Texas Journal on Civil Liberties and Civil Rights

Learning from Our Parents’ Protests: Occupation Unidentified

2011-12-15T11:07:00.000-06:00

One consistent critique of the Occupy protests has been their lack of leadership. Michael Moore called it a “leaderless movement” during his visit to the Denver protests last week. What Moore seems to admire about the movement is precisely what has been a sore spot for Denver Mayor Michael Hancock. As concerns about sanitation, health, and safety in Occupy protest sites grow, particularly as winter approaches, it is easy to understand the Mayor’s frustration. It is considerably more difficult to negotiate arrangements for sanitation, and health and safety with a leaderless group.

Earlier this week Denver Occupy acquiesced to the Mayor’s insistence that some kind of leadership be selected for the group. Inspired by the Citizens United ruling treating corporations as people, the Denver protestors elected a well-known fixture at the protest in a landslide, Shelby. Charismatic and photogenic, Shelby has been receiving a lot of attention, which she seems to be heartily enjoying. It should probably be mentioned that Shelby is a three year-old Border Collie mix. No word from the Mayor’s office on how this new diplomatic relationship is progressing, though I suspect there are concerns about the Mayor bribing the young and impressionable Shelby with cookies, ear rubs and walkies.

Perhaps a tongue and cheek selection of a leader is the only kind possible with the Occupy protests. The protests consist of a demographically diverse group and it seems that each protestor is there for a different reason. This lack of focus has been fodder for much criticism and humor at the expense of the movement. To outsiders at least it seems the only thing that ties this protest together is outrage. Some Occupy protests have developed elaborate ways of attempting consensus (see Kristine Baumstark’s October 17, 2011 post in this blog; A similar system is in use at the Denver protest), which may help protestors feel like they are being heard, but are unwieldy and ill-adapted to timely or “big picture” decisions. The lack of national leadership makes changes in national government policy virtually impossible. Without leadership to articulate a coherent purpose there is no way to negotiate with or appease this crowd.

A lack of leadership, coupled with (or caused by) unfocused outrage, makes it difficult to envision the Occupy movement doing more than fizzling out when the cold hits. Apart from hoping its press attention will spur broader public engagement, it is difficult to see just how the movement hopes to affect change. This is not to criticize the protestors’ ideals (goodness knows, there are a number of subjects of outrage represented that I agree with), but generalized outrage does not appeal to me for the same reason that I’ve never felt the urge to scream at an ocean. Sure you can do it, but why?

Previous civil rights movements’ protests were successful in affecting change because they were focused. When disability advocates in the 1960s and 70s held sit in protests there was little confusion as to why they were there – they were outraged, but with a purpose. Rather than protesting for disability rights generally they would have a sit in at the regional transportation authority protesting for public transportation accessibility or lobby for what would become the Americans With Disabilities Act.

The point is this: The jokes about the Occupy movement are getting tired, illnesses and injuries among the protestors are increasing, and it’s getting cold outside. It is time for the protestors to articulate a vision for their movement or find leaders who can do it for them. Failing to do so gives the people in power a pass to ignore the popular movement as a curio of flashes and bangs that disappear in the blink of an eye and are forgotten almost as quickly.

Mandatory Child Abuse Reporting

2011-12-15T11:04:00.000-06:00

The world of sports was rocked this week by former Penn State assistant football coach Jerry Sandusky’s indictment for allegedly abusing eight young boys over the last fifteen years.

As the week progressed, it was revealed that Penn State officials knew about Sandusky’s actions, at least to some extent, and failed to take action. The fallout included the firing of long-time head football coach Joe Paterno and the departures of university President Graham Spanier, Athletic Director Tim Curley, and Senior Vice President for Finance and Business Gary Schultz. Additionally, a graduate assistant coach who witnessed Sandusky abusing a young boy and did not report it to the police has been placed on administrative leave.

Paterno’s firing, although supported by much of the country, has raised the question in many people’s minds: Was he required to go to the police, or did he fulfill his duty by telling his superiors about what his graduate assistant witnessed?

Based on statements made thus far, it appears unlikely Paterno will face charges for failing to report to the police because he fulfilled his duty by reporting to his superiors, the athletic director and vice president of the university. However, some people familiar with Penn State are speculating that Paterno filled such an authoritative role within the university that his decision not to go to the police guided everyone else in their inaction.

Almost every state, including Pennsylvania, has legislation naming specific professions whose members are mandated by law to report mistreatment of children to law enforcement. Those statutes typically include professions such as social workers, teachers and other school personnel, doctors, child care providers, and law enforcement officials. Pennsylvania’s statute does not require someone in Paterno’s position to report suspected abuse to law enforcement.

Many mandatory-reporting statutes specify which communications are privileged and which are beyond that privilege and must be reported. For example, states often exempt communications between an attorney and his or her client, but require communications between a doctor and patient or husband and wife indicating possible abuse to be reported.

In making these laws, states must strike a balance between a desire to protect children and an individual’s constitutional rights. Most recently this analysis has arisen in connection with mandatory reporting statutes that compel a clergy member to disclose information in a manner that impinges on his religious beliefs. Only a few courts have spoken on this conflict so far, as many of these statutes arose more recently after the Catholic priest child abuse scandal. Those courts that have addressed this issue tend to support the state and uphold the reporting statute.

The ACLU has also spoken out against expanding mandatory reporting statutes in some instances. Last spring the ACLU of Illinois described a pending bill that expanded mandatory reporting of child abuse to cover every employee or volunteer of any organizations that provides or refers for reproductive health care as “creating cumbersome and unnecessary bureaucracy and training requirements for non-profit organizations and diverting time and money from patient care.”

Although it appears Paterno did not violate a legal duty to report, it remains to be seen whether mandatory reporting laws will be changed in Pennsylvania or elsewhere as a result of these events. The media storm will inevitably continue and people will debate Paterno’s legacy, but we’d do best to remember the true victims of this abuse – the young boys whose lives were changed forever.

Zombify Wall Street

2011-11-17T10:58:00.001-06:00

This is a post in two parts. Part I approaches the Occupy Wall Street movement as a largely un- or misinformed person, talking like I know what I’m talking about. In other words, it’s a commentary/discussion of OWS before the author did any research whatsoever. Knowledge about the movement was limited to brief conversations with other people and general, if light, media awareness. Part II is a reflection on Part I based on subsequent research.

Part I

As a mathematic equation, I understand Occupy Wall Street (OWS) as follows:

Variety of People+Varying Degrees of Anger/Dissatisfaction+Extensive Media Coverage=OWS.

Notably this is only one element (hunger for brains) away from a zombie occupation.

Humor aside, having a hunger for brains seems like it might be an improvement for the protestors. As it stands, they don’t appear to have a hunger for anything besides doing “something” about the 1%. Indeed, the title “Occupy” is apt: all the protestors seem to be doing is occupying, camped out in front of building were other people come to work.

I am, of course, being unfair. OWS is at a protesting disadvantage because it’s not protesting anyone or anything in particular. There is not a particular company, government body, or individual who has specifically earned OWS’s ire. It’s protesting “the way things are.” It’s not so much protesting the 1%, that top tier of economic society where all the wealth is. It’s protesting the fact that such an imbalance exists. And since there is no particular business or person to be mad at, OWS has settled on the most obvious physical manifestation. In New York, that’s Wall Street. In other cities protestors have decided upon city hall or some other equivalent representation of “the institution.”

And let’s be honest, when we talk about the imbalance that has brought occupiers to the streets, I think we all carry a little chip on our shoulders. If it’s really true that 1% of the people in our country have most of the wealth (and I honestly don’t know, I just have seen signs to that effect), then I can certainly see that some protesting is in order. Or at least a strongly worded letter. Because you and I and everyone else want some of that money, need some of that money. And if the current economic or government or social system is encouraging this type of imbalance then we should encourage change in those systems.

The problem then, is not that the occupiers don’t have a valid complaint. In fact our country was founded on a pretty similar complaint. The problem is that OWS has identified a predicament without proffering a solution. Imagine, for example, if the Continental Congress had issued their grievances in the Declaration of Independence without later establishing a working and lasting resolution in the Constitution. A solution is one of the reasons we had the American Revolution and not the French Revolution (yes, I know about the gross historical inaccuracies here. It’s only for illustration).

Obviously the analogy is asking a lot from the protestors who appear (from pictures) to be a mix of honest, hardworking, recently unemployed, average Americans and vagrant hippies. But it’s not necessary for the protestors to channel the Founding Fathers. Some indication of some sort of leadership or clear goal or demands would suggest more is going on behind the eyes than a dull throb of angst, simmering occasionally to anger.

I guess, in summation, that I agree with OWS that there is a problem with the balance of money and power in our society and I think it’s fine that they’re waving around signs saying so. But I don’t trust or expect them to do anything lasting about it. And so, frankly, I expect OWS to go the way of Elian Gonzales, a vaguely remembered event that used to be a big deal.

On the other hand, if OWS develops a hunger for brains, I think we’ll be talking about it for years to come.

Part II

Okay. So I want to spend as little time as possible apologizing for anything I wrote above that is inaccurate, insulting, or otherwise an indication of gross ignorance. The ignorance was intentional and is intended to demonstrate a possible attitude an average “mind-my-own-business” American may have to OWS. Unfortunately, I don’t know what to think anymore about anyone’s attitude toward OWS.

I am simply blown away by how much is being said and written about OWS. To the point where I don’t really know what to say that hasn’t already been said, it would seem, hundreds of times over. And this is after seven weeks (ending November 4).

I’ve faulted OWS pretty heavily for the lack of a clear message. And I am far from being the only one. But after learning more, I’m less certain that’s a bad thing. The movement is very, very young. Yes, it is made up of a wide collection of people with amorphous views all united behind generalized dissatisfaction with the current economic situation. And no, they don’t know what exactly to do about it. And as far as I can tell, no one is really talking for OWS; everyone is talking about OWS. But, I have been convinced that all this is just fine for right now. I am convinced that it is more important for OWS to focus on surviving than it is to focus on clear demands.

I did a Google Trends search, which allows you to look at the frequency with which terms have been searched on the engine and, as you might expect, “Occupy Wall Street” skyrockets in the end of the third quarter of 2011, coinciding with the OWS’s first activities in mid-September. Just for perspective, I compared the result with searches for “Facebook,” “Google,” and “Wikipedia.” OWS didn’t measure up (Facebook has the commanding lead). The most interesting comparison I made was to “Tea Party,” which had a similar meteoric rise in early 2009, coinciding with the movements February 2009 protests. Both also rapidly tail off. Fortunately for the Tea Party, interest has continued to some degree and so has the Party itself. It’s too early to tell whether, OWS will have a similar continuing existence, or if it will fade into obscurity.

If it does fade, it will not matter what OWS demands. And survival may be a struggle. With the winter coming on fast, Occupy Wall Street may be forced to stop occupying Wall Street. It remains to be seen how much the solidarity and loyalty of the organization depends on its literal visibility on the streets of New York and other cities. What form will the movement’s strong social network presence take? Can a leader or a group of leaders emerge from the morass? Difficult times are ahead.

But like a rough stone rolling, each obstacle that OWS manages to overcome will help to refine and define the movement. If it survives, it will prove that it is worth listening too. And I have no doubt that if it survives, the movement will have a found a clear voice.

And it will say “BRAAAAAAIIINS….”

Just kidding.

Glen Ellsworth

Deliberately Indifferent Training and Brady Violations

2011-11-11T15:55:00.000-06:00

John Thompson spent 18 years in prison following convictions for attempted armed robbery and murder. A month before his scheduled execution, an investigator hired by Thompson’s lawyers made a discovered a lab report which exonerated Thompson of the attempted robbery charge. The report contained results of a test conducted on blood left by the robber on the clothing of one of the victims. The robber had type B blood. Thompson’s is type O. The prosecutor in Thompson’s attempted robbery case deliberately withheld the test results from defense counsel despite Brady v. Maryland in which the Supreme Court held that a prosecutor has a duty to disclose exculpatory evidence to the accused. At Thompson’s subsequent trial on the murder charge, he understandably declined to testify so that the attempted robbery conviction could not be used for impeachment purposes. In course both convictions were overturned. A second trial on the murder charge produced a defense verdict after 35 minutes of jury deliberation.

When Thompson sought compensation from the District Attorney’s office, his legal options were limited. The actual prosecutors who committed the Brady violations were immune from liability. Thompson could only successfully bring a §1983 action against Connick, the New Orleans District Attorney, in his official policymaker capacity, under a theory of municipal liability. Thompson could not sue Connick on the basis of respondeat superior, disallowed by Monell v. New York City Department of Social Services. A municipality is subject to liability under § 1983 only when the violation of the plaintiff's federally protected rights was caused by enforcement of a municipal policy, a custom or practice, or a decision of a final policymaker.

Under City of Canton, deliberately indifferent training may also give rise to §1983 liability. §1983 municipal liability may be based upon deliberately indifferent training that was the moving force of the violation of the plaintiff's federally protected rights. To make out such a claim, the plaintiff must demonstrate specific training deficiencies, and either a pattern of constitutional violations of which policymaking officials are charged with knowledge, or a showing that training is obviously necessary to avoid constitutional violations. Thompson sued under the Canton supported theory that additional training of the District Attorney’s employees was obviously necessary to prevent Brady violations.

The overwhelming evidence provided by Thompson was breathtaking. The jury found for him in less than thirty minutes to the tune of 14 million. The Fifth Circuit affirmed but the Supreme Court reversed. The Court did not take issue with the jury instructions or with the facts as presented. So what could possibly have been the problem? The majority opinion essentially claimed it is impossible for a jury to ever find deliberate indifference when it comes to prosecutors and Brady violations, regardless of the facts. Prosecutors are already trained in the law. Therefore, it can never be obvious to a policymaker (the DA) that additional training in the law is needed to prevent constitutional violations on the part of subordinates. As such, deliberate indifference can never be established.

The opinion ignores the evidence in the record, shows contempt for the concept of jury fact-finding, creates a new, categorical exemption from current law for prosecutors (without admitting it), and leaves a wrongly accused man who spent 14 years wasting away on death row with nothing.

Will Ellis

Drug Testing For Welfare Recipients

2011-11-08T20:26:00.000-06:00

A judge in a Florida district court issued an injunction blocking a law that would require welfare applicants to submit to a drug test. Though the judge’s decision that such a test would be an unreasonable search under the 4th Amendment has triggered a prompt appeal from the Department of Children & Families and disapproval from the Governor Rick Scott, the issue is not unique to Florida nor 2011. Three dozen states have debated drug tests for people receiving state assistance in one form or another, with Arizona, Indiana, and Missouri passing such programs. Michigan instituted a program briefly in 1999 before ceasing it after a lawsuit was filed.

Unsurprisingly, the issue has come to the fore as the government labors to pay its bills and high unemployment rates persists. The arguments for and against the drug tests are relatively well-established. Proponents of the test argue that in order for the state to spend its funds wisely it should screen its recipients, and that drug testing potential welfare recipients is no different than companies drug testing potential employees. Opponents argue that welfare recipients do not represent the government in the same way that employees represent companies, and that requiring drug tests without individual suspicion reinforces stereotypes about drug use amongst the poor.

If the state denies funding to welfare recipients or the unemployed based upon drug testing, why not require any recipients of state funds, including corporate CEOs, to submit to similar testing? Recent examples of executive misconduct do little to dispel that reasoning. In fact, the Florida judge found a lack of a compelling state interest by citing statistics concluding that the percentage of welfare recipients who use drugs is in line with the rest of the general populace. The study has come under some criticism.

The purported wisdom of the government’s policy in Florida lies in the savings it provides. Previous attempts at instituting drug tests for welfare recipients had proven more costly than beneficial. In the brief period the Florida program was operational, it realized savings in part by seeing decreased welfare applications. However, there is no guarantee that this will continue. Instituting a drug testing policy certainly requires fixed costs, and eventually welfare recipients who are drug users might find a way to circumvent the testing requirements (for example, using a non drug-using friend or family member). Running a welfare program necessarily carries the risk that some of the money dispensed will be wasted. Adding another level of bureaucracy to address one negative consequence and that might create others (such as an increase in crime as drug users look for other sources of money) does not seem an effective answer. If a state government commits to a welfare program, it may be better off recognizing the reality that its program will not work perfectly, but that the differences it can make will outweigh the obstacles it encounters.

Charles Falck

Taking Students to Court for School Misbehavior

2011-11-06T15:10:00.000-06:00

In Texas, the municipal courthouse is the new principal’s office. School districts increasingly rely on ticketing to address low-level student misbehavior. This means more students are being fast tracked into the criminal justice system. Moreover, whether and when a school district issues tickets is completely discretionary. This means students from certain school districts, and minority students, are disproportionately ticketed and pushed into the criminal justice system.

Since the 1990s, Texas schools have begun commissioning and padding school-based police forces. Today, police patrol the hallways of most Texas public schools.

The increase in school-based policing coincides with schools’ increasing reliance on Class C misdemeanor ticketing to address student misbehavior. The percentage of non-traffic tickets issued to juveniles grew from 2% in 1994 to an astounding 40% in 2008. In Austin ISD, a recent 31% growth in police staff coincided with a 50% increase in student ticketing. Dallas ISD recently experienced a 24% growth in police staff and a corresponding 95% jump in ticketing. Overall, in the 2006-07 school year, Texas juveniles received a total of 275,000 non-traffic tickets.

The increasing use of ticketing as punishment for school misbehavior is concerning because of the criminal consequences for youth. Students receiving tickets must appear in municipal court. Students who are convicted have criminal records. Moreover, courts issue warrants for arrest when students fail to appear or pay the court-ordered fine. In other words, receiving a ticket for school misbehavior may put a student on the fast track to the criminal justice system.

The criminal consequences are doubly concerning because most tickets are issued for low-level, non-violent offenses. Only 12% of tickets issued during Texas’ 2006-07 school year were for violent or weapons offenses. The majority (52%) of tickets issued in 2006-07 were for the misdemeanors “disorderly conduct” and “class disruption.” The disorderly conduct and class disruption categories include typical, arguably trivial, school misbehaviors like using profanity, yelling out answers in class, physical scuffling with another student, throwing paper airplanes in class, and throwing food in the cafeteria.

School districts have wide discretion when it comes to ticketing. This means different districts answer the question of whether to ticket differently. Some districts ticket sparingly, while others ticket regularly. For example, in 2006-07, Humble ISD issued 431 tickets to its student body of 31,144, yielding a ticketing rate of 1%. Compare to Galveston ISD, which issued 921 tickets to its student body of 8,430, yielding a ticketing rate of 11%.

Different districts answer the question of when to ticket differently, too. For example, Austin ISD only issues tickets for fighting when one student assaults another, whereas Houston ISD issues tickets for various types of fighting, including “mutual combat” between two students. Districts also answer the question of when to ticket differently for students with different skin colors. Across the state, African American students are disproportionately ticketed. In a typical example, Dallas ISD issued 62% of its tickets to black students. Yet black students comprise only 30% of total enrollment.

Overall, recent growth in school-based policing had coincided with a vast increase in the number of tickets issued to Texas students for low-level, non-violent school behaviors. Therefore an increased number of students are pushed into the criminal justice system. Moreover, ticketing policies vary from school district to school district, and from student to student. Therefore students from certain school districts, and minority students, are disproportionately pushed into the criminal justice system. The overall increase in the number of tickets issued, and the discretionary nature of ticketing, must be addressed by the Texas legislature. Possible legislative solutions include (1) mandating a graduated model whereby students cannot receive tickets until their third consecutive offense, and (2) entirely eliminating ticketing for the low-level offenses of disorderly conduct and class disruption.

Note: All data and statistics referenced in this post are from a recent Texas Appleseed study.

Citation: Texas Appleseed, Texas’ School-To-Prison Pipeline: Ticketing, Arrest & Use of Force in Public Schools (2010), available at http://www.texasappleseed.net/images/stories/reports/Ticketing_Booklet_web.pdf.

Therese Edmiston

The Decline of African-American Players in Baseball

2011-11-02T23:53:00.001-05:00

In 2010 and 2011, the Texas Rangers Major League Baseball Club won the first two American League pennants of their otherwise mediocre existence. In both cases, they clinched the pennant with an active roster littered roughly equally with a mixture of Anglos and Latinos, except for one lonely African-American – 41-year old journeyman relief pitcher Darren Oliver. However, the Rangers do have an African-American manager who America is falling in love with – the always enthusiastic, hyperactive Ron Washington. While the playing roster itself has only one African-American contributor, the team leader is none other than the New Orleans bred African-American baseball lifer Washington, who still makes his home in the city’s infamous Ninth Ward.

This construction of a Major League Baseball (MLB) team is less surprising than it probably should be. The MLB Racial and Gender Report Card, issued annually by The University of Central Florida’s Institute for Diversity and Ethics in Sports, gave MLB an “A” for its racial hiring practices in 2011. This grade follows “A” grades in both 2010 and 2009. Major League Baseball is receiving credit for increasing its number of minority front office employees, managers, and coaches. The overall number of non-white players is also increasing, largely due to the percentage increase of Latino players in the game from 13% in 1990 to around 27% today. However, this progress comes at a time when the number of African-American players in the game is steadily decreasing, from 17% in 1990 to a paltry 8.5% in 2011.

Several factors are often cited to as the reasons for this decline. One is that the sport itself is inherently more expensive to play than other sports, because of both the cost of equipment and the cost of joining a league. A good bat can cost between $300 and $600, and on top of that, a player needs gloves, batting gloves, and uniforms. Furthermore, youth baseball (pre-high school) has become all about traveling teams, which cost a significant amount in both fees and traveling expenses. Finally, at the collegiate level, NCAA Division I schools only award 11.7 baseball scholarships a year, reduced from 20 in 1981. These costs push young African-Americans towards sports such as basketball and football, which can usually be participated in cheaply by comparison. This disparity in the costs of playing the respective sports has contributed to the National Basketball Association (NBA) and the National Football League (NFL) being made up of roughly 80% and 70% African-American athletes, respectively, while MLB lags far behind.

Another factor causing the decline of African-American baseball players is the way the game markets itself. Curtis Granderson, an All-Star center fielder with the New York Yankees who is also black, says when he played with Detroit that the team showed white players on all of their billboards around town, even though their roster had several black stars such as Granderson, Gary Sheffield and Jacque Jones. Other All-star caliber African-American players such as Ryan Howard and Carl Crawford cannot seem to break into the house-hold name category. Meanwhile, Barry Bonds, who is arguably the biggest African-American baseball star of his generation, is mostly vilified rather than celebrated as a result of his suspected steroid use, and right or wrong baseball has chosen to mostly disassociate itself with Bonds since his retirement from the game. Young black athletes need star players that are both adequately marketed and look like them in order to retain their interest in the game, and there just is not enough of those players in today’s game.

A factor that perhaps is not discussed enough is the evolution of the economics of the game. A black athlete who grows up in America cannot enter into the MLB draft until he’s 18, and a player picked in the first round (the only round where a player has a better chance than not to actually play an MLB game at some point) will get an average signing bonus of over $2 million. Meanwhile, most Latin American players are signed at age 16 by a major league team for a six-figure contract, and only recently did elite-level Latin players begin receiving seven-figure deals. As a result of both the age restriction and higher signing bonuses in America, teams sign three to four Latin American players for every young African-American athlete. It is simply a “very pragmatic business [decision]” according to Jimmie Lee Solomon, the MLB executive vice president for baseball operations.

This brings us back to the Rangers, who were well-known to be in dire financial straits for the years leading up to their first pennant in 2010. While the Latin American players on Texas’ current roster are mainly the product of shrewd trades, their commitment to signing and developing young Latin players is shown in the makeup of the team’s prospects: in both 2010 and 2011, 50% of the Rangers’ top 10 prospects were Latin born players. 50% were white. 0% was African-American. The Rangers are now generally considered to be among the smartest teams in baseball, and one reason is their harvesting of cheap talent in Latin America while passing over young black players who cost more and are subject to more stringent labor restrictions. As long as this model is a winning model, one can expect it to be mirrored by other organizations, and the number of African-Americans in the game may even further decline as a result.

Joel Eckhardt

Net Neutrality and the Amazon Fire

2011-10-31T18:29:00.000-05:00

It could be said that the nature of technological development and the nature of government regulation are diametrically opposed. One is constantly evolving and enthusiastically pursued at an unprecedented rate; the other a system of compromises begrudgingly instituted after months of fettering debate. It’s unsurprising, then, that the speed of legislation pales in comparison to the speed at which tech companies are able to develop new, better and different products. In recent years, attempts made by the government to protect the media consumption and expression rights of its citizens have often been thwarted by Internet service providers that are incredibly motivated to direct the flow of online traffic to suit their interests.

In fact, the current batch of FCC rules regarding net neutrality, instituted just last year, are already being sidestepped by new technologies. Amazon’s newest toy, the “Fire” tablet (an offshoot from their “Kindle” line of e-readers), has become the target of criticism regarding its browser’s processing system. The Kindle uses a new browser technology dubbed “Silk,” which allows for faster page load times on the tablet computer. Although this new browser technology would usually be seen as an improvement, complaints have surfaced about the browser’s potential to serve as a gatekeeper for certain web sites.

In 2010 the FCC banned ISPs from employing this very practice. Unfortunately, with the way the FCC has defined the term “ISP,” Amazon may be able to escape any enforcement of its rule by arguing that they are not technically an ISP. Until the FCC can modify its definition of ISP to include mobile devices like the Fire, manufacturers of these products will be able to escape regulation that protects the freedom of expression and consumption its users are entitled to via net neutrality rules.

What’s more, because the Fire is designed around the oft-touted cloud technology, Fire users face a risk that the new device may violate their privacy rights. This is because the cloud system of computing stores user data in off-device locations, which can then be farmed for consumer data at any time. Concerns have been raised that this technology would allow the corporation to collect web-browsing data on any of its users.

In a world where the web has replaced television as the most popular news delivery source, it is clear that we need to protect our citizens’ rights to free consumption and expression on the Internet. It follows, then, that our government must adapt its practices to account for the unprecedented pace at which technologies are developing and altering the landscape of media consumption in this country.

Ben Cukerbaum

Horizontalism and the Occupy Movement

2011-10-25T21:18:00.000-05:00

As the Occupy movement stretches across the nation, the United States is experiencing yet another episode of protest sparked by the ongoing economic recession and its effect on the widening wealth gap between the nation’s economic classes. In a decentralized outpouring of frustration, individuals are assembling to make their voices heard – although the voices lack a unified ring.
At this point, the movement’s concrete goals seem unclear. While some localities have developed specific calls for action (e.g. Chicago, which issued a list of twelve demands on Sunday, October 16), the movement still lacks an overarching mission statement apart from the vision of decreasing wealth disparity. Various scholars point to the movement’s potential power from this disunity – one that is giving “time for activists to find each other, for them to identify common grievances and goals, even to identify their political opponents and how to attack the problem” (per Michelle Nickerson, Assistant professor of history at Loyola University).
As we examine the movement in light of this disunity, its efficacy may hinge upon the strength of its organizational strategy and process. While Obama’s 2008 campaign and the Tea Party’s rise are recent examples of successful public assembly to achieve political ends, the Occupy movement may not fit within this policitized framework.

Organizer, lawyer, and postdoctoral fellow at the Committee on Globalization and Social change Marina Sitrin argues that the movement fits better into “horizontal” framework – one that recognizes the need for individuals to come together and make change outside of the government. She cites Argentina after the 2001 economic recession as a protypical example of such a movement, gaining strength from its “from the people, by the people” approach outside of a traditional political context. She hopes that this is the beginning of a societal shift, in which people begin to form participatory units outside of the traditional political context to create change within their own communities.

Does this movement have the power to give back Americans the strength of their social capital, which Robert Putnam’s Bowling Alone argues has disappeared as we become more socially disconnected in the internet age? Whether widespread and decentralized organization can spring from the Occupy movement is yet to be seen. However, in examining the movement’s efficacy, we must look less to its political accomplishments and focus on the ways it expands our strength in achieving ends in workplaces, schools, and towns across the United States.

If Canada isn’t enough for Occupy, then what is?

2011-10-21T13:09:00.000-05:00

In late September 2008, after the federal government took over Fannie and Freddie Mac and the bankruptcy of Lehman Brothers, my development studies professor looked at the class and said something along the lines of “well class, modern capitalism as we know is going to change and I’m not sure what will happen.” In the years following 2008 it became clear the changes to modern capitalism would not be nearly as cataclysmic as my professor speculated—the Second Great Depression never materialized. In recent weeks however a new questions has been brought to the forefront—what should the modern capitalism look like.

The Occupy Protests have spread from Wall Street to over 70 major cities in the US. There is no unifying manifesto of the protests across America. Instead protestors have vented their frustration about the status quo of the economy. An often repeated fact is that almost forty percent of the wealth in America is held by the top one percent of Americans. The protestors identify themselves as the other ninety-nine percent of Americans.

An interesting off-shot has been the spread of the protests across the forty-ninth parallel to Canada. Fifteen Canadian cities have seen Occupy Protests as of October 14, 2011. The protests have found traction in Canada despite the presence of a more progressive tax system, less income inequality than the U.S., and the supervision and regulation of financial institutions, which are the very things American Occupy Protests implicitly advocate. But, in the view of the Canadian protestors, the Canadian system is still not enough to be what the modern economy should be.

The prevalence of the protests across the forty-ninth parallel raises an important question about what the ideal end result for the Occupy Protests in America will be. If the Canadian progressive tax system, and supervision of the financial sector is not enough to satisfy the Occupy Protest, then what will be? The protestors have been quick to vent their frustration with the status quo, but without a concrete vision of what the economy should look like, the Occupy Protest will have difficulty changing the status quo. Hopefully, if the protests continue, a clear message will be articulated other than just we don’t like the way it is.

On the Scene at Occupy Austin

2011-10-17T14:56:00.000-05:00

The other day I had occasion to be at Austin City Hall. It was about 4:30 in the afternoon and I observed that the Occupy Austin group in the plaza was small and quiet, but the atmosphere was festive. There were colorful signs and banners hung on the walls and steps, and chalked messages on the concrete of the plaza. I was shocked, I admit, that the crowd wasn’t larger.

I walked back through the plaza about 7:30. The atmosphere was a bit different—still festive, but more active. There were people standing by the curb holding signs, encouraging passing drivers to honk their support (which they did, regularly). There was a small, subdued drum circle, and more movement, more milling around. The crowd had probably doubled in size. “Ah,” I thought, “They’ve come from work.” An astute observation on my part, if I do say so myself, because what I’ve read, seen, or heard about the Occupy Wall Street movement is minimal (a first year law school student doesn’t have much time to keep up with current events).

So I began to wonder what was going on. Who are these people, exactly, and what do they want? Who’s in charge? Curious, I started exploring the Occupy Austin website http://occupyaustin.org, where I read their General Assembly Minutes from October 2^nd. Because it’s in writing, I didn’t get the full benefit of a live GA, where the group uses “the people’s mike” and hand signals to discuss and decide issues.

If you’re unfamiliar with this system, there’s a great 4-minute primer here: http://www.npr.org/blogs/money/2011/10/05/141048592/occupy-wall-street-where-everybody-has-a-say-in-everything. In short, everyone repeats what is being said by everyone else so that everyone can hear what everyone is saying. And yes, when put into practice, it feels just that circular.

I’m sympathetic to the reasons behind this specific approach (the police won’t allow bullhorns, with which I’m also sympathetic), but it takes a really, really long time to get anywhere. The GA is where facilitators lead the group through decision-making by consensus using hand signals. You may have heard about the GA in Occupy Atlanta where it took 10 minutes to decide to NOT hear respected Civil Rights leader John Lewis speak. How they spend their time is at their discretion, but it took TEN minutes. Some members of the Occupy movement want to actually overthrow the government in its present form. Groovy. It’s gonna take a hellacious long time to make it happen at this rate.

But, back to the Occupy Austin GA. As I continued reading the transcript of the October 2^nd GA, it became obvious that the movement consists of many different demographics, which I find hopeful—calling themselves the 99% and then actually striving for that as a reality. Sure, there will be a good percentage of people out there who think the Occupy movement is ludicrous, but calling it a movement of the 93.7% doesn’t sound as good as 99%. Anyway, I was right—many of the participants hold full-time, 40-hour a week jobs (“Wow, you mean they aren’t all drop-outs and slackers who could never hold a job and now that the economy soured and even Starbucks won’t hire them and they don’t know what else to do in the afternoons after they’ve smoked the last of their stash, they decided to just hang out at the plaza and try to make life difficult for those of us who do work and pay taxes like true, God-fearing Americans?”—and yes, I’ve seen all of this and more aimed at the participants in online comments to news articles and blogs).

There’s the “underage” set, teenagers, who have stricter guidelines from the city about when they can assemble and under what conditions, but that’s okay; they’ll have plenty of time to protest at will when they get older. There are folks there with little ones (the community specifically addresses child care issues so adults can march), members of the LGBT community, union and labor, and even slow-foodies who are resisting corporate control by growing their own food. There’s a blog entry on Occupy Austin’s website written in Spanish. Elsewhere in the blogosphere I read of the middle-aged, middle-class white dude who said he was economically “well off” standing next to a leather clad young man who was out of work; they were getting along, communicating and wanting the same fundamental changes to come out of the movement.

Several exchanges during the October 2^nd GA had to do with the police. I don’t remember seeing a single officer when I walked through, but I imagine there must have been a few. The facilitators stressed that the group had been given the go-ahead from the city government to assemble in the plaza, with one caveat—no sleeping in the plaza. The group decided to occupy in shifts, so no problem there. Otherwise, the facilitators reminded everyone, the police are public servants looking out for the safety of those in the plaza. Someone in the crowd (and hence the crowd in toto) suggested that everyone should be on the look out for any violence so that it could be dealt with immediately. Someone else warned, a bit more ominously, “There could be provocateurs, government entities, so be aware and put a stop to it.”

It appears that the police and the Occupy participants had been on peaceful terms until this Thursday when four people were arrested for not leaving the plaza so it could be pressure-washed. Now, I have a problem with this last bit of the story for two reasons: one, some of the participants were using the corner of the plaza as their own private urinal, in which case, the city has every right to clean the place; but two, the city claimed that it “needed” to clean the chalk off the concrete—say what? Occupy Austin needs to be self-policing of its members or it will continue to have trouble with the city, and deservedly so. The city has a duty to the citizens of the city—100% of us. But…really? What harm is chalk going to do? It can wait until Dec 7^th, the self-imposed end to the occupation.

Kristine Baumstark

Are you tipping your waitress or paying the cook?

2011-09-28T22:57:00.000-05:00

Waiting tables is not only one of the most common occupations for college kids, but also for single mothers. It’s a humble job, that is thought to build character and personality. But, it’s not always the best paying: tips are notoriously erratic. Indeed, that’s why Congress amended the Fair Labor Standards Act (FLSA) in 1966 by setting a minimum wage for tipped employees at 50% of the national minimum wage, phasing it up to 60% in 1980. But, in the 90’s, Congress reversed that thirty-year trend and froze the minimum wage for tipped employees at $2.13 per hour. It has now been the same for twenty years.

Meanwhile the economic crisis has reduced the giving nature of tipping patrons. This means that the average pay for a waiter/waitress is declining on both ends. On the one hand, in the states that don’t have requirements beyond the FLSA, the pay an average waiter gets from his employer has decreased to half of what it was in 1991 (adjusted for inflation). On the other hand, because patrons are hurting from the economic crunch, the tips an average waiter gets have also decreased. It’s no wonder the average waiter/waitress is twice as likely to go with out health insurance, when compared to the national average, and three times as likely to live in a family below the poverty level. Many of these individuals don’t simply live paycheck-to-paycheck; they live day-to-day, table-to-table.

In addition to the minimum wage freeze and the tipping recession, the FLSA is also unclear regarding who qualifies as a “tipped employee.” For an employer to pay their employees the lower minimum wage, the employee has to receive tips and be allowed to keep those tips in their entirety. But, the FLSA does allow employers to force employees to share their tips in a tip pool. The problem is that while the FLSA does require that the tip-pool employees be “customarily and regularly” tipped, the Code of Federal Regulations (CFR) is explicit that an employee need not receive tips directly to be included in the pool. To illustrate, a DOL opinion letter says “[i]t is customary for waiters/waitresses to receive gratuities and share them with the busboys/busgirls who assist in serving the patrons.”

This example may seem simple enough, but the evident lack of clarity in the FLSA becomes obvious with other job types. For example, if a cook is included in the tip pool by an employer, does the fact that she now receives tips make her “customarily and regularly” tipped? Wouldn’t this eviscerate any and all statutory limitations that the words “customarily and regularly” impose? Indeed, such an interpretation would ignore clear legislative intent, as demonstrated by a 1974 Senate Report:

Nor is the requirement that the tipped employee retain such employee’s own tips intended to discourage the practice of pooling, splitting, or sharing tips with employees who customarily and regularly receive tips-e.g., waiters, bellhops, waitresses, countermen, busboys, service bartenders, etc . On the other hand, the employer will lose the benefit of this exception if tipped employees are required to share their tips with employees who do not customarily and regularly receive tips-e.g., janitors dishwashers, chefs, laundry room attendants, etc.

Judge Xavier Rodriguez, sitting in San Antonio, Texas, has recently tackled this issue head-on. Looking at the report above, Judge Rodriguez held that “the Senate Report’s nomenclature is simply a list of general examples meant to illustrate the categorical distinction being made” (Barrera v. MTC, Inc.). That distinction is between employees who visibly or directly provide a service to customers, and employees who are mostly out of sight performing preparatory tasks. Again this means the nomenclature of the Senate Report is not dispositive. Indeed, Judge Rodriguez gave the example of a sushi chef to point out that while the Senate Report puts “chefs” generally in the second category, industry custom means that it’s a fact question whether sushi chefs are considered to be part of the first category.

The test used by Judge Rodriguez had two parts. First, to be considered “customarily and regularly” tipped, an employee must directly interact with or visibly perform service for customers. Second, that direct interaction or visible service must be “sufficient to incentivize customers to ‘customarily and regularly’ tip ‘in recognition’ of” the service being provided.” While this test makes the best out of a legislative mess, it does not solve the bigger problem. The FLSA is unclear. This lack of clarity allows unethical employers to take advantage of statutory ambiguity. It also presents a headache of potential liability for law-abiding employers.

In sum, the FLSA needs to be amended to protect two groups that define the American dream. The first, a group largely made up of college kids and single mothers, who have seen their pay diminish on multiple fronts. The second, a group largely made up of small businesses and first-time entrepreneurs, who lack clear guidance on how to follow the law and avoid being sued.

Jacob Alford

TEXAS JOURNAL ON CIVIL LIBERTIES AND CIVIL RIGHTS Fall Write-On Competition

2011-08-29T20:36:00.004-05:00

The Texas Journal on Civil Liberties and Civil Rights invites UT Law students to participate in its fall 2011 write-on competition. We are seeking 1Ls, 2Ls, and 3Ls with outstanding writing and editing skills and a demonstrated interest in civil liberties and civil rights.

The journal publishes articles that examine the intersection of law, politics, and society within the area of civil liberties and civil rights. Articles are written by judges, lawyers, professors, and students. The Individual Rights and Responsibilities Section of the State Bar of Texas has an ongoing relationship with the journal. Originally founded in 1992, the journal is now one of the nation’s most cited specialty law journals on human rights by courts.

Members of the journal often strengthen their legal research and writing skills. In addition, the journal provides unique opportunities for students interested in learning more about practicing civil liberties and civil rights law. This past spring, we hosted a symposium entitled Civil Rights on the Border, featuring panel discussions between immigration specialists, litigators, and constitutional scholars from across the country. In May 2011, Justice John Paul Stevens discussed and echoed an article about statutory reforms to Section 1983 that we published in our Fall 2010 issue. This year, we hope to continue the same conversation in print and in dialogue.

If you are interested in applying for a position on the journal, please contact Christine Nishimura, cnishimura@utexas.edu or pick up an application at the circulation desk in the atrium. The application deadline is Friday, September 2 at 5:00 PM.

Discovering the Imprisoned Innocent: The Effects of Skinner and Connick on the Use of Section 1983 to Gain Access to Exculpatory Evidence

2011-04-01T17:46:00.000-05:00

By Ralph Mayrell

The imprisoned innocent received mixed messages from the Supreme Court this month in decisions concerning his access to exculpatory evidence. While offering prisoners a new avenue to access DNA evidence, the Court limited the ability of the wrongly convicted to sue the district attorney. Providing an alternative to habeas corpus, the Court in Skinner held that a prisoner could state a claim for DNA testing that might prove his innocence under Section 1983. However, the Court in Connick held that an innocent former prisoner could not sue a district attorney’s office for damages under Section 1983 on the basis of a single failure to reveal exculpatory evidence.

The Court in Skinner held that a prisoner could state a claim under Section 1983 requesting access to DNA evidence. Skinner is a Texas prisoner convicted of multiple murders and sentenced to death. He has maintained his innocence and tried to use Texas’s Article 64 to gain access to potentially exculpatory DNA evidence. The Texas Court of Criminal Appeals denied his Article 64 request twice, holding first that he failed to demonstrate the evidence would have led to his acquittal, and later holding that he had some responsibility for the failure of the evidence to appear in his trial.

In response, Skinner filed a Section 1983 claim in a Texas federal district court against the district attorney who held the evidence, arguing that Article 64 as construed by the Court of Criminal Appeals harmed his access to due process. Prior law suggested that a defendant could not use Section 1983 to gain immediate release from prison or imply that a conviction was incorrect. The Court held that this prior law did not preclude the use of Section 1983 to gain access to evidence that may or may not exculpate a convicted defendant. It rejected the argument that habeas corpus is the exclusive means for a prisoner to access exculpatory DNA evidence.

In contrast to Skinner, the Court in Connick limited the options available to acquitted ex-prisoners to gain relief under Section 1983 when they discover that a district attorney failed to reveal exculpatory evidence. The defendant had been convicted of an attempted armed robbery and later had not testified in his own defense at a murder trial as a result of his prior conviction. After years of unsuccessful appeals, his private investigator discovered that the district attorney was aware of evidence proving that he had not attempted the robbery. As a result, the Louisiana Court of Appeals reversed his armed robbery and murder convictions and sent him to retrial for the murder conviction, where he testified and was acquitted.

In light of the failure of the district attorney to reveal exculpatory evidence—a Brady violation—Thompson filed a Section 1983 damages claim against the district attorney’s office. The Court held against Thompson because the office was liable only for a failure to train its attorneys as evinced by repeated Brady violations, and Thompson had not displayed multiple violations. A similar argument was also made in respect to his claims against Connick, the district attorney. The absence of a showing of repeated Brady violations indicated to the Court that the plaintiff had not shown a deliberate failure to train.

These decisions leave the imprisoned innocent with more tools to gain access to exculpatory evidence, such as crime scene DNA evidence, but limit their ability to punish prosecutors who fail to obey their constitutional duty to reveal exculpatory evidence. These opinions together effectively increase the burden upon the imprisoned innocent to engage in self-help with respect to proving their innocence, while decreasing the enforceable duty of prosecutors to ensure they do not prosecute the innocent. Such a shift, even combined with the broader reading of Section 1983 made available under Skinner, places poorer, less educated, and more vulnerable populations at even greater risk of remaining among the imprisoned innocent.

The IDEA and a Child's Right to Free Public Education

2011-04-01T17:30:00.001-05:00

By Jerry Maddox

Imagine that you are the parent of a student with medical and developmental disabilities. Your child requires augmentative communication technology and tube feeding services at school. You have just learned that while at school, your child was repeatedly placed in a windowless closet while she was restrained in a stroller. Furthermore, your child was unsupervised the entire time. On one such occasion, your child fell and fractured her skull, which worsened her existing seizure disorder and caused her to be homeschooled for the rest of the school year. If this happened to your child, would you believe that her rights to obtain a free, appropriate public education had been violated? Would you believe that your child was eligible to receive damages for the physical harm and mental anguish caused by the seclusion technique?

This scenario happened to Ms. Padilla, whose daughter suffered serious harm at the hand of her public school teachers. In Padilla v. Sch. Dist. No. 1 of Denver, the Tenth Circuit held that the administrative remedies under the Individuals with Disabilities Education Act (IDEA) precluded the availability of any section 1983 remedies and denied Ms. Padilla’s damages claims.

The Padilla holding reflects the prevalent attitude in the current Circuit Court split about whether section 1983 should be available for violations of IDEA. The Second, Sixth, and Seventh Circuits have all recently held that individuals may sue under section 1983 to enforce IDEA. The First, Third, Fourth, Ninth, Tenth, and D.C. Circuits currently maintain that individuals may not sue under section 1983 to enforce IDEA. The Fifth, Eighth, and Eleventh Circuits have not yet ruled on this issue. Ms. Padilla’s daughter may have received section 1983 damages if she sued in the Second, Sixth, or Seventh Circuits. As it stands today, a student’s jurisdiction determines whether section 1983 damages will be available for IDEA violations.

There are no cases pending in the Supreme Court’s docket regarding IDEA violations. If the Supreme Court were to review an IDEA violation case, it would likely rely on its analyses in Barnstable School Committee and Rancho Palos Verdes, and find that IDEA’s express, private remedial scheme is meant to preclude section 1983 enforcement. Before such a case gets to the Supreme Court, Congress should clarify its language so that the courts can accurately apply the IDEA statute. The IDEA statute allows a judge in a civil action to award the type of relief that the court determines is appropriate. This broad statement leaves open the possibility of any relief that the judge deems applicable to the case at hand. Such a flexible standard should be read to fit the current legislative landscape of section 1415(l). Congress must clarify section 1415(l) of the IDEA statute by explicitly inserting “section 1983” as a listed law. This will ensure that all students have an equal opportunity to enforce their right to a free, appropriate, public education.

The Plight of America’s Migrant Farmworkers

2011-04-01T17:12:00.000-05:00

By Martha Buttry

Of the total farmworker population in the United States, forty-two percent are migrant and seasonal farmworkers, while many more are former migrants. Migrant farmworkers pick lettuce in Colorado, apples in Washington, tobacco in North Carolina, and grapes in California, just to name a few, although the largest numbers of migrant farmworkers reside in California and Texas. While the vast majority of migrant farmworkers hail from Mexico, others come from countries like Perú and Guatemala. Some migrant farmworkers have their green card, others have a restricted work visa, while others have no documents and live in constant fear of deportation. But most of these workers—regardless of individual traits, legal statuses, locations, nationality, or age—are deprived of many rights on a daily basis.

Farming is one of the most dangerous industries in the country. The workers suffer heat stroke in the hot sun, are injured by the machines used during the harvest, and contract deadly diseases caused by their exposure to pesticides used in the field. A worker I once met in Colorado had lost his eye to the machete used by his companion to cut lettuce. Another worker, sorting potatoes in a warehouse, suffered carbon monoxide poisoning from the forklifts used in the unventilated facilities of his workplace. While the regulatory regimes of OSHA and FIFRA protect against workplace injuries and pesticides poisoning in a limited sense, the agencies that enforce these regimes are inadequately equipped to protect the entire farmworker population. Furthermore, workers often fear retaliation from their employers and fail to report violations of the OSHA and FIFRA standards.

Farmworkers also suffer at the hands of the immigration system. Undocumented workers are at the mercy of the system: they can be deported at a minute’s notice. Documented workers are not much better off. H-2B workers are in constant fear of complaining of their employers’ misconduct; for if they complain the employer can choose not to invite them back for the following harvest season. Even green card holders, or Legal Permanent Residents, can face the wrath of the immigration system. They, too, have limited rights and can find themselves deported and barred from ever re-entering the United States. This can occur if they commit a variety of “aggravated felonies,” which may include offenses that are neither aggravated nor felonies. Even still, these immigrants are thrown into a system where they have no right to an attorney, where government-hired and often biased immigration judges are granted incredible deference, and where much of the relief to deportation is discretionary.

Several years ago, I worked for a statewide program that provided legal services to migrant farmworkers in Colorado. The lechugeros, or lettuce workers, I met there said they were treated like animals, like ghosts. They said that they felt like “voluntary slaves,” for they had few rights and few options. One worker told me, “Nadie sabe quien somos.” Nobody knows who we are. “Y lose que saben,” added another, “no les importa.” And those who know, don’t care.

César Chavez once said, “When the man who feeds the world by toiling in the fields is himself deprived of the basic rights of feeding, sheltering and caring for his own family, the whole community of man is sick.”

To cure this sickness there must be change. So, it is about time we pay attention.

Should We Place Checks and Balances on the Supreme Court?

2011-03-29T14:55:00.007-05:00

By Ronald Trowbridge

I published a paper recently asserting that the constitutionality of the individual mandate of the Affordable Health Care Act would be a close call, though I opined at the conclusion of the impartial analysis that the mandate would likely be ruled unconstitutional by a 5-to-4 Supreme Court vote. I later talked with Texas’s Attorney General Greg Abbott, saying, “It all depends on how swing voter Anthony Kennedy votes”—to which Abbott responded, “If we get Kennedy, we’ve got it made.”

Then it struck me poignantly, how in Heaven’s name did this country ever get in such a predicament that something so enormous, so all-controlling, so inordinately expensive could be finally determined by one person—in a country of over 300 million people?

The U. S. Supreme Court is virtually imperial. While checks and balances limit the power of the Executive and Legislative branches, nothing limits the power of the Supreme Court.

Former federal appellate judge Robert Bork was so troubled by this unchecked, even political, power that he proposed a constitutional amendment to make “any federal or state court decision subject to being overruled by a majority of votes of each House of Congress.”

The Supreme Court is more a political body than a body of disinterested arbiters. Republican presidents appoint conservatives to the bench; Democratic presidents, liberals. These appointees may be subtle, even inchoate, about their political dispositions, but they nonetheless render philosophical—that is, political—judgments.

The Wall Street Journal recently observed that the Westboro free-speech case “managed the rare feat of uniting the Court’s liberal and conservative wings.” The justices are political—the elephant in the room we choose not to see.

E. B. White put it aptly: “I have never seen a piece of writing, political or non political, that doesn’t have a slant. It slants the way a writer leans, and no man is born perpendicular.” Not even judges.

Judges will, of course, respond that they do not permit their personal views to interfere with their impartial rulings. Not fully true. I worked for or with Chief Justice Warren Burger for nine years. He told me that he did not let his personal views influence his court rulings. I knew otherwise. In Mechlenburg he voted for cross-district busing of school children. He told me that, apart from any other group, African-Americans deserved “special treatment” because they “were brought to this country against their will.”

Chief Justice William Rehnquist let the will of the majority govern his vote. In his first vote on Miranda, he rejected Miranda rights. In his second vote much later, he supported Miranda rights, arguing that they were now “part of our culture.”

This unchecked court power began with John Marshall, in Marbury v. Madison, where the Supreme Court for the first time ruled an act of Congress unconstitutional. In the Supreme Court building today is an enormous statue of Marshall. Of course. In the Chief Justice’s dining room are portraits of Marbury and Madison. Of course.

Today, five federal District judges have ruled on the Affordable Health Care Act. The three judges appointed by Democratic presidents have ruled the act constitutional. The two judges appointed by Republican presidents have ruled it unconstitutional. Of course. As Roy Cohn is alleged to have said, “Don’t tell me what the laws are; tell me who the judges are.”

Randy Barnett, a professor of constitutional law at Georgetown University, has recommended a “Federalism Amendment”—which lays out the process of implementing checks and balances against the unlimited power of Congress and the courts.

The Texas legislature should at least examine Barnett’s proposal, in a time of renewed emphasis on states’ rights.

No More Deaths

2011-02-23T15:27:00.000-06:00

Kimberly Ashworth

The issues occurring along the border between the United States and Mexico have been the center of media attention for quite some time. The migrants who choose to make the treacherous journey from rural Mexico to the United States face fifteen law enforcement agencies, drug smugglers, bandits, ranchers and gun-toting American militia groups. Those that attempt to provide the migrants with medical aid and assistance face criminal charges and retaliation. Despite these risks, there are those who continue to provide help to the migrants.

One of the most inspiring stories comes from Tucson, Arizona, where John Fife and Gene Lefebvre continue to work tirelessly to assist migrants. A Presbyterian minister and a co-founder of the Sanctuary Movement, Fife began his mission to help migrants crossing the border in the 1980s. This choice led to criminal charges and five years of probation. Undeterred, he partnered with Lefebvre in 2000 to found Humane Borders in response to the growing number of migrant deaths along the border. Humane Borders built 55-gallon water drums along the paths throughout the desert—or “death trails,” as Fife and Lefebvre call them. In 2002 Fife and Lefebvre founded Samaritans, a faith-based volunteer group that patrols the desert, providing medical aid, water, and food to migrants crossing the border in the summer heat. And in 2004 the two founded their current organization, No More Deaths (No Mas Muertes). No More Deaths is a faith-based humanitarian group whose volunteers walk the death trails and provide water and food to those crossing the border. No More Deaths operates under the slogan “humanitarian aid is never a crime.” Fife and Lefebvre believe their job is to save lives, not to protest or worry about political consequences.

Their thirty-year struggle to help migrants—whose only crime is seeking a better life and way to feed their children—is inspiring. Anti-immigration groups preach about the inevitable downfall of America if migrants are allowed to continue crossing the border into America. But their hate speech only leads to violence and tragedy. Recently, members of an anti-immigration group killed a nine-year-old girl and her father and seriously injured her mother. No More Deaths plays an interesting role in the immigration reform movement. Rather than protest or attempt to change the law, it seeks to provide aid and prevent unnecessary deaths along the border. It is a humanitarian group that can hopefully serve as an inspiration to those against immigration. No More Deaths emphasizes the message that we are all humans and that we are commanded by God, conscience, or another higher power to treat each person as we would want to be treated. It is not about which side is right, but about helping our fellow man. It’s time to forget the anger and violence directed towards those left with no choice but to come to America. It’s is time to remember that we are all human beings no matter where we may be from.

First Amendment Showdown: The Right to Free Speech vs. The Right to Privacy

2011-02-22T15:50:00.000-06:00

By Meagan Armstrong

How will the U.S. Supreme Court rule in Snyder v. Phelps, the controversial funeral protest case? This case pits two First Amendment rights against each other: the right to free speech and the right to privacy. The Court is expected to render its opinion sometime in June 2011. Several onlookers have opined that the Court will decide that the right to privacy does not trump the right to free speech in the context of a funeral. Kevin Goldberg, a First Amendment attorney at Fletcher, Heald & Hildreth, predicts how each Justice will vote:

I’ve got it at 5-4, maybe 6-3, in favor of Phelps.

Here’s how I break it down.

Clearly for Snyder:

There’s no question in my mind that Justices Alito and Roberts will be voting for Snyder.

Alito is the weakest on the current Court when it comes to the First Amendment. He was the only Justice who voted to uphold a clearly overbroad law in United States v. Stevens; his concern appeared to center on concerns of morality and proper behavior, rather than First Amendment interests.

Despite some indications that Chief Justice Roberts may not be that bad on First Amendment cases, in the Snyder argument he seemed convinced that the tort of IIED could exist even where a matter of public concern exists. One question he asked really stood out. During Phelps’s argument, Roberts asked:

[I]f you recognize that there can be a tort of emotional distress in [in some cases], isn’t that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?

This indicates to me that the Chief Justice is not willing to foreclose as a matter of law the possibility that an IIED claim can permissibly be pursued when a private figure plaintiff is suing based on speech on a matter of public concern.

Likely for Snyder

Justice Kennedy is also one who is generally favorable to the First Amendment, but he seemed particularly concerned that allowing groups like the Phelpses and their church to escape liability would open the door to everything short of outright stalking and harassment. He described the Phelps position as advocating the ability to follow any citizen around at any point, and noted that “torts and crimes are committed with words all the time.” Taking these observations together, I feel that he’s wary of giving unfettered rights to inflict insult in all situations.

Clearly for Phelps:

Justices Ginsburg, Kagan and Sotomayor seem firmly in the Phelps camp.

Ginsburg was “up in the grill” of Snyder’s attorney, Sean Summers, from the get-go (the term is in quotes because, oddly enough, Margie Phelps used that term three times in her oral argument to describe the difference between, on the one hand, protected speech and, on the other, unprotected IIED or “fighting words”). Ginsburg especially seemed unconvinced that protesters who complied with every time, place and manner restriction put upon their speech could later be held liable.

Justice Kagan highlighted the portion of Hustler quoted above. I think she is concerned about subjectivity and I think she’s not willing to impose liability in this case.

Justice Sotomayor also seemed skeptical about the public figure/private figure distinction. She noted at one point:

[U]nder what theory of the First Amendment would we do that? What [Supreme Court decision] would stand for . . . the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

Likely for Phelps

Justice Breyer is a little tougher. Despite being tagged as a “liberal” member of the Court, he isn’t rock solid on First Amendment protections. But he’s still pretty good. For me, the key moment occurred when he seemed to be seeking a way to protect this speech by allowing some liability but not where matters of public concern are involved. (You can find this moment at pages 45-46 of the transcript.)

But Justice Scalia was the real revelation to me. As usual, he was an active questioner, launching into both attorneys. But everything crystallized – and I think the case might have tipped to Phelps – in this exchange during Summers’s rebuttal:

MR. SUMMERS: The court – the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not. There was a comment earlier that all the signs were presented. Well, all the signs were presented by the Respondents, not by Mr. Snyder. So we -

JUSTICE SCALIA: I guess that that kind of a call is always necessary under – under the tort that you’re – that you’re relying upon. The conduct has to be outrageous, right?

MR. SUMMERS: Correct.

JUSTICE SCALIA: That always requires that kind of a call, unless the tort is unconstitutional, as applied to all – all harm inflicted by words.

I’m sensing that Justice Scalia is concerned that Snyder’s position requires consideration of the message’s content in determining whether there is outrageousness. He’s always been concerned with regulating speech based on a particular viewpoint, yet that’s what Mr. Summers seems to be advocating. There’s no way that Scalia will agree with this. If I’m right, he definitely provides what could be the crucial vote for Phelps.

Unknown

Justice Thomas. The guy didn’t ask a single question (again). Sometimes he loves the First Amendment, but sometimes he comes way out of left field, especially in cases where he can view himself as the protector of a “weak” constituency. (Check out his concurring opinion in the "Bong Hits for Jesus" student speech case in which he went so far as to advocate a return to the 19th Century, when schools basically governed every aspect of their students’ lives.) His paternal streak might say that the government should step in where funerals are involved.

It’s my uncertainty about Thomas’s vote that keeps me from a conclusive prediction as to the vote split – 5-4 or 6-3 – but, if my other big guess (that would be Justice Scalia) pans out, the Swami sees a victory for Phelps and, more particularly, the First Amendment.

Fifth Circuit to Reexamine the Desired Balance Between Security and Privacy in the Context of Incarceration

2011-02-22T09:11:00.000-06:00

By Alese Bagdol

The Fifth Circuit may soon reverse its position—in the recently argued case of Jimenez v. Wood County—by finding blanket strip-searches of pretrial arrestees constitutional.

In Jimenez, the plaintiff was arrested for hindering her husband’s apprehension by hiding him in the trunk of her car. (In Texas, “hindering apprehension” is a Class A misdemeanor.) The plaintiff was then taken to Wood County Jail, where she was strip-searched in accordance with the facility’s policy to search all new detainees—regardless of whether they were under suspicion for weapon or contraband possession. The plaintiff sued Wood County under the Fourth Amendment and a jury awarded damages. Wood County appealed.

The Fourth Amendment protects against unreasonable search and seizure. So, Jimenez turns on whether this particular strip search was unreasonable. The guards who conduct the strip searches say that security concerns require them to search for weapons possibly smuggled into the facility. But a woman booked for committing a minor misdemeanor would probably lack the foresight to conceal a weapon on her person before her arrest. Is the security threat substantial enough to warrant this invasion of privacy?

The U.S. Supreme Court addressed a similar issue when, in 1979, it decided Bell v. Wolfish. In that case, however, the facility conducted hands-off body cavity strip searches after detainees had had contact visits with friends and family from the outside. The court reasoned that the need to uphold security interests outweighed any concern for an inmate’s right to privacy.

Like the Fifth Circuit in Stewart v. Lubbock, most Circuits have distinguished their seminal cases on the subject from Wolfish. Only when the Eleventh Circuit remarked that most other Circuits have wrongly interpreted Supreme Court precedent did the Fifth Circuit contemplate reversing its view.

Security interests run high in many contexts, especially incarceration. Still, how far ought a court to go to protect those interests? Will reading Wolfish more broadly lead to greater infringement of an inmate’s right to privacy? The judges on the Fifth Circuit ought to consider these questions before reversing their initial stance on striking the proper balance between maintaining adequate security standards and protecting the privacy rights of inmates in custody.

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

2010-10-19T16:46:00.014-05:00

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.

Symposium: LIVE BLOGGING

2010-03-29T11:21:00.004-05:00

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.

Symposium 3: National Juvenile Justice Reform Initiatives

Symposium Panel 2: Dealing with Serious Juvenile Offenders in the Juvenile Justice System

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.

2010 Symposium MONDAY, March 29!

2010-03-23T10:36:00.006-05:00

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:
http://www.utexas.edu/law/about/parking.html
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
Foundation
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.

Unlawful Search and Seizure: Like Taking Candy From A Baby

2010-03-01T11:54:00.003-06:00

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!
~AnDrea

Secrets, Sex, and Controversy

2010-02-02T13:45:00.009-06:00

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

Update: Dallas Police Chief Kunkle

2009-11-13T09:53:00.006-06:00

Remember our good friend Dallas Police Chief Kunkle from the last post? Interestingly enough, he announced his retirement early this week. Here is his Retirement Letter to DPD.

~Andréa

Speak English or Get Ticketed

2009-11-09T11:41:00.002-06:00

Apparently, over the past 3 years Dallas police officers have issued 39 tickets for not speaking English. The fine - $204. After "discovering" that his officers had been issuing tickets for this non-existent charge, Dallas police Chief David Kunkle stated to the Dallas Morning News:

"I was surprised and stunned that that would happen, particularly in the city of Dallas....In my world, you would never tell someone not to speak Spanish."

Perhaps Chief Kunkle needs to come back to THIS world where HIS officers are doing just that. His city of Dallas is the same city that practically rioted when the pizza chain "Pizza Patron" started accepting pesos a few years back. This is the same Dallas whose DA's office was discovered to have a long-established practice of racially discriminating to get all-white capital case jurors. So I'm not sure that discriminating based on the language someone speaks is all that surprising (sorry!). Kunkle mentioned to the Dallas Morning News that he was worried this would damage the department's relationship with the Hispanic community. My response: (1) duh, (2) ship might have sailed on that one awhile ago.

So what will the outcome of all this be? Any outstanding tickets issued for not speaking English will be dismissed and those already paid will be reimbursed. The department is going to do an investigation, blah, blah, blah. In the meantime, if the writers for Reno 911 are short on material, this surely would make for a ridiculous show!

God Bless Texas
~Andréa

Is October Discrimination Month in the South?!

2009-10-26T11:13:00.007-05:00

Apparently we didn't get the memo here at the Texas Journal on Civil Liberties and Civil Rights (not surprisingly). Two of the most blatant cases of recent discrimination come out of Louisiana and New Mexico.

Exhibit 1. (Unsolicited) Life Lessons from Keith Bardwell:

In this interesting case out of Louisiana, Keith Bardwell, justice of the peace in Tangipahoa Parish, denied a marriage license to an interracial couple because he was concerned for the children that the couple might have. According to Bardwell, neither Black or White society accepts mixed children so he wanted to save the couple's potential children from being ostracized. (Gee, what a great guy.) He also explained to them that in his experience, interracial marriages don't last long. But wait, he's not being racist. Look what he told AP news:

"I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else."

It's nice to know that he doesn't have separate facilities in his home, really. You go Bardwell. MLK would be proud.

Luckily Louisiana Governor Bobby Jindal didn't buy it. He called for the state judiciary committee to review the incident and revoke Bardwell's license.

Exhibit 2. Anglicizing Your Hispanic Name

No it's not a facebook application or a Flavor Flav-esque nicknaming game. When Larry Whitten took over a failing hotel in Taos, New Mexico, he laid down some controversial new rules. Rule 1: don't speak Spanish in his presence (lest his workers talk about him behind his back). Rule 2: Change your name from Marcos to Mark. Rule 3: "there are too many Hispanics working at the hotel - I'm firing a bunch" (I paraphrase). Whitten, who has worked to place numerous hotels back on their feet, says he has always required his workers to Anglicize their names; it's less confusing for guests that way. However, residents in the Taos community embrace their Native American and Hispanic cultural background and find his actions extremely offensive. But Whitten claims he is not a racist:

"It has nothing to do with racism. I'm not doing it for any reason other than for the satisfaction of my guests, because people calling from all over America don't know the Spanish accents or the Spanish culture or Spanish anything." [From Yahoo News interview]

Clearly, nobody wants to travel or stay at a hotel where they might learn something about another culture - that's just crazy. Rather than trust the people of the community and take the time to learn about the culture he set up shop in, Whitten simply called the residents "mountain people" and "potheads who escaped society." I'm interested to see how well a Southwestern adobe-style hotel run by an all-white staff will fare in an area known for its vibrant and interesting culture.

Thankfully this month is almost over.

~Posted by Jane Smith (the blogger formerly known as Andréa Villarreal)

Why Strict Construction and Originalism Cannot Be A Moral Way Of Interpreting The Constitution

2009-10-19T12:21:00.001-05:00

Submitted by TJCLCR Staffer Elliott Becker:

Strict Construction and Originalism have a fair amount of cachet in conservative constitutional jurisprudence and that is fine as they have their merits, but unlike other judicial philosophies are only one (Originalism is a type of Strict Construction) to make the grandiose claim to being the only legitimate method of constitutional interpretation. The idea goes something like this: federal judges are unelected political officials, so judges, unlike the legislature or executive, should defer as much as possible to these elected bodies. For Strict Construction, it means going by what the words say. For Originalism it means going by what the words meant at the time the law was adopted.

This is a nice sounding idea, and certainly at least somewhat worthy of its due, but there are significant problems with it for constitutional interpretation, all the more so if it is the only method. There are actually enough problems with this methodology to write a book on the topic and there probably are one or two out there already. Nevertheless, I wanted to focus on a couple issues, particularly as regards the Orginalism strand, but this applies to Strict Construction more generally as well.

The very first thing to note is that the American Revolution was a break with the legitimate rule of the British government. By legitimate I don’t mean to make a moral judgment, but instead merely to note that while many people believed that revolution became necessary to overthrow an unjust rule, the government of Britain was both the original government most of colonists had become colonists under and that the government was continuous, there was no junta that took over, it was the British monarchy throughout. But a revolution did occur and the newly independent United States lived under the Articles of Confederation for a few years before deciding they weren’t working and a big enough group of states emerged to adopt the new Constitution. When some states broke with the Articles of Confederation, the Articles required unanimity to end them, and yet that is not what happened. The always intransigent Rhode Island refused to end them, so the other states just ignored Rhode Island. So the states weren’t following the law there. To recap then, in two of the U.S.’s fundamental moments, carried out by our venerated founding fathers, they weren’t following the expressly written rules. But OK, they are patriots, and to some people’s mind a better group of people than at any other time.

How about this then, the Constitution was written in secret and the provisions for amending the Constitution are literally the most difficult in the world according to Prof. Sanford Levinson. Originalism says that judges ought to abide by this constitution’s terms regardless of any manifest injustice they would work. Really? A constitution, drafted in secret by a small group of white men hundreds of years ago, with ridiculously difficult to affect terms, and judges should just do what it says. Really.

Alright, what about the issue of enfranchisement? Black people and women have both been enfranchised over the course of U.S. history, but when the constitution was amended to make that change it wasn’t followed up with a new constitutional convention. No, instead black people and women were just told to enjoy their votes (and not even often that) and accept the constitution they were given. That is the exact opposite of what a constitution is supposed to be. A constitution is supposed to be a contract by a society with itself on how it is going to govern itself. It isn’t meant to be imposed on a particular polity and told they have the tools to alter the contract. It would be like if I made you live in a house I had made, and told you if you didn’t like it that you had a screwdriver and that was the only way you were allowed to alter things. It might seem a bit unfair.

The above is meant to be the basis of an attack on Orginalism at the roots. We can’t simply accept the Constitution as it arrives to us, laden with injustice already as it is. To continue the attack to the end is beyond the scope of this post, but other the part is less theoretical and more practical, showing how Originalism is frequently used as mere pretext and discarded as needed by its advocates (Scalia in Heller for example). Also, some discussion is needed of the futility of trying to come to some sort of consensus on what words mean or meant when originally written (how do you define ‘right’?). Nevertheless, on its own the above should serve adequately to explain the moral bankruptcy of Originalism and Strict Construction.

But what of the Supreme Court, bereft of Originalism, with no lodestar to guide them in their grave tasks. In a shocking turn of events, the justices will have to come to judgments based on justifying their arguments to each other and the public. Law is a complicated mix of justice, social norms, institutional interactions and other things, and it should come as no surprise that there is no magic formula that produces the right result in all cases. Therefore a variety of methods, including Strict Construction and Originalism, should be used to produce a just result for society.

Upcoming Events

2009-10-14T14:25:00.003-05:00

Please check out the upcoming events we've got going on! We have some interesting speakers coming that you don't want to miss. We'll keep a running list of them to the right so make sure to keep checking back!

~Andréa

Is Texas' Ban on Gay Marraige Unconstitutional?

2009-10-04T22:46:00.003-05:00

A judge out of Dallas thinks so. Two men who were married a few years ago in Massachusetts and then moved to Texas came to her courtroom on Thursday seeking a divorce. Legally, since they have residency here in Texas, it was the only state they could be divorced in. Rather than trying to make any kind of narrow ruling, the judge said that our state's ban on gay marriage violates the guarantee of equal protection.

I think this is a big step. And it was an interesting way to take it. After all, in order to legally release someone from a marriage, you have to recognize it as a legal marriage in the first place. I don't even have to dust off my crystal ball to tell you to expect some interesting litigation (and some unnecessary slandering) in the near future.

Here's a link to the Dallas Morning News article about it:
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/100109dnmetgaymarriage.1d5a0d50d.html

~Andréa

Welcome Back! 2009-2010

2009-09-21T13:03:00.004-05:00

On behalf of the board of the Texas Journal on Civil Liberties and Civil Rights I would like to welcome our new members! We had a wonderful showing of students interested in joining the staff and are pleased with the quality of our new staffers. This year should be the best one yet! Stay tuned for details on what we're working on.

And now, let's get down to it:
As you might have heard, last week Ohio prison workers had some unexpected trouble giving Romell Broom the lethal injection. Broom reportedly winced and cried while flexing, tugging on the tourniquet, turning from side to side, and doing everything in his power to help the prison workers find a vein strong enough to take the lethal injections. After 2 hours and 23 minutes of poking, prodding, and even inserting a shunt into Broom's leg, Ohio Governor Ted Strickland finally called the execution off...and rescheduled it.

This has raised some serious Constitutional concerns: Mr Broom's lawyer has filed lawsuits alleging that Broom's civil rights would be violated by another execution attempt, and others are debating the legal question of whether subjecting Broom to a second execution amounts to cruel and unusual punishment in violation of the 8th Amendment.

But apparently this isn't the first time Ohio has had this problem. The ACLU reports that this is the 3rd time in 3 years.

Supposedly lethal injection is the "most humane" or at very least "most accepted" method of execution - but should that be reassessed? Just the first attempt - 2 hours and 23 minutes of being stuck with needles sounds like torture to me. But if the 2nd attempt were successful would it simply negate the 1st? At what point would his civil rights be violated - and do you take his crimes into consideration?

What do you think?

~Andréa

When are warrantless car searches ok?

2009-04-22T18:09:00.004-05:00

On Tuesday, the Supreme Court answered this question in Arizona v. Gant.

The case involved Rodney Gant, a man arrested in Arizona for driving with a suspended license. After police placed him in the patrol car, they searched his vehicle and found cocaine. Gant's counsel argued that this was an improper search barred by the Fourth Amendment.

Since New York v. Belton was decided in 1981, courts had been relying on this precedential language: “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.” The problem - how "contemporaneous" does it have to be? Up until Tuesday, this limited authority to perform a warrantless search had arguably been expanded to allow "routine" car searches after suspects (for any crime involving a vehicle) had already been placed in custody.

In Tuesday's 5-4 decision, the Court ruled that the only way police can conduct a warrantless search of a car as part of an arrest is if the person being arrested is (1) within reach of the car or (2) the police officers have reason to believe that “evidence of the offense of arrest might be found in the vehicle.” The "within reach" test is to protect the officers and the second part is to prevent tampering with evidence.

The Court said that there was no way Gant could have reached his car to tamper with evidence nor did he pose any safety threats to the officers - he had been searched unconstitutionally.

~ Andréa

Welcome!

2009-04-10T12:31:00.001-05:00

We're in the process of building and launching a new TJCLCR blog and website. Please bear with us as we get things off the ground!

Here's a little bit about what we do:

The Texas Journal on Civil Liberties and Civil Rights is a publication coming out of the University of Texas School of Law in Austin. The Journal synthesizes and analyzes current thinking on issues in various areas of civil liberties and civil rights through articles by legal scholars, practicing attorneys, state and federal judges, and students. We publish twice a year [subscribe] in conjunction with the Individual Rights and Responsibilities (IRR) Section of the State Bar of Texas. The IRR provides us with funding and a readership base while the journal publishes IRR news and announcements. The Journal is also available on Westlaw, Lexis, and HeinOnline, and is carried by the majority of important institutions.