July 2010

  • July 15, 2010
    BookTalk
    ToughLiberalBT.jpg
    Tough Liberal: Albert Shanker and the Battles Over Schools, Unions, Race and Democracy
    By: 
    Richard D. Kahlenberg

    Richard D. Kahlenberg is a senior fellow at The Century Foundation and the author of Tough Liberal: Albert Shanker and the Battles Over Schools, Unions, Race and Democracy (Columbia University Press), now out in paperback.
    As The New York Times recently noted, tensions between the Obama Administration and the nation's two teachers' unions have reached a crescendo this summer, with not a single administration education official speaking at either union convention. What's behind the apparently frosty relationship between the administration and one of the Democratic Party's most loyal constituencies?

    One union staffer told me that teachers' unions feel like Obama's "Sister Soljah," referring to the hip hop artist whom Bill Clinton chastised in order to distance himself from Jesse Jackson in the 1992 presidential campaign. During the 2008 election, when asked by Fox News which Democratic constituencies Obama was willing to cross, he singled out teachers' unions.

    In office, Obama's secretary of education, Arne Duncan, has clashed with teachers' unions on a number of issues, but the disagreements have crystallized over the important policy question of how to turn around the nation's worst performing schools. Duncan has emphasized two approaches: firing at least half the teachers in failing schools and bringing in privately run charter schools, the vast majority of which are non-unionized. In February, when the Central Falls, Rhode Island board fired the entire staff at Central Halls High School - a move decried by students who admired many of their dedicated teachers - President Obama personally intervened on the side of management. (He didn't explain why the PE and art teachers were to blame for low test scores in reading and math.) The school board itself eventually worked out a deal to reinstate teachers.

  • July 14, 2010
    In spring the Obama administration announced it would seek a new law allowing investigators to interrogate terrorism suspects without informing them of their Miranda rights. Then in July the Supreme Court ruled in Berghuis v. Thompkins that it is not sufficient for criminal suspects to remain silent to invoke the Miranda rule, which was developed to protect an individual's Fifth Amendment right against self-incrimination.

    Instead the slim majority, led by Justice Anthony Kennedy said that criminal suspects must speak up and tell interrogators that they want to remain silent before their Miranda rights are invoked. Writing for The Root, University of Maryland law school professor Sherrilyn Ifill maintained that "police officers may now interrogate detainees for hours on end - no limit is suggested by the court - and so long as the detainee does not use the magic words that expressly indicates a refusal to answer questions or the desire for an attorney, any words uttered - no matter how few - may be used against him."

    During a recent ACS panel discussion, constitutional law experts discussed Miranda's future in light of the recent court rulings, such as Berghuis, and the administration's announcement that it would seek a broad exception to the Miranda rule, established in the 1966 landmark ruling in Miranda v. Arizona.

    Constitutional law expert and Georgetown University Law Center Professor David Cole noted that a "public safety exception" has already been created by the Supreme Court and that further carving out exceptions to the Miranda rule for waging war against terrorism, a nebulous term, would only further weaken constitutional rights for citizens and noncitizens. And broadening an exception to the Miranda rule, Cole added, would likely be unconstitutional.

    It is not clear why Congress should be speaking to this matter, Cole (pictured) said. Miranda, he continued, is a judge-made rule driven by constitutional concerns. And the last time Congress "waded into" the realm by trying to re-write Miranda, the high court invalidated the action.

    The panel also included Michael German, policy counsel for the ACLU and a former FBI special agent, and Benjamin Wittes, a senior fellow and research director at Brookings. Video of the panel discussion, "Miranda's Future," is below.

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  • July 13, 2010

    The nation's indigent defense system is woefully inadequate and calls out for a strong federal response, writes Professor Cara H. Drinan in an Issue Brief released today by ACS. Drinan's Issue Brief, available here, proposes federal legislation to help overcome a "national crisis in indigent defense services." At the moment, Drinan asserts, many states are far from meeting their obligations under the Constitution's Sixth Amendment.

    During the 2010 ACS National Convention, Stephen B. Bright, president and senior counsel for the Southern Center for Human Rights, participated in a panel discussion that focused on increasing a federal role in improving indigent defense. Following the discussion, Bright talked with ACSblog about indigent defense services nationwide, calling the situation extremely lopsided in the favor of prosecutors. He compared the situation to "literally like the New York Yankees," playing a little-league softball team. "In many parts of the country we don't have a system," Bright said. In many states, there are no public defenders offices and instead judges appoint lawyers, often overworked, to represent poor defendants. In those cases, Bright continued, the lawyers loyalty is often to the judges who appoint them and not to defendants.

    Bright said greater independence, more structure and resources are needed to turn the situation around. Bright's interview is below. Video of the panel discussion, "The Federal Role in Improving Indigent Criminal Defense," is available here.

  • July 13, 2010

    At a plenary panel discussion called "Congress and the Courts," at the 2010 ACS National Convention, constitutional law expert and ACS Board member Pamela S. Karlan provided a succinct, cogent explanation of the importance of an intellectually strong and independent judiciary and a federal bench filled with judges who understand the Constitution's values and their role in ensuring enforcement of constitutional rights. Karlan said the Constitution's principles "were intended to endure for a very long period of time" and be applicable for a nation that would eventually emerge. Karlan also described Congress' role in ensuring the constitutional guarantees through the Reconstruction Amendments and the vital role that U.S. District Courts and federal appeals courts play in protecting and ensuring applicability of constitutional principles.

    Video of Karlan's comments are below or they can be downloaded as a podcast here. The entire plenary panel discussion can be watched here.

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  • July 12, 2010
    The arrest of Lonnie David Franklin, suspected of being the "Grim Sleeper" seriel killer in Los Angeles, while being "an investigative triumph," should prompt concern about the methods police used to obtain the suspect's DNA, writes Elizabeth E. Joh in an op-ed for the Los Angeles Times.

    It is during these moments -- of seemingly investigative victories -- that "can blind us to the dangers of expanding genetic surveillance," Joh, a professor of law at UC Davis School of law, maintains. Joh describes three uses of DNA evidence that were used in the Grim Sleeper case that should trigger concern for the Fourth Amendment: "familial DNA searches abandoned or discarded DNA and sweeping arrests, or DNA dragnets.

    Regarding discarded DNA, Joh writes:

    The second investigative technique used in the Grim Sleeper investigation was the use of ‘abandoned' or ‘discarded' DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.

    Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?

    Joh's entire article is here. Joh recently participated in a panel discussion about the Fourth Amendment and technology's impact on the amendment's scope. Video of the panel, "Technology, Change, and the Future of the Fourth Amendment," is available here.