ACSBlog

  • February 23, 2017
    Guest Post

    by Harper Jean Tobin, Director of Policy, National Center for Transgender Equality

    Gavin Grimm, a high school senior in Virginia, had to sit through two public school board meetings during his sophomore year while his neighbors openly discussed his body parts and restroom use while pointedly referring to him as a “young lady,” calling him a “freak,” or comparing him to someone who thinks he is a dog. Gavin is a transgender boy. He had used the boys’ restroom at school for weeks with the full support of his fellow students before those school board meetings, where the school district ultimately decided to bar him from the boys’ restroom. For the over two years since then, Gavin has had to make a “walk of shame” to the nurse’s office each time he needs to use the restroom, a daily reminder that his school thinks he isn’t worthy of being treated like his peers.

    There are hundreds of thousands of transgender students like Gavin in schools all across the country. K–12 schools, as well as colleges and universities, began developing policies over a decade ago to answer everyday questions about supporting transgender students. Today, over 40 percent of U.S. K­­–12 students attend schools with local policies or statewide laws or guidelines that clearly support transgender students’ rights to learn in a safe environment and be treated according to their gender identity, including when it comes to using facilities. 

    Enter Title IX. Starting in 1999, a growing number of federal courts began to rule that federal sex discrimination laws applied to discrimination against transgender people. The rulings relied on two major Supreme Court precedents: Price Waterhouse v. Hopkins (1989), which held that discrimination based on gender stereotypes violates Title VII of the 1964 Civil Rights Act; and Oncale v. Sundowner Offshore Services (1998), which stated that Title VII applies to any gender-based discrimination, not just specific scenarios Congress imagined in 1964. Eventually, five federal appeals courts and over a dozen district courts agreed that Title VII, Title IX, and other sex discrimination laws applied to anti-transgender bias, while only a handful disagreed.

  • February 23, 2017
    Guest Post

    by Louise Melling, Deputy Legal Director and Director of the Center for Liberty at the ACLU

    Religious freedom protects the right to our beliefs.  But does it protect the right of institutions to discriminate? The ACLU, staunch defender of religious liberty, says no. The answer for United States Supreme Court nominee Judge Neil Gorsuch appears to be yes. It is the province and duty of the Senate to press Judge Gorsuch on his stance during the confirmation hearings, as this question promises to be central to significant cases likely to come before Court in the near future.

    The opinions of the U.S. Court of Appeals for the Tenth Circuit that Judge Gorsuch joined and authored addressing Religious Freedom Restoration Act challenges to the contraceptive coverage rule of the Affordable Care Act raise troubling questions about his understanding of religious liberty, principles of equality, and their intersection.  Three points are worth noting.

    First, and most significant, in the Hobby Lobby case, the Tenth Circuit, ruling en banc, gave short shrift, and even embraced the harms, to women that would result were the rule enjoined as to Hobby Lobby.  The court acknowledged that women denied coverage (in that case to four methods of contraception) would suffer an economic burden, but went on to say, “Accommodations for religion frequently operate by lifting a burden from the accommodated party and placing it elsewhere.”   In other words, the court, with Judge Gorsuch joining, accepted that employees should bear the cost of their employer’s religion.

    That’s a position the Supreme Court declined to embrace in its Hobby Lobby decision. The Court affirmed the Tenth Circuit and ruled for the arts and crafts giant, but its ruling, unlike that of the Tenth Circuit, rested on the premise that the government could extend the accommodation it provided to religiously affiliated nonprofit entities to for-profit companies. Critically, that accommodation was designed to ensure that employees would continue to receive seamless coverage of contraception from the insurer. In the Court’s opinion, the effect then on “the women employed by Hobby Lobby … involved in these cases would be precisely zero.” The same cannot be said under the Tenth Circuit’s reasoning, which Judge Gorsuch joined.

  • February 22, 2017
    Guest Post

    by Maura Healey, Attorney General of Massachusetts*

    To pay for the hallmarks of a decent middle-class life, American families have found it increasingly necessary to borrow money. We tell our children that a college degree is essential for their success in the modern economy, but few students can afford the ever-increasing costs of higher education without incurring student loans. (1) We extoll the virtues and benefits of homeownership, but the high cost of housing requires most homeowners to have a mortgage loan. (2) As middle-class wages have remained stagnant, consumers have looked to credit to pay for essential expenses like transportation, medical bills, and childcare. As a result, many American households find themselves deeply in debt.

    Too often, these debts have proven to be disastrous. Countless students sought to learn essential job skills and borrowed heavily to do so, but instead became the victims of high-cost, fraudulent, for-profit schools that offered no meaningful vocational training. (3) Homeowners across the country are still grappling with the consequences of the predatory subprime mortgage loans that caused the financial crisis of 2008. (4) While debt may allow some families to succeed, debt cripples the aspirations and ambitions of many others— approximately seventy-seven million Americans have at least one delinquent debt on their credit report. (5) 

    Given the challenges that consumer debt poses to the economic security of so many people, I applaud the Harvard Law & Policy Review for devoting this issue to discussing the rights and obligations of creditors and debtors and to the appropriate policy responses to America’s ongoing struggles with debt.

  • February 22, 2017
    Guest Post

    *This piece originally appeared on The Hill

    by Sen. Patrick Leahy

    The late Chief Justice William Rehnquist once described the independent judiciary as “one of the crown jewels of our system of government.” That is because the judiciary, insulated by life tenure from elections, can provide a necessary check on the other two branches of government and uphold the constitutional rights of all Americans.

    Now the independent federal judiciary is under attack by a president who seems intent on precipitating a constitutional crisis. President Trump’s attacks on a sitting federal judge reveal the misguided notion that judges owe some allegiance to the president who appointed them or to a political party. Yet these attacks also underscore exactly why the independent judiciary is such a crucial part of our system of government.

    Judges do not consider tweets, they consider the facts and the law. And based on the facts in front of them, federal judges have found President Trump’s immigration order is very likely discriminatory and unconstitutional. As even members of the judiciary have noted, there is nothing wrong with criticizing the rulings of any court, including the Supreme Court. But it is another thing entirely to attack a presidentially appointed, Senate-confirmed judge’s legitimacy, or to attack another based on his heritage. Such attacks reveal a profound disregard for constitutional checks and balances, which preserve the rights of all Americans.

    Now the Senate is asked to consider the very first judicial nominee appointed by President Trump, who in his first few weeks showed an outright hostility toward the judiciary. I had hoped that President Trump would work in a bipartisan way to pick a mainstream nominee like Merrick Garland and bring the country together. Instead, he promised to pick a nominee who would overturn Roe v. Wade and deprive women of the right to make their own health care choices and then outsourced his selection process to far-right interest groups. These groups receive significant funding from the Koch brothers and other conservative donors. Americans deserve a justice who will apply the law, not the ideology of a few wealthy mega-donors.

  • February 21, 2017
    Guest Post

    by Amy Myrick, Staff Attorney for Judicial Strategy, Center for Reproductive Rights

    A few weeks into the Trump presidency, the role of the courts is front and center. The first headliner dispute is over President Trump’s executive order on immigration – centrally, what degree of deference or scrutiny courts owe to an action that the president claims is within his plenary power. These questions will define legal proceedings of many types over the next months as President Trump seeks to detonate policy across the board, asserting that he has vast power to make America purportedly safer, healthier, richer and of course greater – and any person or judge, who suggests otherwise is fraudulent.   

    How -will courts react?  They might consider a model that the Supreme Court put forth in Whole Woman’s Health v. Hellerstedt, a case it decided last June. The opinion focused on how judges should properly apply a legal standard that lower courts were wielding in a range of ways, some of which deferred sharply to lawmakers, and some of which required meaningful judicial review. In clarifying the standard, the Court in Whole Woman’s Health developed a set of three principles for judges to follow in constitutional disputes. Those principles undercut singularly damaging features of President Trump’s policy approach – his disregard for whether laws address a real problem or else just burden people, and his outright rejection of credible evidence. Although Whole Woman’s Health was about abortion restrictions, its model is useful in other areas, now more than ever.