lack of any “authority that the First Amendment includes a right to audio record.” ACLU v. Alvarez (N.D. Ill 2011).

In comments at the argument of ACLU v. Alvarez before the Seventh Circuit, Judge Posner expressed his worries about the possible runaway consequences of weakening the Illinois statute; “there is such a thing as privacy,” he noted. Though there is, of course, a real constitutional interest in protecting all citizens from eavesdropping, wiretapping, or surreptitious recording — whether by other private citizens or by the government — Posner’s apparent concerns fail to appreciate the extent to which Illinois (and Massachusetts) have been outliers in using anti-eavesdropping laws as a weapon against public monitoring of the police. The overt use of recording equipment in a public place is a far cry from the kinds of intrusive media “snooping” on private property to which courts have denied First Amendment protections in the past. Making it clear that holding police officers accountable through observing and recording their actions is a core constitutional right — as the First Circuit did in Glik and the Seventh Circuit has an opportunity to do in ACLU v. Alvarez – can help to clarify distinction between the universal interest in privacy and local government’s interest in shielding itself from scrutiny while acting in full public view. As Justice Burger – himself no staunch civil libertarian – once noted: “It is important that society’s criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing the people to observe it.” (Richmond Newspapers v. Virginia).  Police treatment of citizens during and after arrests is as much a part of the “criminal process” as is a trial; it is only appropriate to recognize that citizens have a right to monitor overt police activities as much as they have a right to monitor public criminal trials. 

In the U.S., probably not.  In DeShaney v. Winnebago County, the Supreme Court held that the failure of social service workers to protect a child from his violent father did not breach any substantive constitutional duty.  The child had no substantive constitutional right to police protection.

Sixteen years later, the Court extended its holding in DeShaney, ruling that a police department’s failure to enforce a protective order did not violate the procedural rights of the order’s recipient.  In Town of Castle Rock v. Gonzales, Jessica Gonzales tried desperately to get local police to find and arrest her estranged husband, who had violated a protective order by kidnapping their young children.  Even though state law specified that officers “shall…enforce” temporary restraining orders, police declined to pursue Gonzales’s husband, who subsequently murdered the couple’s three children.

The Court ruled that the restraining order’s “shall…enforce” language did not endow Gonzales with an entitlement to police protection.  Writing for the majority, Justice Scalia stated, “A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”  Gonzales’s contention that “mandatory” meant “mandatory” was therefore unfounded.

Though Jaycee Dugard’s lawsuit seems to be a long shot in the U.S., the Christian Science Monitor points out that international tribunals could be more sympathetic to Dugard’s claims.  Indeed, after Gonzales lost her Supreme Court case, she pursued a petition with the Inter-American Commission on Human Rights, claiming that the U.S.’s failure to more aggressively protect her and her children from domestic violence violated international norms of human rights.  Last month, the Commission agreed, labeling what happened to Gonzales a human rights violation.

The IACHR’s decision calls into question American conceptions of fundamental rights, which have long eschewed affirmative entitlements to governmental aid.  In the U.S., there is no federal obligation to fund abortions or other medical services (Harris v. McRae) or provide adequate housing (Lindsey v. Normet).  Reasonable minds can disagree about whether the American system is a good thing; but the IACHR’s opinion suggests that, at least in the eyes of the international community, it is a weird thing.  Jaycee Dugard will likely not prevail in her suit against the U.S. government.  But the question remains: are we okay with that?

In 2010, the Australian Government announced the appointment of an expert panel to explore and present to government options for amendments to the Australian Constitution with a view to increase constitutional recognition of Indigenous Australians. However, the government did not proscribe whether the amendments should be preambular and symbolic, or textual and substantive. As a result, much of the debate regarding possible amendments has focused on whether any change should or should not grant particular or general civil rights to Indigenous Australians.

U.S. jurisprudence has dealt with constitutional rights since the enactment of the U.S. Constitution. In contrast, it was explicitly decided by the framers of the Australian Constitution to not include a similar Bill of Rights, although the American notions of judicial review, separation of powers, and federalism were incorporated. Accordingly, throughout Australian history courts have rarely acted to protect civil rights on the basis of constitutional interpretation. Any rights protections have either been based in legislation (often incorporating international law into domestic law) or on traditional common law presumptions.

I would argue that this method of rights protection has been largely inadequate to protect Indigenous Australians from breaches of their civil rights, particularly in regards to equal protection and racial discrimination. The federal government’s enumerated powers include the power to pass laws “with respect to… the people of any race for whom it is deemed necessary to make special laws.” s.51(xxvi). The High Court of Australia has read this provision as meaning the legislature may pass laws both for the benefit and to the detriment of Indigenous Australians or other races.  See Kartinyeri v Commonwealth (1998) 195 CLR 337). Former High Court Justice Michael Kirby has stated that this places Australia in the unenviable position of being the only country in the world that explicitly allows the legislature, under its constitution, to pass racially discriminatory legislation.

The Racial Discrimination Act 1975 (Cth) (RDA) incorporates key elements of the International Convention for the Elimination of All Forms of Racial Discrimination into Australian law. However, without constitutional force, the legislature may suspend the operation of the RDA if it wishes to pass otherwise racially discriminatory laws. While convention for a period restrained the legislature from doing so, in 2007 Parliament suspended the operation of the RDA in passing racially discriminatory legislation in the Northern Territory that, among other things, restricted the payment of welfare to and compulsorily acquired communal title from Indigenous people living in that area.

In conclusion, it may be worthwhile for the expert panel to examine the operation of the Equal Protection Clause of the US Constitution and to consider whether a similar provision should be inserted into the Australian Constitution so that legislation based on racial classifications is held to strict scrutiny.

While the world watches and waits for news on Davis, Lawrence Russell Brewer was put to death in Texas.  It’s not particularly surprising that an execution in Texas didn’t raise an eyebrow.  At a recent Republican presidential debate, just a statement from the moderator on the enormous number of people executed in Texas under Governor Rick Perry drew a cheer from the crowd.  Brewer, though, should be getting more attention than he is.  Not because he deserves any attention for who he is.  Brewer is one of the men who, in 1998 in Jasper, Texas, dragged James Byrd, Jr. behind his truck.  I was in Texas, in the summer before 9th grade, when that senseless act was perpetrated against Byrd.  You hear of something so hateful, so violent, and it’s hard not think, “These are the kind of people we have the death penalty for.”  Brewer had no final statement before he was executed.  The sheriff who investigated the scene of Byrd’s remains scattered down the bumpy asphalt road said, “One down and one to go,” referring to Brewer’s accomplice, John William King, also scheduled to be executed.

Brewer’s execution deserves more attention than it is getting because of who didn’t want it to happen.  A million people around the world have signed a petition demanding clemency for Troy Davis, many of those because we believe he may be innocent.  There are no such doubts in the case of Lawrence Russell Brewer.  There is also no doubt that the crime he committed is exactly the type of heinous crime to which the death penalty is supposed to apply.  As easy as it is to hate Brewer, to hate the terrible crime that he committed, to hate his hate, his victim’s son, Ross Byrd, doesn’t want to see him die.  ”You can’t fight murder with murder,” Byrd said Tuesday.  Byrd was joined in his opposition to Brewer’s execution by civil rights activists Dick Gregory and Martin Luther King III.

Troy Davis was pronounced dead at 11:08 Eastern Time.  Another black man executed for the death of a white victim, another execution with serious doubt, another round of delay giving the family hope that maybe this time justice will be served.  Another victim of the death penalty.

But then my mind goes back to the crime committed by Lawrence Russell Brewer.  While walking along the road, James Byrd, Jr. was offered a ride by the three men riding in the pickup truck.  ”They beat him, and then chained his legs to the back of their pick-up and dragged him for several miles, the report said. By the time they stopped, his head and arm had been ripped off. They left his body on the country road…[P]rosecutors said Brewer and King were prison buddies bent on starting a racist organization in Jasper and ‘intended the killing to be a signal that his (King’s) racist organization was up and running.’”  Isn’t the death penalty what this Brewer deserves?  Shouldn’t we feel good about giving this man the harshest punishment that our society allows?

Yet, I don’t feel good.  I think there are two reasons for that.  First, is the overwhelming conclusion that the death penalty is racist and unjustly applied.  Studies show that the race of the defendant an/or the race of the victim play a key role in deciding who receives the death penalty, and the fact that most prosecutors seeking the death penalty are white calls into question their ability to see and respond to these trends.  But this can’t be the reason that Brewer’s execution feels wrong to me.  Brewer is white, and perpetrated a vile hate crime against James Byrd, Jr., who was black.  Brewer received the death penalty under a Texas statute that enhances sentences for hate crimes.  Troy Davis may have died because he was black; Lawrence Russell Brewer did not.

The second reason the death penalty feels wrong is that I know there is always the possibility of executing an innocent person.  Since the death penalty was reinstated in the United States in 1973, well over 100 people have been released from death row because of evidence of their innocence.  That is well over 100 people who, were it not for the decades long appeals process and delay in performing executions, would have been murdered by the government for crimes they did not commit.  Yet still you here people assert that the problem with the death penalty is that we don’t execute fast enough.  Though Rick Perry sleeps well at night confident that it hasn’t happened in Texas, innocent people have been executed in the United States and will continue to be executed as long as the death penalty exists.  Troy Davis may have been the latest innocent victim of the death penalty.  But Lawrence Russell Brewer was not.

Why then can I not sanction Brewer’s execution?  There is no doubt about his guilt and no question that the crime is among the most vile acts of which a human being is capable.  There has to be another reason the death penalty is wrong.

Ross Byrd said, “You can’t fight murder with murder.”  Maybe the death penalty is just wrong because it’s the death penalty.  Maybe every execution, even those like Brewer’s, are tainted by the filth of knowing that the United States is administering a punishment that is racist and can exact the ultimate penalty from innocent victims.  Maybe, regardless of all that, it just feels wrong to punish murder with murder, wrong for the state to do what it is saying is the highest crime if committed by others.

I know why I felt the emotions I felt watching the story of Troy Davis unfold tonight.  I felt joy when I first of the stay, because I thought, finally, justice may be done for this man.  I felt intense sadness at the news of his final execution, because I felt, along with millions around the world, powerless to stop the system from going forward and taking a potentially innocent man’s life.  I had watched his sister and his nephew talk about their fight, hopeful that maybe they had finally won it, only to have that hope smashed and the execution go forward.

I’m not as sure why I feel so wrong about the execution of Lawrence Russell Brewer, but I know I wish it hadn’t happened.  And imagine that feeling will resurface with every execution from now on.  If I can’t feel confident that Brewer should be executed, I can’t imagine a situation in which I would.  I also know I am not alone.  Millions of people who hoped, and petitioned, and protested, and fought for justice for Troy Davis are now left with the harsh realization of the injustice of the death penalty.  We are Troy Davis, and we will be every victim of the death penalty from now on.

The 15^th amendment obliges Congress to effectuate its promise that no citizen be denied the right to vote on the basis of race. Section 5 of the 1965 Voting Rights Act is a product of that obligation.  The provision requires covered jurisdictions to seek approval for modifications to their electoral processes. This preclearance may be pursued through the Department of Justice or a three judge panel at Washington D.C.’s Federal District Court.

Claimants in Shelby County v. Holder asserted that Section 5 imposes unconstitutional burdens on covered jurisdictions. Congress, they allege, exceeded its power in reauthorizing the provision in 2006. Further, Shelby contends that Section 5’s scope is too expansive. The County argues that the coverage formula established in Section 4(b)—which is used to determine which jurisdictions must abide Section 5—is unjustified. On this view, progress towards racial voting parity renders the formula’s reliance on data from 1965 anachronistic.

 Judge Bates’ Analysis

Judge Bates applied heightened scrutiny in evaluating these claims, asking whether Sections 5 and 4(b) were “congruent and proportional” responses to discriminatory voting patterns. Ultimately, the George W. Bush appointee concluded they were. Dispatching with the first claim, Judge Bates noted that Congress “preserved all of Section 5’s traditional limiting features when it reauthorized Section 5 in 2006.” Those features include constraining the provision’s geographic scope, specifying a termination date, and specifying a termination mechanism—bailout procedures. Notably, the Attorney General has consented to every request that a jurisdiction be permitted to bailout of preclearance requirements since the bailout procedure was liberalized in 1982. That willingness to grant leave from preclearance suggests Section 5 is more narrowly tailored.  Additionally, Judge Bates referenced two Congressional determinations in support of his finding that Section 5 was a congruent and proportional response to voter discrimination: 1) that preclearance imposes minimal administrative costs on covered jurisdictions; and 2) that Section 2 does not provide adequate means of preventing voter discrimination.

In dispatching with the claim that Section 4(b) relied on anachronistic data, and was therefore rendered unconstitutional, Judge Bates said the following:

The specific election years that have come to be used as “triggers” for coverage under Section 4(b) were never selected because of something special that occurred in those years; instead, they were chosen as mere proxies for identifying those jurisdictions with established histories of discriminating against racial and language minority voters.

Quoting Stanford Law Professor Pam Karlan, Judge Bates continued: “Notwithstanding the passage of time since the coverage formula was last updated, ‘[t]he identity of the jurisdictions with that pervasive history and contemporary voting discrimination has not changed.’” Bates then parsed the record that Congress developed when considering reauthorization in 2006, concluding that sufficient disparity between the voting rights that minorities enjoy in covered and uncovered jurisdictions remains significant.

Going Forward

Judge Bates’ analysis puts Section 5 on firmer ground. That he felt compelled to reach the merits on this facial challenge, however, suggests that Shelby is destined for the Supreme Court. In N.A.M.U.D.N.O. v. Holder, the Supreme Court signaled its concern with Section 5. Writing for the majority, Justice Roberts noted that “[t]he Act’s preclearance requirements and its coverage formula raise serious constitutional questions.” In N.A.M.U.D.N.O. the Court invoked the constitutional avoidance canon to resolve the claim on statutory grounds; but if Judge Bates ruled correctly on standing, no statutory resolution is likely in Shelby because no bailout is sought. Absent bailout, the Court will need to construct a creative rationale to avoid reaching the merits of Shelby’s claim—though that claim could be narrowed to an as applied challenge. Whether engaged facially or as applied, a ruling on the merits of Section 5 is likely to prove legally and politically contentious. Eyes will narrow on Justice Anthony Kennedy.

The opinion is here, further coverage is here and notes that plaintiffs have already stated their intent to appeal.

This year in May, Georgia passed “one of nation’s the toughest immigration measures.” It is one of the many copycat laws modeled after Arizona’s severe immigration legislation. The law requires most businesses to check the immigration status of new employees, punishes these businesses if they hire illegal immigrants and allows police officers to question certain suspects of their immigration status.

A month after its passage, a federal judge blocked provisions of the law that required police officers to check the immigration status of suspects without an identification card and that punished people who knowingly harbor or transport illegal immigrants. The judge found that the law reflected a misinterpretation of federal law and could violate civil rights. The state has appealed.

The Georgia Agribusiness Council openly opposed the law. The Council’s President said that the law frightened the state’s Hispanic population away from thousands of farm jobs. Agriculture is Georgia’s largest industry.

To other Georgia businesses, the law has proven confusing as they prepare for a provision of the law that will require checking newly hired employees’ immigration status via E-Verify. These businesses are misinformed about the law and must also deal with certain ambiguities. For instance: many don’t realize that not all businesses will have to comply by the new year—those with between 10 and 99 employees won’t have to being using the E-Verify system until 2013. And some companies don’t know which employees must be submitted to the system or which employees should be counted to determine whether they must use it.

Immigration inquiry requirements have toppled over from the state’s law-making body to its education system: the University System of Georgia recently adopted a policy requiring students to prove that they are legally in the country before enrolling in any public university within the state. On the state’s largest college campus, a fifteen-year-old protester declared his illegal status and proclaimed, “I want the education after high school because I don’t want to end up a deadbeat.” A study by the Georgia Board of Regents found that less than one percent of the state’s public university students were illegal immigrants.

Some professors have reacted against the policy by setting up a makeshift school for students who can no longer attend college because of the policy. The program offers college-level courses (but for no credit, of course), and is completely free for students. School supplies are funded by donations.

So despite Georgia’s seemingly popular sentiment favoring drastic immigration reform not only by the Georgia Legislature but also by its university system, many Georgians are vocally opposing this reform and actively seeking alternative ways to meet the needs of their more vulnerable neighbors.

San Francisco City Attorney Kathleen Morris calls for overturning a century of precedent in local government law.

On Tuesday September 27th, 2011, from 7-9 PM in Langdell South at Harvard Law School, the author will be joined by Professor David Barron and Professor Gerald Frug of Harvard Law School and Professor Richard Ford of Stanford Law School to discuss whether local governments are powerless instrumentalities of states or whether they should be allowed to pursue constitutional claims on behalf of their constituents.

Morris’s article can now be read here at HarvardCRCL.org, along with responses from academics and practitioners.  More responses will be posted leading up to the event.  Media from the discussion will be available after the event.

In late 2006, Bradley Johnson, a San Diego County math teacher and sponsor of the school’s Christian club, received complaints regarding two large banners displaying phrases including: “IN GOD WE TRUST,” “ONE NATION UNDER GOD,” “GOD BLESS AMERICA,” “GOD SHED HIS GRACE ON THEE,” and “All men are created equal, they are endowed by their CREATOR.”  The school’s principal ordered Johnson to remove the signs – a demand Johnson believed infringed upon his free speech rights.

The Ninth Circuit disagreed.  The ruling has drawn attention because the objectionable posters all contained quotes taken from the national motto, the National Anthem, and the Declaration of Independence.  From a legal standpoint, however, the ruling is largely uncontroversial.

Why didn’t the school district’s action violate Johnson’s free speech rights?

Johnson is a government employee and, as such, faces restrictions regarding what he can say in the classroom.  As the Ninth Circuit noted, “Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.”

As a public school teacher, Johnson serves as the government’s mouthpiece: he is the Government’s voice in the classroom.  Accordingly, the Government gets a say in what Johnson gets to say – at least within the scope of his employment.  The fact that Johnson may have had some freedom to choose what he displayed in his classroom did not change the reality that the Government – not Johnson – was responsible for the speech that appeared on his classroom’s walls.

Did the school district violate the Establishment Clause by ordering Johnson to take down his posters?

The Establishment Clause requires “government neutrality” with respect to religion.  Stated simply, the Government may not “place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general.”  Nor may it “be overtly hostile to religion.”  Johnson argued that the school district’s directive to remove his posters evinced hostility toward religion and was thus unconstitutional.

The Ninth Circuit disagreed.  Legal precedent holds that governmental actions taken to avoid potential Establishment Clause violations do not represent hostility toward religion.  Since a reasonable observer might have construed Johnson’s posters – with their repeated references to God and use of disproportionately large font to spell out words like “CREATOR” – as religious endorsements, the school district’s actions were not unconstitutional.

What about other purportedly religious displays in the school?

On appeal, Johnson argued that other teachers at his school decorated their classrooms with other forms of religious iconography, including Tibetan prayer flags and a Malcolm X poster.  By ordering him to remove his posters but not the other religious symbols present at the school, officials were sending a message of hostility toward Christianity.

Again, the Ninth Circuit disagreed.  The fact that these other displays may have had some religious content does not mean that they ran afoul of the First Amendment.  Rather, “[e]ach [display] would be violative [of the Constitution] only if used to endorse or inhibit religion.”  Because depictions of Malcolm X and Tibetan prayer flags do not send the same kind of overtly religious message as the word “God” written repeatedly in all caps across a poster, their presence in the school was unobjectionable.

In this article, I discuss how imageries based on the historical typification of Indians have been projected onto Latina/o immigrant populations that are in the United States without proper documentation. I also explore the risk such a typification poses to native-born Latina/o populations who are oftentimes unfairly implicated in surging anti-immigrant backlashes. Key questions this article addresses include: Is the idea of the “Latina/o Threat” materially connected to historical ideas concerning Indian savagery? If so, to what extent is this threat narrative connected to anti-Indian sentiment? How have historical representations of American Indians framed modern debates over the kinds of risks posed by Latina/o immigrants to the U.S.? How have these debates affected recent immigration policy?

In section I, I discuss how S.B. 1070, as amended by Arizona House Bill 2162, frames the Latina/o Threat narrative in subtle racialized terms. Specifically, I evaluate whether Arizona’s newly authorized alienage investigations are likely to function in ways that implicate
race in a constitutionally impermissible manner. In section II, I demonstrate how the idea of Indian savagery animated the way Americans typically perceived Indian societies. Further, I assert that the savagery that was often associated with Indians was seamlessly grafted onto Mexican immigrants and ultimately sparked an expansive xenophobic fear that drove the development of restrictive immigration laws along racialized lines. In section III, I demonstrate how the mixed-blood descendents (e.g. immigrants) of early indigenous Latina/o populations have been racialized consistent with that of their Indian forbearers. Throughout, I aim to show
how the Latina/o Threat narrative has its origins in anti-Indian sentiments which are themselves grounded in a deep-seated fear of a savage alien.

Read the full article here.

To the extent that the relationships between officeholders and lobbyists remain opaque, they may be problematic. A potential solution, however, can be extracted from a surprising source. In Citizens United, Justice Kennedy wrote to reintroduce corporate and union spending into political campaigns. While doing so, he spoke of robust disclosure. Justice Kennedy asserted that disclosure would protect the integrity of elections by ensuring that voters are “fully informed.” He continued by stating that “With the advent of the internet, prompt disclosure of expenditures can provide . . . citizens with the information needed to hold corporations and elected officials accountable for their positions . . . .” Justice Kennedy’s position won the support of 8 Justices. His insistence on disclosure reflected concern that, without transparency, elected officials might “put expediency before principle,” and “succumb to improper influences from independent expenditures.” Because those concerns also permeate discussion about the relationships detailed in LegiStorm’s study, disclosure is critical. A regime could be constructed without betraying much personal information:

‘Congressman Doe has hired X many lobbyists from the widget industry, and has consulted with Y many lobbyists on each of the following issues. Meanwhile, the lobbying firm of Ames and Gropius has hired Z many hill staffers, deploying them    across a range of issues including…’

That disclosure would be a tremendous asset, helping restore credibility to government practice. In a pluralistic society, conveying whether varying perspectives are represented satisfies a basic right to information. Such satisfaction might ensure that knowledgeable professionals remain active in government without suffering reputational harm. It could also ameliorate tension between those who enjoy access to lobbying firms, and those who don’t.

The Supreme Court will soon decide.  In a brief filed with the Court, Florence contends that jailers’ policy of strip-searching all inmates entering correctional facilities – including those accused of minor offenses – violates the Fourth Amendment’s protection against unreasonable searches and seizures.  To effect a search as invasive as the one Florence underwent, officials must have a “reasonable suspicion” that an inmate is attempting to smuggle drugs or weapons into the facility.

Counsel for the prisons counter, however, asserting that suspicionless strip searches are necessary mechanisms to ensure the safety and security of state and federal prisons.  Any interest inmates have in individual privacy is dwarfed by the state’s interest in detecting the smuggling of contraband into prison.  Indeed, altering existing policy might spur inmates to coerce others into getting arrested on minor charges in order to smuggle contraband undetected.

As a tactical matter, Florence seeks to minimize the state’s interest in suspicionless strip searches, deriding the practice’s efficacy in detecting contraband.  Florence points to a variety of statistics suggesting that suspicionless strip searches prove a poor screening mechanism for smuggled materials.  For instance, eighteen states prohibit suspicionless strip searches with no indication that prisons therein suffer from an increased incidence of smuggling.  Florence also points to Dodge v. County of Orange, 282 F. Supp. 2d 41 (S.D.N.Y. 2003), in which a court in the Southern District of New York examined a prison policy whereby all inmates were strip-searched before entering a particular facility.  The Court looked at every arrest record to determine whether a “reasonable suspicion” regime – in which strip searches were limited to prisoners whose crimes and/or backgrounds evinced a propensity to smuggle – would increase the amount of contraband introduced into prison.  The Court concluded that of the 23,000 searches conducted over a four-year period, there was only one instance in which a person smuggling drugs might have evaded detection under a reasonable suspicion regime.

Florence’s reliance on statistics to cast doubt of the state’s interest in security may prove to be a tactical error.  First, recitations of statistics from other jurisdictions or other prisons do not necessarily speak to the realities of the prisons in which Florence was housed.  As one of the respondents points outs, the jail where Florence was strip-searched is one of the most dangerous in New Jersey, where contraband is “found on a daily basis.”[1]  Though the facility in Dodge may not have benefitted from a suspicionless strip search regime, the present prison might.

Moreover, the Court has defended highly invasive searches absent probable cause in prior cases, even where such practices appear to possess limited utility.  In Bell v. Wolfish, 441 U.S. 520 (1979), for instance, the Court upheld a prison policy subjecting prisoners to body cavity searches upon receiving outside visitors, despite the fact that such searches had discovered contraband in only one instance.  However, Bell does not necessarily ring the death knell for Florence’s appeal.  The fact that the searches in Bell discovered little contraband is to be expected: if the inmates knew that they would be searched after visits with guests, there would be little incentive to have those guests smuggle in illicit items.  In contrast, inmates charged with minor offenses are unlikely to possess contraband because: (a) they possess no real criminal disposition and thus no desire to smuggle illicit items into prison or (b) their arrest was unpredictable and thus they lacked the time necessary to hide contraband materials on their person.  The Court’s dismissal of statistical data in Bell does not necessarily suggest they will reject it again in Florence.

- On the New York Times Op-Ed page, Jeffrey Rosen of George Washington University law school previews the upcoming Supreme Court case of United States v. Jones, involving the use of a GPS tracking unit on a suspect’s car without first obtaining a warrant.  Two federal appeals courts have already upheld the use of this type of surveillance, relying on the lack of an expectation of privacy for the movement’s of a car in public, but the DC Circuit has rejected that argument, separating GPS tracking from standard police surveillance.

- A new AP poll of 1,000 found that 53% of respondents believed that the government should give legal recognition to marriages between couples of the same sex — approximately the same amount as a similar poll last year.

“Support for legal recognition of same-sex marriage has shifted in recent years, from a narrow majority opposed in 2009 to narrow majority support now. Some of the shift stems from a generational divide, with the new poll showing a majority of Americans under age 65 in favor of legal recognition for same-sex marriages, and a majority of seniors opposed.”

- As part of the SCOTUSblog symposium on arbitration, Christopher Drahozal of the University of Kansas Law School warns that the Arbitration Fairness Act would be an overreaction to the Supreme Court’s recent decision in Concepcion.  Drahozal notes that many arbitration agreements do not bar class arbitration, and he believes the newly formed CFPB and individual states are perfectly situated to protect consumers in the post-Concepcion landscape.

- The Oregonian reports that the Oregon GOP has stripped anti-language from their 2012 party platform.  The wording, which had essentially condemned same-sex marriage and civil unions, was removed following a weekend convention in Bend.

- In international civil liberties news, a South African judge has banned the singing of “Shoot the Boer,” an anti-apartheid struggle song.  The song is frequently sung by the leader of the ruling African National Congress’s Youth League, but was challenged on the ground that it may incite violence against white farmers.  The ANC views the decision as an attempt to rewrite South African history, and is expected to continue to sing the song.

Rakheem Bolton

Originally published May 6, 2011.  The Supreme Court has declined to take the case of a Texas high school cheerleader who was kicked off the squad after refusing to cheer for the basketball player whom she alleges raped her.  The Fifth Circuit ruling not only upheld the school’s right to punish her for refusing to cheer, but dismissed her suit as frivolous, requiring her family to cover the school’s legal fees.  The victim, who was 16 at the time, was allegedly raped at a party by Rakheem Bolton, one of her high school’s star athletes.  Though Bolton was arrested, he plead guilty to a misdemeanor assault, was sentenced to probation and community service, and was back on the basketball team.

When Bolton stepped up to take a free throw, the victim, known as H.S., crossed her arms and refused to participate while the team cheered his name.  School officials ordered H.S. to participate in the cheers, and when she continued to refuse, she was kicked off the cheerleading team.

Not only does this case represent a tragedy of criminal justice, with Bolton pleading guilty to an assault but not a felony and without serving a day in jail due in part to the backlog of DNA testing of rape kits, the civil suit is a gross perversion of the victim’s right to free speech.  H.S. was not on the sideline screaming obscenities at her rapist while he tried to take a free throw (which would be totally understandable).  She was simply standing quietly refusing to cheer for him.  She did not interfere with the basketball team or any other cheerleaders.  She simply stood there.

Yet, the Supreme Court declined to take the case and correct the Fifth Circuit’s assertion that H.S. was a “mouthpiece” for the school to “disseminate speech,” and that her “act constituted substantial interference with the work of the school.”   The highest court in the land couldn’t get four justices to vote to even hear the argument for why it might actually be reasonable to punish rapists and not victims.

Update 9/13/2011: After being ordered to pay $39,000 in court costs for filing four frivolous claims, the plaintiff in this case won a small victory when the 5th Circuit has now overturned the finding of frivolity on the plaintiff’s free speech claim.  Three other arguments based on denial of liberty, property, and equal protection and due process violations were upheld as frivolous, and the case was sent back down for a new determination of costs.  Filing this case will likely eventually cost the girl and her family tens of thousands of dollars.  She is now 19 and has graduated from high school.

You can sign a petition to encourage the district to drop the claim for legal fees here.  You can donate to help the family pay the legal fees here.

In a relatively little-noted decision last term, the Supreme Court favored a particular vision of federalism over the protection of religious freedom. The 6-2 ruling, in Sossamon v. Texas, barred money damages in private actions brought by prisoners against state and local governments under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). 

The technical point at issue in Sossamon was whether the statute’s authorization of “appropriate relief” against governments was explicit enough to constitute a waiver of state sovereign immunity. Writing for the majority, Justice Thomas reasoned that “appropriate relief” is ambiguous enough that in this instance it authorizes only injunctive relief, not monetary damages. In a thorough dissent, Justice Sotomayor pointed out that this reasoning ends up reversing traditional remedy principles, by which equitable relief is granted only if a damage award is insufficient, and that there is no particular reason to think that the phrase “appropriate relief” is explicit enough to allow injunctions but not monetary damages.

By ruling out monetary damages in private RLUIPA actions, the Court erected a significant obstacle to private enforcement of Free Exercise rights under the RLUIPA standard. As Justice Sotomayor’s dissent points out, a prison system sued under RLUIPA can moot any potential injunctive remedy by simply transferring a plaintiff prisoner to another facility, leaving the plaintiff without any available judicial remedy; in any event, injunctive relief may be “of cold comfort to the victims of serious, non-recurring violations.” Sossamon also eliminates the incentive effect that damage awards can have on institutional behavior. And coupled with the already draconian provisions of the Prison Litigation Reform Act, Sossamon continues a trend of denying prisoners any effective opportunity for the enforcement of their rights.

It remains to be seen whether Sossamon removes the possibility of money damages in land-use cases, the other category of state action to which RLUIPA applies. In light of the Supreme Court’s Free Exercise jurisprudence in the past couple of decades, it would be a predictable irony if conservative religious groups were hurt by another decision supported largely by the Court’s conservative majority. RLUIPA was passed in response to the Court’s striking down of the Religious Freedom Restoration Act (RFRA), which in turn was Congress’s 1993 response to the Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), that ended the “substantial burden” test that the Court had previously applied to governmental actions that interfered with the free exercise of religion. Sossamon is just the latest in a line of cases that value state sovereignty and the protection of institutional defendants over religious liberty, despite a bipartisan consensus in the elected branches that the Court’s interpretation of the Constitution on this issue is off track. Thus, Sossamon demonstrates that legislative action to protect civil liberties can be insufficient when it meets with a hostile Supreme Court majority.

Following on New York’s legalization of gay marriage at the end of June came another encouraging development for same sex couples in the immigration sphere:  changing Immigration and Customs Enforcement (ICE) priorities may delay or cancel deportations of immigrants married to U.S. citizens of the same sex, despite the federal Defense of Marriage Act (DOMA).

Before an ICE official recently decided to cancel the deportation proceedings of Henry Velandia of Venezuela, married to American citizen Josh Vandiver in Connecticut, an immigration judge in New Jersey, where the couple resides, had suspended the deportation pending legal developments that might provide immigration relief to members of same sex unions.

In another challenge to DOMA earlier in June, a California bankruptcy court ruled that the law was unconstitutional in response to efforts by a gay, married couple to file jointly for bankruptcy.  (Read the decision here.)  While defenders of DOMA argue that a serious constitutional challenge to the law cannot be mounted from bankruptcy court (nor, of course, from immigration court for that matter), these decisions underscore how practical realities like shared residences and shared finances are challenging discrimination against same sex couples.  In the words of Bankruptcy Judge Thomas Donovan, “no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple.”

Arizona, home of SB 1070, has proven itself to be ground zero in the nation’s immigration debate. At the center of racially charged controversy is Tom Horne, former Superintendent of Public Instruction and current state Attorney General, who has waged a four-year campaign to eradicate the Tucson Unified School District’s Mexican-American/La Raza Studies Program.

Horne ran for superintendent on the platform to “stop La Raza”, which he accused of teaching “ethnic chauvinism” because it uses works by authors critical of the United States’ historical relationship with Latin America and its past treatment of Latinos. He authored a bill signed into law on May 11, 2010, A.R.S. §§15-111 and 112, which bans courses that promote resentment toward a race or class of people, advocate ethnic solidarity instead of the treatment of pupils as individuals, or promote the overthrow of the United States government. On his final day as Superintendent, Horne announced that La Raza was in noncompliance with HB 2281. No other ethnic studies programs were targeted.

La Raza is fighting back. It organized the Save Ethnic Studies Movement and on October 18, 2010, attorney Richard Martinez filed suit in the United States District Court against Superintendent Horne and State Board of Education, on behalf of eleven TUSD Mexican American Studies teachers and two TUSD students. The legal challenge contends that A.R.S. §§15-111 and 112’s attempts to wipe out the Mexican American Studies program is an unlawful infringement of free speech, and a denial of due process and of equal protection based solely on the teachers’ and students’ race. In late April La Raza students chained themselves to the school board members’ chairs, preventing a vote to terminate the program’s accreditation.

At a recent press conference, current Superintendent of Public Instruction John Huppenthal proclaimed that a $170,000 audit he commissioned proved that the Mexican American Studies Program was in noncompliance with state law. An actual look at the audit proves Huppenthal’s claims are outright lies. According to the audit, students in the Mexican American Studies program graduate at a rate of 11 percent more than their counterparts, and “no observable evidence suggested a violation of the law A.R.S. 15-112.” Hundreds of thousands of tax dollars and several dozen arrests later, it ironically appears that the ethnic studies program is in compliance with a likely unconstitutional law engendered to eliminate it.

This baseless attack on the Mexican American Studies program highlights the shortfalls of Brown v. Board of Education and a need to articulate the right of ethnic groups to retain group identity and cultural integrity in the public sphere, including in public education. While institutionalized segregation is no longer sanctioned, curriculum continues to focus on the historic perspective of the oppressor, and not the oppressed. In an educational system that disproportionately fails minority students, ethnic studies programs offer educational engagement and success and should be supported on a federal level.

On the eve of Title IX’s fortieth anniversary, news of the federal government’s failure to meaningfully enforce the law’s provisions is troubling. Enacted in 1972, Title IX forbids sex discrimination in all schools that accept federal funds. The law has become nearly synonymous with gender equality in athletics, the area in which its provisions have had the most impact. However, as the New York Times reported last month, the Office for Civil Rights (OCR), charged with enforcing Title IX, has grown lax in initiating its own investigations in recent years. Instead the office routinely allows schools to conduct their own investigations and create their own strategies to solve internal problems of sex discrimination. Unsurprisingly, this policy has been ineffective in inspiring change. According to Neena Chaudhry, senior counsel at the National Women’s Law Center, “many schools are getting away with providing less opportunities to girls because they don’t do what they’re supposed to unless made to.”

OCR must overhaul its enforcement efforts if the progress that Title IX has made in expanding women’s rights is to continue. No one disputes that Title IX has already accomplished a great deal in the fight for gender equality. The number of female high school athletes has increased by 940% since the passage of Title IX. The number of female varsity college athletes has increased by more than 450%. Indeed, recent studies have shown that Title IX has had a direct impact on women’s education and employment. One study, conducted at the University of Pennsylvania, found that changes set in motion by Title IX explained 20% of the increase in women’s education and about 40% of the rise in employment for 25-to-34-year-old women. Even more importantly, Title IX has given all women, not just athletes, the opportunity and the confidence to chase dreams and succeed in careers once thought to be a man’s domain.

But such accomplishments are threatened by the current underenforcement of Title IX. Underenforcement has plagued past struggles for civil rights. For example, although Brown v. Board of Education guaranteed all schoolchildren the right to attend desegregated schools, the Supreme Court’s vague “with all deliberate speed” timetable and the political branches’ unwillingness to quickly implement the law led to years of delay. Indeed, enforcement problems with school desegregation continue to this day, as evidenced, for example, by the federal courts’ recent takeover of the Tuscon, Arizona school system.

In order to truly fulfill the purpose of Title IX, OCR must seriously investigate potential violations. There is evidence that reform is underway. Since President Obama appointed Russlynn Ali to head OCR, the office has become more aggressive in initiating investigations and taking on powerful schools. Janet Judge, a lawyer specializing in Title IX, said she had noticed a difference since Ali’s arrival. “Enforcement is at the highest level I’ve seen in my almost 20 years of Title IX practice,” she said. Only a continued commitment to enforcement will ensure that the movement toward gender equality marches forward.

The Eighth Amendment guarantee against “cruel and unusual punishment” has been a primary source of protection for prisoners objecting to their conditions of confinement. In 1980, the Supreme Court enhanced this protection by establishing an implied damages action against federal prison officials for violating the Eighth Amendment. Since its decision in Carlson v. Green, 446 U.S. 14 (1980), inmates have been able to sue individual prison officials for violating their Eighth Amendment rights.

Carlson marked one of the few times that the Supreme Court has extended its decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Court allowed a victim of a Fourth Amendment violation to sue individual federal officers. This groundbreaking decision essentially created an implied private action for damages against federal agents who violated a citizen’s constitutional rights where there had been no statutory creation of one. The Court reasoned that because federal officials acting under “color of law” possess a far greater capacity for harm, constitutional restrictions should apply to them in ways they may not apply to normal citizens. Though the Court has been cautious to extend this judicially created cause of action to other situations, in Carlson the Court ruled that a Bivens remedy is available to inmates claiming violations of the Eighth Amendment.

A recent trend in federal prisons is threatening to destroy this cause of action for prisoners. The National Capital Revitalization and Self-Government Improvement Act of 1997 authorized the Attorney General to act through the Bureau of Prisons and contract with private entities to house federal prisoners. Since that time, thirteen privately run facilities have opened and are currently housing more than 25,000 federal prisoners. Since private prison employees are not government actors, these prisons call into question whether Bivens applies to privately owned prisons as well.

Several circuits have considered this question and have come to different conclusions. Relying on the Supreme Court’s historic reluctance to extend Bivens, the Fourth Circuit in Holly v. Scott, 434 F.3d 287 (4th Cir. 2006), ruled that inmates could not sue private prison employees directly under the Constitution for Eighth Amendment violations. Similarly, in Peoples v. CCA Detention Centers, 422 F.3d 1090 (10th Cir. 2005) the Tenth Circuit held that a pretrial detainee in a private prison could not sue under Bivens when alternative state or federal remedies existed. Recently, however, the Ninth Circuit came to the opposite conclusion. Reasoning that private prisons are engaged in a “public function,” the Ninth Circuit held in Pollard v. GEO Group, Inc., 629 F.3d 843 (9th Cir. 2009) that Bivens should and does apply to private prison employees the same way that it applies to government employees.

Now it is up to the Supreme Court, who granted certiorari this past May, to clear up this controversial question and resolve the circuit split. Many inmates, prison rights advocates, and private prison corporations are anxiously awaiting this decision, which will have enormous implications in the area of prison litigation in this country.

Much like a Rube Goldberg machine, sometimes apparently innocuous changes in federal law cause unintended interactions, albeit for a less than sympathetic group: in 1994, the Violent Crime Control and Enforcement Act made restitution to victims (defined merely as a person who has been harmed by an applicable crime) mandatory for certain crimes, including for child pornography offenses. A decade later in 2004, Congress passed the Crime Victims’ Rights Act (CVRA), which among other things, gave crime victims the right to notice of any public court proceeding involving the perpetrator and full and timely restitution as provided in statute.

Prior to the CVRA, restitution for child pornography offenses could only, practically speaking, be obtained from the actual producers of child pornography and those who had direct contact with their victims. However, under the CVRA, notice is given to victims whenever a criminal defendant, anywhere in the country and who would otherwise have been unknown to the victim, is convicted of any child pornography offense involving their images, including cases where the defendant only possessed images without having done more. Suddenly, victims could go after a new and potentially massive group of defendants for restitution.

Indeed, in the past two years, two victims “Amy” and “Vicky”, who had been molested as children and whose pictures were distributed online, have intervened in hundreds of child pornography cases across the country, asking for restitution to the tune of $3.2 million and $188 thousand, respectively. The courts have found themselves in a bind – granting restitution is mandatory, but how much restitution ought to be demanded of defendants who had perhaps possessed only one photo of either “Amy” or “Vicky”? They have thus far diverged dramatically on the question with some courts refusing to grant restitution but at least one mandating restitution for the full amount of $3.2 million dollars.

There is no doubt that people like “Amy” and “Vicky” are victims of terrible crimes, and that possession of their images by itself contributes in some way to their suffering. Nonetheless, there are serious questions raised about the fundamental fairness of holding possessors of their images liable for restitution when (1) it’s not clear if there’s a sufficient causal link between their actions and the harm and (2) even if there were, it would be near impossible to determine what proportion of harm for which they ought to be liable. There has already been widespread criticism of the federal treatment of child pornographers; abandoning basic principles of proximate cause and not imposing arbitrary punishment will not help.

Trial for Lobato v. State started this week in a Colorado district court, a case in which 14 school districts from the relatively low-property tax area of San Luis Valley sued the State of Colorado, the State Board of Education, and the Governor, arguing the state has violated Colorado’s constitution by mandating programs in low-income schools that are already underfunded.  The case was brought by Children’s Voices, a non-profit law firm created to work on educational equity issues in Colorado.  This video uses striking visuals to dramatize what exactly is at stake given existing disparities in school funding.

If the judge finds for the Plaintiffs, Deputy Attorney General Geoff Blue has stated that there are three possible courses of action:  1) order the legislature to raise taxes in order to increase school funding, 2) change the budget to allocate additional education funds at the expense of another department/area, or 3) distribute money earmarked for education differently between districts.  The plaintiffs have asked for ongoing injunctions requiring the state to restructure school funding and ensure adequate education for all students via judicial oversight until the overhaul of the funding scheme is complete.

The specific challenge to Colorado’s current funding formulas is based on the “education clause” of the state’s constitution (article IX, section 2), which guarantees a system of free and public schools in the state, and the “local control clause” (article IX, section 15), which guarantees that local boards of education have final control over their districts.

The complaint alleges that performance evaluations required by the state, and the nationally popular No Child Left Behind program, have taken control out of the hands of local school boards.  The complaint also alleges that cuts in funding over ten years, which have saw Colorado fall from 35^th to 49^th nationally in education spending as a percentage of personal income, have made it impossible for local districts to provide an adequate free and public education to all students.   In this regard the Colorado case resembles previous successful litigation in other states that has challenged funding formulas on the basis that they lead to inadequate education for students in less wealthy areas.  Part of the cut in funding is a result of the Colorado Taxpayer’s Bill of Rights (“TABOR”), which limits tax increases and prohibits school districts from raising property taxes and mill levies without voter approval.

The trial is before Denver District Judge Sheila Rappaport.  Case documents, including discovery, can be found here.

Teach For America (TFA) has built its movement upon the rhetoric of “civil rights.” Wendy Kopp promotes her book One Day All Children as  “a blueprint for the new civil rights movement.”[1] I agree with the portrayal of educational inequity as a civil rights issue. Just choose your statistic – numerous studies show how educational achievement maps onto race and socioeconomic status (such as the finding that “by the end of high school, black and Hispanic students’ reading and mathematics skills are roughly the same as those of white students in the eighth grade.”)[2] This inequity undercuts the provision in every state constitution that grants every child a right to education.

All this is to say, TFA has good reason to frame its appeal to graduating seniors as a civil rights call. I was so persuaded that I joined the movement, and taught for two years as a sixth grade teacher in the Phoenix Corps. I have respect for many of TFA’s efforts, and great admiration for many of its teachers.

However, I was dismayed to learn that TFA and their political allies are re-writing the law that guarantees every child equal access to a “highly qualified teacher” in the classroom. Recent decisions in the ninth circuit and the related repercussions in Washington D.C. generate serious questions: Who has a right to a highly, qualified teacher? What is the best policy to make this right a reality for all students?

The “highly qualified” question arises out of the 2001 No Child Left Behind Act (NCLB). Congress passed NCLB with the explicit purpose of narrowing the achievement gap in schools. They wrote in numerous provisions to ensure that states, districts, and schools would ultimately realize the promise of a fully prepared teacher for all students, which they defined unambiguously as a teacher who “has obtained full State certification.” (20 U.S.C. §7801(23)(A)). In its regulation, the United States Department of Education (ED) re-wrote this provision to state that the highly qualified label applies to anyone “participating in” alternative certification programs and merely making “progress toward full certification as prescribed by the State” (34 C.F.R. § 200.56(a)(2)(ii)) (emphases added). ED’s revision has had the greatest impact on low income, high-minority schools. In Renee v. Duncan the Plaintiffs challenged the regulation and supported their argument with that fact that “nearly a quarter of California’s 10,000 interns teach in schools whose students are 98-100% minority; as such, these minority students are five times more likely to have intern teachers than students in schools with the lowest proportion of minority students.”[3] In contrast, less than 2% teach in the decile of schools with the lowest minority concentration.[4] In July 2010, the Ninth circuit ruled that the department’s regulation impermissibly expanded the definition of who was “highly qualified.”[5]

This decision threatened the expansion of teacher-intern programs, and such programs have reacted with force by lobbying congress and submitting amicus briefs to the Ninth Circuit to reconsider the decision. TFA has been at the forefront of this resistance. The result was a last-minute insertion into a confusingly labeled piece of legislation: the “Continuing Appropriations and Surface Transportation Extensions Act, 2011” passed on December 22^nd. Buried in the middle of the act, Section 163 temporarily adopts the ED code’s definition of a “highly qualified teacher,” effective from the date of enactment through the end of the 2012-2013 academic year.

In the aftermath of the continuing resolution, the Ninth Circuit is reconsidering its decision as well as its directions on remand to the lower court. This past June, they heard arguments from both parties on how to amend their decision. The court has not yet issued its opinion.

This series of events raises the question of how policymakers should reform the education system in years to come. I understand that TFA wants to expand its program. But filling our struggling schools with intern-teachers is not a long-term solution. We should expect our teachers to be trained and prepared, and calling an “intern” teacher a “highly qualified” teacher covers up the problem. It denies parents access to information that they could use to demand more experienced teachers. It denies useful data for reformers to demand a better dispersal of effective teachers across schools. TFA has advanced itself using the argument that a “certified” teacher isn’t necessarily better than an intern teacher. IF that is true – and I’m not saying it is – then the answer lies in reforming how we train teachers and evaluate them once they’re in the classroom. The answer is not to totally do away with certification requirements, or to hide the way we place the least-qualified teachers with the neediest students.

As Justice Stevens (ret.) observed in his dissent in Citizens United, the Roberts Court’s laissez-faire approach to campaign finance regulation is premised on an exceedingly narrow (as Justice Stevens put it, “crabbed”) conception of the “corruption” interest that the Court has recognized previously: according to the Roberts Court, the only form of “corruption” that the Government has a legitimate interest in seeking to prevent through campaign finance regulation is quid pro quo corruption, i.e. the trading of cash for votes.  By limiting the “corruption” interest in this way, the Roberts Court has thus been able to argue that any threat of undue influence can be satisfactorily addressed through caps on individual donations to candidates (after all, what Congressperson is going to sell her vote for $2,000?).  As a result, the “corruption” interest appeared to have lost most, if not all, of its critical force after Citizens United.

Fastforwarding to its most recent campaign finance decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Roberts Court reasserted its argument that individual donation caps are sufficient to prevent the exchange of cash for votes,  thereby sweeping aside once again the position that a government (in this case, the state of Arizona) could predicate a robust campaign finance regulatory regime on its interest in preventing “corruption” (to be clear,  counsel for the appellees asserted numerous other arguments in defense of the regulation at issue, none of which I address here).  Fortunately, embedded in her otherwise feisty and rhetorically satisfying dissent, Justice Kagan may have planted the seed for an effective rebuttal to the Roberts Court’s seemingly tidy argument, even while granting its basic (and, as Justice Stevens argued so persuasively, flawed) premise: even if one accepts that the Government has only a legitimate interest in regulating quid pro quo corruption, Justice Kagan argued, it does not follow from this that simple caps on donations to candidates will suffice to satisfy that interest.  The reason that this is so, Justice Kagan went on, is that the combination of caps on individual donations and the ever-increasing cost of financing successful political campaigns has led to an increasing reliance by candidates on so-called “bundlers,” i.e. individuals who collect donations on a candidates behalf, sometimes hundreds of thousands of dollars or more for the campaign.  To echo the Washington Post, “candidates are as indebted to the $1 million bundler as they are to the $1 million check writer.”  As such, Justice Kagan reasoned that “dependence” on bundlers poses just as much of a threat of “corruption” (even the narrow, quid pro quo variety) as does dependence on large donors.

While Justice Kagan refrained from drawing them out, the implications of her observation should be obvious: insofar as competitive candidates already spend more time fundraising than any sensible democracy would allow, the fact of ever-increasing campaign costs requires that those candidates depend on someone to provide large dollar donations (bundled or otherwise) in order to finance their campaigns, someone who, in turn, will have a degree of influence over those candidates sufficient to give rise to a threat of “corruption,” no matter how narrowly defined.  However, once one recognizes that the threat of “corruption” is the necessary product of candidates needing large sums of cash to come from somewhere, one can quickly infer that campaign finance regulations beyond mere caps on donations (be they from individuals or bundlers) might easily be predicated on even the overly narrow conception of the “corruption” interest endorsed by the Roberts Court.

The past two decades have seen the filing of dozens of cases of so-called “educational adequacy” litigation, state court cases in which plaintiffs have charged that the state has a responsibility to offer all of its children an adequate education.  These cases—which are based on clauses in state constitutions that guarantee all students some essential level of education—have succeeded more often than they have failed.  Indeed, a major outcome of these efforts is that state Supreme Courts throughout the country have held, in clear and forceful terms, that students have a right to an education that will allow them to make effective life decisions, play a meaningful role in the political process, and compete favorably in the job market.  Some courts have gone further, ruling that the constitution requires the state to fund after-school programs, health services, and pre-kindergarten.

Many courts have made a point of stressing the centrality of effective teaching to adequate education, without which meaningful learning—at the primary level, at least—is close to impossible.  But even if it were undisputed that children have a moral (or at least civil) right to quality teaching, there would remain the obvious problem of formulating a consensual, coherent definition of effective pedagogy.  Many state legislatures have attempted to address this challenge by requiring statewide peer review of teachers.  Peer review, however, is limited in its efficacy; it relies on the assumption that senior teachers—the teachers who do the reviewing and thus set the tone for their younger colleagues—are capable of powerful, imaginative pedagogy.  If they are not, however, what results is merely a case of the blind leading the blind.

The failure to agree on what constitutes effective teaching points, naturally, to a related set of issues: the process teaching the teachers.  A recent New York Times story profiles some of the familiar difficulties inherent in relying on colleges and universities to mass-produce quality teachers.  For one, to the extent that education schools are driven by profit, it is not clear whether they can be expected to make responsible decisions about how best to fulfill their mission (the same must be said, of course, with regard to law schools).  Even more obvious is the fact that effective teaching requires the ability to perceive how students think and feel, which in turn requires high levels of discernment, empathy, and emotional awareness—skills universities do not impart.

Not surprisingly, as illustrated by an oft-cited 2006 report from the Education Schools Project, there is little consensus about the value of formal, university-based approaches to teacher preparation.  But whatever one thinks of education schools, efforts to achieve educational adequacy through courts must be accompanied by a willingness to think about precisely what it means to be a strong teacher, and about whether the skills that make a teacher great can themselves be taught.  The answers to these questions will play a vital role in shaping the future of education reform.

Last month, Governor Rick Scott of Florida signed a bill requiring Temporary Assistance for Needy Families recipients to undergo drug testing. If a recipient tests positive for drugs, she or he becomes ineligible for benefits. Scott reasoned that this law prevents taxpayer money from subsidizing drug addiction.

The passage of this legislation sparked a debate in the legal community regarding whether Governor Scott’s drug testing requirement violates the Fourth Amendment rights of welfare recipients. This Constitutional discussion is certainly important – indeed, critics’ Fourth Amendment arguments against the legislation may ultimately lead to its invalidation – however from a civil rights perspective, the discriminatory nature of the legislation is even more important.

Scott’s legislation sanctions a form of mass profiling – “economic profiling.” It forces lower-income individuals to undergo intrusive tests in order to receive government benefits, but does not render benefits received by other groups contingent on undergoing such tests. Supporters of the bill assert that there is nothing discriminatory about it; they claim that it simply addresses the reality that a disproportionate amount of welfare recipients are drug users.  Even if this claim were true (and it is questionable), it cannot justify government action that targets a broad population based on purported characteristics of some of its members.  Such action constitutes a paradigmatic example of discrimination.

Furthermore, still assuming the truth of supporters’ assertions, the legislation does not target other groups that similarly include significant numbers of drug users. Many middle and upper class college students receive some form of government aid and many of these students are drug users (if you don’t believe me, go to a party at my alma mater). Yet Scott’s legislation does not condition students’ government-issued benefits on negative drug test results. Nor does the legislation place such requirements on tax breaks – which are government benefits by another name – to wealthy individuals in high-stress professions often associated with drug use. No, the legislation does not impact any of these groups; it only targets welfare recipients. It only targets the poor.

Given that courts assess claims of economic discrimination under “rational basis review,” Governor Scott’s legislation is unlikely to be struck down based on these grounds. Nevertheless, it is important that the discriminatory nature of the legislation remains a part of the debate. Raising awareness of its profound flaws may help prevent the passage of future similar legislation.

While there has always been a resistance to affirmative action policies, the present debate has added a new dimension.  There has been a rise in rhetoric concerning the notion of white victimhood, and policies like affirmative action are cited as justification for these theories.  Many conservatives paint a portrait that depicts Caucasian Americans as  victims of policies that place them at a disadvantage and promote “reverse discrimination.”  A study conducted by two Princeton sociologists on admissions and affirmative action policies at eight highly selective colleges and universities concluded that black and Hispanic candidates seemed to be the most favored, while whites were most disadvantaged by the process.  In Texas, an Iraq war veteran started a new non-profit group called “The Former Majority Association for Equality.”  A key objective of the group is to fund scholarships exclusively for white males who have at least a 3.0 grade point average. This notion of victimhood is also evident in right wing racial politics, as pundits and politicans  actually encourage Caucasians to identify with their own sense of victimhood. You can turn on Fox News any day and hear rhetoric promoting the idea that minorities don’t achieve in America on their own merits because they are unfairly helped by programs like affirmative action, which allow them to benefit from racism that has been long dead, while whites are unfairly cast as evil-doing racists.

This victimhood narrative is important because of the way it portrays affirmative action policies as oppressive and discriminatory.  Discrimination against people of color and affirmative action both involve race-based considerations, but historic and contemporary discrimination against people of color differs from affirmative action in numerous ways.   A large part of racial discrimination was predicated historically on a belief in white superiority — affirmative action, however, is not grounded in any similar theory because it does not presume that people of color are more or less capable than whites.  Additionally, racial discrimination against people of color creates and protects a system of inequality where unearned white advantages are preserved, while affirmative action does not set up a structure that doles out unearned advantages.  Rather, it simply seeks to reduce the unearned advantages that white have accumulated over time.   Furthermore, racial discrimination and institutionalized racism has actually created extreme imbalances and inequities in housing, education, poverty rates, earnings ratios, etc. Affirmative action has not, nor does it seek to create these inequities in reverse.  Thus, the claim of reverse racial discrimination is misplaced.

Although California state law already bars deceptive advertising practices, Cohen argues that additional safeguards are needed to protect vulnerable, low-income women in San Fransisco who are drawn into the centers by misrepresentations about the services provided.

The San Francisco City Attorney has already written to a local non-profit, Christian crisis center asking that they correct their ads, clarifying that women cannot obtain abortions or referrals for them from the center. The center, First Resort, denies that its advertisements are misleading and contends it respects a woman’s right to choose.

San Francisco’s efforts to challenge the advertising practices and representations of crisis pregnancy centers which counsel against abortions come just weeks after a similar New York City ordinance was struck down by a federal judge in July on First Amendment grounds. In a statement on First Resort’s website, the center says they welcome a debate on the appropriateness of the bill and “urge [the city] not to test the constitutional boundaries of free speech.”

In San Francisco City Attorney Dennis Herrera’s view, however, centers like First Resort are designed “to dissuade women from seeking their constitutionally protected rights,” and they should not be allowed to continue publishing ads designed to confuse or mislead consumers.

Picture from The Bay Citizen

Similar to the Arizona law currently being challenged by the Justice Department, the Alabama law allows police officers to arrest individuals suspected of being in the United States illegally during routine stops for traffic offenses.  The law also criminalizes knowingly shelter or harbor illegal immigrants and requires businesses to use E-Verify to determine employees’ immigration statuses.

Unique to the Alabama law is the requirement that public schools report the immigration status of all students. Immigration advocates fear that the law will “in effect, ban the student through fear and harassment.”  Other actions criminalized by the law include knowingly transporting an illegal immigrant and renting to an illegal immigrant.

The Justice Department’s complaint is the fourth filed in challenge of the Alabama law.  In early July, civil rights groups, including the Southern Poverty Law Center, Hispanic Interest Coalition of Alabama, ACLU, and National Immigration Law Center, sued to block the enforcement of the law, set to take effect on September 1. A group of undocumented immigrants filed suit in state court in late July challenging the law for contradicting Alabama’s state constitutional provisions encouraging immigration. Leaders of Alabama Methodists, Episcopals, and Catholics filed suit earlier this week claiming the law “make[s] it a crime to follow God’s command to be Good Samaritans.”

The final outcome of the Alabama law most likely ultimately lies with Supreme Court, which will most likely have to hear arguments on a challenge to one of the new string of immigration laws that have passed in Alabama, Arizona, Georgia, Indiana, and Utah.

Read the full New York Times article here.

What gets lost in all the rhetoric about the middle class is the need to protect a more vulnerable economic group, the poor.  The middle class may vote more in greater numbers, and may be a more potent swing constituency that can sway the success of one party or the other, but it’s precisely because of those facts that the middle class don’t need the same level of protection as the poor.  Politicians know that directly attacking programs that benefit the middle class, such as home mortgage interest deductions, Medicare, or Social Security, is bad move politically.  The same cannot be said for programs that benefit the poor.  For decades it has been good politics on both sides of the aisle to seek cuts in programs that benefit the poor: welfare, food stamps, aid to poor women with young children.  The image of the welfare queen and myth of rampant fraud and abuse in public assistance programs has made it perfectly acceptable politics to seek cuts in programs for the poor.

The latest of these cuts is sure to be looming in the on-going debt ceiling debate.  Christian groups concerned about the President and the Democratic Party’s lack of focus on the poor are already running ads asking, “What would Jesus cut?”  Dr. Cornell West takes a more cynical stance.  “We have a choice between a Reid plan, which is one of milk-toast spinelessness and we’ve got the Boehner plan, which is catastrophic mean spiritedness,” he said. “Poor people will lose based on both plans. Working people will lose based on both plans.”

Ezra Klein of the Washington Post tweeted today, “If politicians had to cut programs rather than just ‘discretionary spending,’ the politics of spending cuts would be very different.”  I’m not sure that I agree.  Though I think it would be harder to justify the “savings” if there were actual people one could point to who would be the losers in a debt ceiling compromise, as long as those people were poor, I’m sure politicians could call the cuts “waste and abuse” savings.  In a time of such extreme economic hardship, I don’t think Congress is going to find trillions of dollars of “waste and abuse.”  It’s not waste and abuse in federal programs that got us into the current budget situation.  Instead, what the deal-makers are likely to find is plenty of room to cut “discretionary spending,” a euphemism for programs for the poor with large budgets because there are tens of millions of people who rely on them.  Unfortunately because catering to poor people’s interests isn’t a political imperative for either party, those are the programs that are almost sure to see cuts.

Ideally, President Obama will recognize that the political reality of a divided Congress is no reason to throw the poor under the bus.  Our first minority President should take a moral stand for those Americans least able to ensure that politicians in Washington are keeping their needs in mind.  The Democrats in the House and Senate should only rally behind a plan that solves the current crisis with truly shared sacrifice, rather than austerity that falls hardest on those that can least afford it.  If all it takes is a political crisis to cause Democrats to forget their progressive ideals and deal away programs so important to the lives of so many Americans, we can count on plenty more crises to come.

Golinski deals with a staff attorney for the Ninth Circuit Court of Appeals in San Francisco who is legally married to her wife under the laws of the State of California.  She attempted to enroll her spouse under the Federal Employees Health Benefits Plan, but her application was rejected because the federal Defense of Marriage Act prohibits the federal government from recognizing same-sex marriages or extending benefits to these unions.  She thereupon sued the federal Office of Personnel Management, contending that DOMA is unconstitutional under principles of Equal Protection.

In the first official brief by the DOJ on this issue since Eric Holder announced that the Justice Department would no longer defend DOMA in court, the government comes out swinging.  Analyzed by Professor Huhn, a constitutional law scholar at the University of Akron:

The brief itself is powerful and concise.  In the first portion of the brief (12 pages, double spaced) the government contends that gays and lesbians are a “suspect” or “quasi-suspect” class and that the law should therefore be evaluated under a heightened scrutiny standard.  In the second portion of the brief (5 pages, double spaced) the government argues that the law fails heightened scrutiny.

Read the whole brief HERE.

Overall, 60% of students in Texas, the country’s second largest public school system, are suspended (in-school or out-of-school) or expelled at least once between 7th and 12th grade.  1 in 7 students was disciplined eleven or more times.  This trend is part of a 20-year trend toward “zero-tolerance,” that has lead the nation’s school discipline rate to double. Obviously, this should be concerning because students who are suspended or expelled are not learning.  If a student is suspended or expelled eleven times, then the student is not learning a lot.  Among the most disciplined students, half went on to spend time in juvenile justice facilities, making them more likely to repeat a grade and less likely to graduate.

The study, performed by the Council of State Governments and Texas A&M University, found that schools with very similar demographics had drastically different rates of suspension and expulsion of students.  Only about 3% of school discipline offenses have punishment mandated by state law, such as offenses involving guns or drugs.  The vast majority are discretionary offenses, leaving the appropriate action up to teachers and school officials, often for violations of the school’s code of conduct or other relatively minor offenses.

“The research showed that while some high-poverty schools suspended students at unexpectedly high rates, others with strikingly similar characteristics did not. The same discipline gap was clear for prosperous, suburban schools and small, rural schools; some were harsh, and others with nearly identical qualities were not.

“’It’s a really important finding,’ said Russell Skiba, an Indiana University professor who has studied discipline issues for 15 years. ‘It says it’s not totally about what kids and communities bring but it’s a choice that schools make.’”

The study also showed significant differences in disciplinary outcomes by race, even when controlling for other factors such as type of offense and socioeconomic status.  “Minority students facing discipline for the first time tended to be given the harsher, out-of-school suspension, rather than in-school suspension, more often than white students, the study said…A disproportionate number of minority students also ended up in alternative classrooms, where some have complained that teachers are often less qualified.”  70% of black girls had been suspended, compared to only 37% of white girls, despite often committing the same offenses.

The differences highlighted between schools with similar demographic qualities demonstrates the reality that “zero-tolerance” and suspension/expulsion policies are not the only way to deal with school discipline.  Many schools have had success reducing disciplinary actions, while increasing academic achievement and school attendance, using more positive, less punitive approaches to discipline that reward students for positive behavior and react to disciplinary issues with counseling and guidance, instead of automatic suspension.  This report has caught the attention of Texas legislators, as well as the national media.  Hopefully, it will be a step toward the reconsideration of policies that unfairly and unnecessarily keep minority students and students with disabilities out of the classroom, while doing nothing to make school a positive learning environment that students actually want to be a part of.

Doug Otto, superintendent of schools in Plano, Texas, said:  “The right kind of intervention in a timely way can make all the difference in the world for most kids.”

On Wednesday July 13, the Southern District of New York preliminarily enjoined the law’s enforcement.

Why? The deceptive quasi-medical services at issue were provided gratis by centers that, for religious reasons, do not provide referrals for abortions or emergency contraception. As a result, the court found that the centers’ religiously motivated services could not be “commercial speech.” The court then found that the law was likely to crumble under strict scrutiny for “compel[ling] [the centers] to speak certain messages” and failing to meet the First Amendment’s narrow tailoring requirement for burdens on speech. The nail in the coffin came with a finding that the law’s definition of “pregnancy services center” was unconstitutionally vague as the enumerated factors in the definition were nonexclusive.

The court noted the seriousness of the problem the City Council had tried to address. Namely, that “unlicensed ultrasound technicians operating in pseudo-medical settings can spawn significant harms to pregnant, at-risk women who believe they are receiving medical care.” But at the end of the day, the court set aside the law, handing a victory to the centers and a loss to the vulnerable.

Disclosure: The author of this post interns for the New York City Law Department, the organization defending the crisis pregnancy center law.

Denniston takes aim at “conservative” justices and “liberal” justices alike.  Defining “activist” as “decid[ing] a case on a broader legal basis than is necessary,” Denniston commented at length about:

- Justice Kennedy’s overly broad ruling in a chemical poisoning prosecution case, in which Kennedy “chose not to confine the ruling to a simple declaration that a person facing a criminal trial may sue to challenge the constitutionality of the law he allegedly violated, but chose instead to decide a quite abstract question of whether the Constitution’s protection of ‘federalism’ is a guarantor of the civil rights of citizens of the states”

- Justice Sotomayor’s creation of “a virtually open-ended “public emergency” exception to the Sixth Amendment’s Confrontation Clause.”

- Justice Kagan’s decision in a case regarding police authority to interview a child about a sex abuse case, to create — “in what for all the world seemed like an advisory opinion – a completely unprecedented right of public officials to appeal lower court rulings on their legal immunity, even though they had won such a case below.”

- Justice Alito’s approach to the exclusionary rule, which “pressed close to the point of ruling that the rule could only be enforced in the most outrageous cases of stubbornly deviant police misconduct”

- Chief Justice Roberts’ “broad constitutional ruling in the course of deciding what had seemed like a minimalist dispute over the bankruptcy law rights of the estate of the former topless performer Anna Nicole Smith”

- Justice Clarence Thomas’ decision in a drug manufacturer case, which was so broad that he “lost his majority for the part of the opinion in which he borrowed the rather odd musings of a law review article to broaden the scope of the Constitution’s Supremacy Clause”

Read the full post HERE.

Leal was one of fifty-one plaintiffs in an International Court of Justice case brought against the United States in 2004, Avena and Other Mexican Nationals (Mexico v. United States of America), in which the ICJ ruled that the United States was obliged to review and reconsider sentences of Mexican nationals convicted without being notified of their rights under the Vienna Convention.  In Medellin v. Texas, the Supreme Court decided in 2008 that the Vienna Convention was not a self-executing treaty and did not give rise to rights enforceable in U.S. courts without implementing legislation enacted by Congress.  Leal’s lawyers recently requested a stay from the Southern District of Texas, arguing that Leal had a due process right to stay alive until Congress voted on such legislation, but were rebuffed.  Despite pressure from human rights groups, Texas Governor Rick Perry has indicated his intention to proceed with the execution.

Read the full New York Times article here.

To reach today’s result, the Court relied on Davis v. FEC. Davis was decided in 2008 and in it the Court struck a provision of the Bipartisan Campaign Reform Act that allowed candidates opposing an individual who spent $350,000 to raise three times the statutory maximum prescribed for individual donors. Davis turned on potential chilling effects and Justice Roberts relied on that same logic in finding Arizona’s law an unconstitutional burden on political speech. Functionally, he reasoned, trigger provisions force a privately financed candidate to fundraise for a publicly financed one. The majority feared that the result of this system would be less speech.

The Court rejected two distinct rationales in striking the law. First, it dismissed an equalizing rationale as insufficiently compelling to justify the law’s burden on speech. Second, it dismissed an anti-corruption rationale predicated on two arguments: that public financing was necessary to prevent special interests from capturing candidates, and that public financing was not sustainable absent a cost-saving trigger provision. With regard to the anti-corruption argument, the Court’s objection was to the latter premise, regarding sustainability. Justice Roberts did “not . . . call into question the wisdom of public financing.” In fact, while those public financing laws that rely on triggering provisions may be in some jeopardy after Bennett, the Majority pointed specifically to its 1976 holding in Buckley v. Valeo in emphasizing the validity of public financing. Quoting Buckley, Justice Roberts said, “’Governments may engage in public financing of campaigns’ . . .” Going forward, even those systems that rely on triggering provisions may survive where their form is distinct from the Arizona system invalidated this morning. In Maine, for example, a triggering provision accounts for independent expenditures by entities supporting the publicly financed candidate and opposing the privately financed one. As a result, if independent expenditures benefit the publicly financed candidate in the aggregate, the likelihood of that candidate receiving matching funds is diminished.

Justice Kagan wrote a forceful dissent from the Majority’s opinion. In it, she asserts that Arizona’s system generated more speech and advanced a compelling state interest – mitigating corruption. Justice Kagan described the triggering provision as a semantic adjustment to the system approved in Buckley. The triggering provision, in her view, was an attempt to spare taxpayers expense by allowing candidates to run a viable campaign without providing excess funds.

The dissenters emphasized that the Arizona law did not discriminate on the basis of viewpoint, nor chill speech. Rather than a burden, the Citizen’s Clean Election Act was a subsidy. That the Act placed no ceiling on speech ensured that political debate would remain robust. Like the Majority, the dissenters cite Whitney v. California for the proposition that more speech ensures that “’falsehood and fallacy’ are exposed.” In fact, both the Majority and dissent also turn to Citizens United v. FEC in asserting that “’more speech, not less, is the governing rule.” Justice Kagan, however, noted that in Buckley, public financing was not viewed as a burden at all and so did not trigger strict scrutiny.

Justice Kagan opened her dissent by asserting that the Court was wrong to dismiss the corruption rationale for Arizona’s law. She closes on that point as well. CRCL invites commenters to discuss the tension between the Majority and dissent, and dissect the degree to which public financing can address the threat of corruption in our elections.

Disclosure: This article’s author is currently interning at the Campaign Legal Center, a non-partisan reform group located in Washington D.C. The views and descriptions articulated above are the author’s own, and should not be associated with the Campaign Legal Center.

Tom Toles of the Washington Post sums up the two decisions:

New York will join Iowa, Massachusetts, Connecticut, New Hampshire, Vermont and the District of Columbia in offering same-sex couples equal status under the law. As public pressure for a vote on the measure increased in recent weeks, lawmakers convened to discuss language that would explicitly exempt religious institutions from any obligation to perform same-sex marriages. The legal relevance of that language is unclear, but the legal status of gay couples in New York is not—they now enjoy the same rights as any other couple.

Questions regarding President Obama’s approach to advancing an equality agenda will remain salient, but tonight advocates celebrate a notable victory. New York becomes the largest state to entrench marriage equality, and the legislature’s reversal may create momentum for proponents nationwide. The result will likely be attributed to shifting public opinion. A Quinnipiac poll cited by the New York Times suggested that support for gay marriage amongst New Yorkers rose from 37% to 58% in the two years separating the failed vote from the successful one.

Refusal to recognize same-sex couples stigmatizes gay marriage and so condones treating gay couples with diminished respect. Tonight, in theatrical fashion, New York forcefully disavowed that message. Whether motivated by the views of constituents or matters of conscience, Albany’s repudiation certainly creates hope.

Justice Scalia, writing for the majority, focused on the “commonality” requirement of Rule 23(a), saying that an employer could not be sued for thousands of adverse employment decisions nationwide “some glue holding the alleged reasons for all those decisions together.” Parts I and III of Scalia’s opinion garnered unanimous 9-0 support. However, Justice Ginsburg, joined by Justices Breyer, Kagan, and Sotomayor, strongly dissented against Part II of Scalia’s opinion. While the majority considered and dismissed all theories for certifying the suit, Ginsburg’s dissent would have remanded the plaintiff’s alternative certification claim for further consideration in the lower courts.

The full opinion is available online at the Supreme Court’s website.