Thursday, December 15, 2011

Learning from Our Parents’ Protests: Occupation Unidentified

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

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. 

Thursday, November 17, 2011

Zombify Wall Street

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

Friday, November 11, 2011

Deliberately Indifferent Training and Brady Violations

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

Tuesday, November 8, 2011

Drug Testing For Welfare Recipients

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

Sunday, November 6, 2011

Taking Students to Court for School Misbehavior

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

Wednesday, November 2, 2011

The Decline of African-American Players in Baseball



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

Monday, October 31, 2011

Net Neutrality and the Amazon Fire

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

Tuesday, October 25, 2011

Horizontalism and the Occupy Movement

          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.

Friday, October 21, 2011

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

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. 

Monday, October 17, 2011

On the Scene at Occupy Austin

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 2nd. 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 2nd 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 2nd 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 7th, the self-imposed end to the occupation.

Kristine Baumstark

Wednesday, September 28, 2011

Are you tipping your waitress or paying the cook?


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

Monday, August 29, 2011

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

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. 

Friday, April 1, 2011

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


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

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


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.