Tuesday, October 19, 2010

Is Judge Phillips's Decision on DADT Vulnerable to Reversal? Professor Darren Hutchinson Thinks So.

By Onye Chinwah

On October 12, 2010, Judge Virginia A. Phillips declared Don't-Ask-Don't-Tell unconstitutional and enjoined its enforcement. In particular, the judge held that DADT violates the Due Process and First Amendment rights of lesbians and gays. But Darren Hutchinson, Professor of Law at American University Washington College of Law, notes that the judge's ruling is flawed and therefore vulnerable to reversal.  He writes:

There are three elements to the decision that could result in a reversal.
First, the court does not substantially discuss "deference" to the military. Although military deference has often resulted in unjust rulings, it is still a doctrine that the Supreme Court applies in cases challenging both military practices and federal statutes regulating the military. I would like to have seen more discussion of this subject in the opinion.
Second, the court applied "heightened scrutiny" to determine whether the policy violated the Due Process Clause of the Fifth Amendment. Heightened scrutiny refers to a more rigorous judicial test that usually applies when important rights are at stake or when the government is engaging in certain impermissible forms of discrimination.
The court reasoned that the Supreme Court ruling in Lawrence v. Texas and Ninth Circuit caselaw mandate the application of heightened scrutiny. It is unclear, however, whether Lawrence requires the application of heightened scrutiny. At least one federal appeals court has ruled that it does not, and many progressive legal scholars have, in fact, condemned the case for not being as serious about anti-gay discrimination as many commentators believe it is. Furthermore, the specific Ninth Circuit test is not widely applied in constitutional cases, and this could present problems if the litigation reaches the Supreme Court.
The First Amendment ruling also raises questions. Several other courts have denied that DADT raises First Amendment questions. These courts reason that admissions of sexual orientation simply inform the military that the individual fits within a prohibited class of service members. I do not believe that the issue is this simple, and neither does the federal judge in California. Nonetheless, I suspect that the government will contest this portion of the ruling as well.
There is one additional issue that I do not believe will lead to a winning argument for the government. The court's injunction permanently enjoins the military from enforcing DADT. The government argued that the court should have issued a more discrete injunction and enjoin enforcement of the policy only against members of The Log Cabin Club (the conservative gay organization that brought the litigation). Although some conservative caselaw calls for limited injunctive relief, precedent supports generalized injunctions in these circumstances.
In sum, I agree with the outcome of the case of much of the court's reasoning. I have only highlighted these weaknesses to inform readers who abhor the policy that the fight against it is not over.

Monday, March 29, 2010


Today's Symposium was an amazing success! I want to give a special THANKS to our Symposium Chair Kenya Wells for putting this all together! As promised, all our speakers were amazing - a big THANKS to them too!

In case you couldn't make it, I was live blogging during Panel 2 and 3 so be sure to read the transcripts below. I included links, etc. to try to narrate what it was all about. Also, take a look at a re-cap of Panel 1 posted by Notes Editor, (and one of next year's EICs!) Mary Murphy.

Panel 1 Recap

The first group of panelists (Richard Lavallo from Advocacy, Inc., Deborah Fowler from Texas Appleseed, and Mark Levin from the Center for Effective Justice) discussed many of the larger systemic problems that contribute to problems in the juvenile justice system. Mr. Lavallo shared a video documentary which included interviews with youth with mental health issues at Texas Youth Commission. He noted the significant lack of planning involved when youth with mental health issues are released from TYC. These youth are often released to more rural areas without the mental health resources (both professionals and medication) as readily available as they were at TYC. Mr. Lavallo presented that many of these youth have mental problems that perhaps should preclude them from standing trial in the first place. He also noted that these youth are, in most cases, victims of abuse and trauma themselves and are entitled to treatment. TYC's incarceration policy includes use of force and restraint, which tends to exacerbate the affect of trauma on youth with mental health issues.

Ms. Fowler introduced the concept of the "School to Prison Pipeline." Texas Appleseed is conducting research on the statistic that the number one indicator of an individuals future incarceration is past disciplinary action taken against them in schools. She noted that this means, primarily, that schools' discipline procedures are failing to improve behavior in students. Ms. Fowler also discussed the way in which schools "took and ran" with the idea of zero tolerance policy from the juvenile criminal system. While schools are required to report certain behaviors, discretionary referrals far outnumber mandatory referrals.

Finally, Mr. Levin briefly discussed changes in the juvenile justice system that have decreased the number of youth in TYC. Youth who commit misdemeanors now go through juvenile probation rather than immediately to TYC, and TYC has instituted "length of time" review panels that seeks to be proactive in evaluating the appropriate time necessary for a youth's incarceration in TYC. Mr. Levin noted that peer contagion is a serious problem in TYC, and efforts should continue to mete appropriate consequences to youth who have committed less serious offenses.

Tuesday, March 23, 2010

2010 Symposium MONDAY, March 29!

This year's topic is juvenile justice - and we have some AMAZING speakers lined up. Check out the info:

Please join the Texas Journal on Civil Liberties and Civil Rights in
conjunction with the American Journal of Criminal Law for a symposium
on Juvenile Justice: the Rights of Minors in the American Criminal
Justice System next Monday, March 29, 2010 starting at 9:00 a.m. in
the Eidman Courtroom, at the University of Texas School of Law.
The School of Law is located at 727 E. Dean Keeton, Austin, TX 78705.
The event is free and open to the public. Parking is available on Dean Keeton
and in the San Jacinto parking Garage, located on campus. The following link
provides directions to parking in the San Jacinto garage:
List of events:

9:00-9:10: Welcome
9:15-10:30 Meeting the Needs of Juvenile Offenders: The Legal and
Policy Response featuring Deborah Fowler of Texas Appleseed, Richard
Lavallo of Advocacy Inc., and Marc Levin of Texas Public Policy
10:45-11:45 Dealing with Serious Juvenile Offenders in the Juvenile
Justice System featuring Riley Shaw of the Tarrant County District
Attorney’s Office and Kameron Johnson of the Travis County Juvenile
Public Defender’s Office
12:00:1:00 Lunch in the Sheffield Room
1:15-2:30 National Juvenile Justice Reform Initiatives featuring
Michele Deitch of the University of Texas Schools of Law and Public
Affairs, Jody Kent of the National Campaign for the Fair Sentencing of
Youth, and Cynthia Totten of Just Detention International

5:30-7:30 Happy Hour at 219 West, located at 219 West 4th St., Austin, TX 78701

For further inquiries about the symposium, you may contact us via email at tjclcrsymposiumchair@gmail.com. We sincerely hope to see you in the Eidman Courtroom on Monday!

Hope to see you there!

Also, here is the video about mental illness of juvenile offenders that Richard Lavallo from our first panel will be showing:

OIO Mental Health Discharges (Draft 7) from Will Harrell on Vimeo.

Monday, March 1, 2010

Unlawful Search and Seizure: Like Taking Candy From A Baby

Since 2002, Texas' Department of State Health Services has been storing samples of newborn babies' blood for research on birth defects. Although it sounds like reasonable research, the Department failed to clear one tiny detail - consent. In other words, if you've had a baby in Texas since 2002, there is a good chance the State has some of your little one's DNA stored somewhere in a Texas A&M University lab. Creepy.

Thankfully, last week the Department announced it would destroy the blood samples (totaling to over 5 million) as part of a settlement of a federal lawsuit filed by the Texas Civil Rights Project. The lawsuit alleged that the State violated the constitutional protections against unlawful search and seizure. As a result, any blood sample collected without consent will be destroyed. Additionally, the Department must publish a list of all the research projects that used the blood samples. That should be an interesting read...

This is so scary to me. Not only is it an unlawful seizure, but it is the biggest privacy breach I can think of. The state has actual DNA - proof that Child A will develop X genetic disease later in life. What if that information somehow ended up in the wrong hands? A health insurance company for example. Exactly the horrific situation from the movie Gattaca (you should watch it...even if you don't like Ethan Hawke). Basic plot: as a newborn you are screened for diseases and then discriminated against depending on your "superiority."

For a State that makes such a big deal out of conducting open meetings, it seems extremely suspect that they would keep this scheme a secret. If they aren't doing anything wrong or controversial with the blood, why would they keep it so hush hush? I'm sure millions of parents would consent to donate the blood to the cause as long as they knew where it was going - in other words, I have a hard time believing that getting consent would significantly hinder any sort of valid scientific innovation.

Thoughts? Please post comments!

Tuesday, February 2, 2010

Secrets, Sex, and Controversy

It's 2010 and, after a long break, we're back in the swing of things at the law school. Our website is finally functional (mostly...working on that) and we're already working on our next publication. Even more exciting - we're planning for our Spring Symposium! The topic is Juvenile Justice and it's going to be awesome. Tentatively it will be sometime the week of March 29. I'll be sure to keep you posted. So let's get to it:

Mum's the Word: With a Twang

In mid-December, a bunch of Texas cities and elected officials filed a lawsuit against the state. They claim that part of the Texas Open Meetings Act is unconstitutional as it infringes on elected officials' First Amendment Free Speech rights. The way the law stands, a "quorum" of elected officials cannot discuss issues facing the public without notice that they will be doing so. Historically, this was meant to combat secretive deals and deliberations - the public had to be "invited," so to speak, to discussions about public policy. But now, with changes in technology, this prohibition has been extended to email communications about public business, facebook posts, and twitter. The idea behind it is simple: PUBLIC business should be discussed in PUBLIC...otherwise it's private (or at least not "public"). The officials seem to be claiming that the Open Meetings Act is chilling their speech - i.e. making them afraid to even contact other representatives at all. To me, this notion seems ridiculous. I have an EXTREMELY hard time believing the public would have a problem with certain communications:
@texasshotgunfan Hey old man, how's about we get blasted this weekend and watch the Superbowl?
@huntfishordie Sounds great! I'll bring the scotch and you bring the babes. My team is going to KILL your team!
@texasshotgunfan @huntfishordie Why don't you ever invite Houston representatives to your parties?
@htownhunk Because Houston is too close to College Station. And you always scare off the girls.
@texasshotgunfan Whatevs. There ain't no party like an H-Town party.
@htownhunk Enjoy your sausage fest.

But seriously (and I in no way meant to suggest anything about our representatives, or offend anyone who might have those twitter names - it was merely an exaggerated way of getting my point across. The Houston thing is true though)...I feel that it is pretty obvious the sorts of discussions that would be considered public matters or not. A spokesman from the Attorney General's office said:
If a quorum of public officials wants to discuss public business, the law requires that they do so in public. In this case, elected officials, municipalities and critics of open government are turning the First Amendment on its head. Open meeting laws have been upheld under the First Amendment by every court in the country that has ever considered the issue.

Should be interesting to see how it pans out.
For more info, read this.

Transgendered New Yorker Files SuitS

Last week, Angelina Mavilia, a transgendered woman, filed suit against NFL player Eric Green for sex assault alleging forcible sodomy. She says they met in a casino, went back to his condo, and then upon discovering that she was transgendered, he sodomized her and stated, "This never happened. You'd better not tell." Obviously it's too soon to tell if this is just a case of badgering money out of a sports star (as many commentators argue) or more proof of bigger problems - the discrimination against transgendered people and the stigma that is associated with it.

The same woman also filed suit against the city of New York claiming that she had been harassed by police. After being arrested for trespassing, Mavilia claims that a female cop demanded she remove her bra and panties and then exclaimed, "It's a girl!" upon looking at her genitals. She was later put in jail with a male after another officer made her strip down. The officer came to the conclusion that, "You're not fooling me; I know you were not born a woman, I can see your plastic surgery."

For another take on this story, check this blog out.

The End of "Don't Ask, Don't Tell"?

In last week's State of the Union address, President Obama said:

This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.

And now, more officials are supporting his plan to repeal the law. Today, Defense Secretary Robert Gates and chairman of the Joint Chiefs of Staff Admiral Mike Mullen spoke out against "Don't Ask, Don't Tell." Hopefully this plan will be put in action soon and, as Adm. Mullen put it, soldiers will no longer have to "lie about who they are in order to defend their fellow citizens."

Please, feel free to comment or share any news with us.
~ Andréa
Email me at: tjclcrteched@gmail.com