ACSBlog

  • April 24, 2014
    Guest Post

    by Liliana M. Garces, William C. Kidder and Gary Orfield. Garces is an Assistant Professor of the Higher Education Program and Research Associate of the Center for Study of Higher Education at Penn State College of Education, Kidder is the Assistant Executive Vice Chancellor at the University of California at Riverside, and Orfield is the Professor of Education, Law, Political Science and Urban Planning and Co-Director of the Civil Rights Project/Proyecto Derechos Civiles at the UCLA.

    Chief Justice Hughes famously said that a dissenting opinion is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”  Dred Scott, the Civil Rights Cases, Plessy, Korematsu – In these and other landmark race-related cases, dissenting Justices spoke eloquently to “the intelligence of a future day” in laying bare the errors in the holding and reasoning of the Court’s majority opinions.

    Justice Sotomayor’s dissenting opinion in Schuette, joined by Justice Ginsburg, is both brooding and compelling in the way it speaks to an intelligence of a future day, a day when “As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.  It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”

    We deeply regret the decision by the Supreme Court upholding Michigan’s ban on race-sensitive admissions as constitutional and overturning the Sixth Circuit’s en banc ruling that the referendum violated the federal constitutional guarantee of equal protection.  On the heels of recent voting rights and campaign finance decisions – that not only creates enormous barriers but further weakens minority political power and increases the power of money – the Schuette  ruling exemplifies how legal decisions can ignore the stark realities of our nation and the deep racial inequalities that continue to exist in America. 

    The reality in Michigan is that 64 percent of whites but only 14 percent of African Americans (Michigan’s largest minority group) voted in favor of Proposal 2 in that state.  And our research at the Civil Rights Project shows myriad educational inequalities in Michigan that corroborate Justice Sotomayor’s observation about the “simple truth that race does matter.” Michigan K-12 schools are some of the most racially segregated in the nation: Over half (53 percent) of African Americans in Michigan attend schools where less than ten percent of the student body is white.  And contrary to Justice Roberts’ facile notion that race-conscious programs “do more harm than good,” Michigan’s ban on these policies caused the proportion of African Americans graduating from the University of Michigan Law School to drop below three percent, the lowest percentage at the School since 1969. 

  • April 24, 2014

     
    A new Justice Department initiative could expand clemency eligibility for nonviolent drug offenders. Announced Wednesday by Deputy Attorney General James M. Cole, the plan “would canvass the entire federal prison population for the first time to find inmates who committed low-level crimes and could be released early.” Matt Apuzzo at The New York Times examines the implications of the DOJ’s decision. 
     
    Justice Sonia Sotomayor read her impassioned dissent in Schuette v. Coalition to Defend Affirmative Action from the bench Tuesday, stating that the plurality were “out of touch with reality [and] one not required by our Constitution.” MSNBC’s Adam Serwer reports on the “simmering tensions over the high court’s approach to race.”
     
    Garret Epps at The Atlantic explains how Seventh Circuit Judge Richard Posner’s opinion involving a chicken-gutting case, demonstrates “how judges change details they don’t like.”
     
    Joel Mintz at the CPRBlog explains why the Environmental Protection Agency’s Final Enforcement Strategic Plan “contains a modest silver lining in an ominous dark cloud.”
     
    At Womenstake, Beccah Golubock Watson discusses a bipartisan effort by a group of senators to reduce sexual assault on college campuses.
  • April 23, 2014
     
    At The Daily BeastGeoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, discusses his experience on the President’s Review Group on Intelligence and Communications Technologies and why “constant, rigorous, and independent review is essential if we are to strike the proper balance between liberty and security in a changing world.”
     
    The Supreme Court heard oral argument yesterday in a case involving an “Ohio law that criminalizes the spreading of false information about a political candidate during a campaign.”  The challenge comes after an anti-abortion rights group mischaracterized former Rep. Steve Driehaus’ (D-Ohio) stance on abortion during his 2010 reelection campaign. Robert Barnes at The Washington Post has the story.
     
    Yesterday, the Supreme Court upheld Michigan’s ban on Affirmative Action in Schuette v. Coalition to Defend Affirmative Action. Justice Anthony Kennedy wrote for the plurality whilewrote an impassioned dissent. Writing for SCOTUSblog, Amy Howe details the case.
     
    Peter Hardin at GavelGrab notes that if New Jersey Gov. Chris Christie chooses not to reappoint Chief Justice Stuart Rabner it could “give rise to the perception that Christie was attempting to intimidate judges working without tenure.”
     
    At The New Yorker’s Daily Comment Hendrik Hertzberg explains New York Gov. Andrew Cuomo’s decision to join the National Popular Vote (NPV) interstate compact.
  • April 22, 2014
    Today, the Supreme Court “upheld a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities.” In a dissenting opinion, Justice Sonia Sotomayor stated that “the Constitution does not protect racial minorities from political defeat…but neither does it give the majority free rein to erect selective barriers against racial minorities.” Adam Liptak at The New York Times has the story.
     
    Earlier this morning, the Supreme Court heard oral argument in Susan B. Anthony List v. Driehaus. The case deals with the issue of whether it can be a crime to falsify information about a candidate in a political campaign.  NPR’s Katie Barlow and Nina Totenberg break down this issue of free speech.
     
    Writing for The American Prospect, Virginia Eubanks explains why “Big Data might have disproportionate impacts on the poor, women, or racial and religious minorities.”
     
    David Gans at Balkinization responds to George Will’s column for The Washington Post , defending progressive’s constitutional interpretation which “does not force us to choose between liberty and democracy.”  
     
    At The Brennan Center for Justice, Walter Shapiro “[demystifies] the power of money in politics.” 
  • April 21, 2014
    Guest Post

    by Mark M. Jaycox, Legislative Analyst, Electronic Frontier Foundation

    The Electronic Communications Privacy Act (ECPA), which governs when service providers may disclose private online messages like Twitter direct messages, was ahead of its time in 1986. In the nearly three decades since it passed however, it has fallen woefully out of date. The government has used one archaic section to skirt the Fourth Amendment’s warrant requirement and obtain online messages older than 180 days with a simple subpoena based on much less than probable cause. Courts are leading the charge to ensure ECPA doesn't violate the Fourth Amendment, but Congress must step to the plate and make common sense changes to ECPA by explicitly requiring a warrant before the government can access your private online messages or your mobile phone location data.

    Just because your emails are stored online must not mean they have any less protection than if they were printed out and sitting on your desk. The Fourth Amendment's warrant requirement can not be ignored. The archaic law is an example of a typical statute that isn't "technology neutral." Nowadays people store emails and other private messages they care about most for extended periods of time online.

    The statute is also out of date regarding how law enforcement can obtain location data from your mobile phone. ECPA does not specifically say when geolocation can be obtained by law enforcement, so many law enforcement agencies don't currently obtain a warrant when they want your mobile location in the past or present. It's another example of how flaws in ECPA have been abused by the government to skirt the Fourth Amendment’s protections.

    In both instances, Courts are leading the charge to ensure ECPA is in line with Fourth Amendment requirements. In a U.S. Court of Appeals for the Sixth Circuit opinion called U.S. v. Warshak, the Court noted that emails and other private communications are protected by the Fourth Amendment. As a result, many Internet providers and other companies storing online communications require a warrant in all cases, despite any language in ECPA to the contrary. When it comes to issuing a warrant for geolocation, a circuit split exists between the U.S. Court of Appeals for the Third Circuit, which ruled that a warrant could be required for location information, and the U.S. Court of Appeals for the Fifth Circuit, which ruled that an order based on a lower threshold suffices. At the state level, courts in New Jersey and Massachusetts have firmly sided on ensuring law enforcement obtains a warrant, while states like Utah, Indiana and Montana passed laws requiring a warrant for geolocation.

    Congress is only now beginning to catch up with the judiciary. Representatives Kevin Yoder, Tom Graves, and Jared Polis have introduced The Email Privacy Act, which provides a "clean" update to ECPA by requiring law enforcement obtain a warrant before seeking any online private messages. And Senator Ron Wyden and Representative Jason Chaffetz have introduced the GPS Act, which requires law enforcement to obtain a warrant before obtaining geolocation.