ACS Issue Brief

  • November 19, 2015
    Guest Post

    by Ann C. Hodges, Professor of Law, Richmond School of Law

    The Supreme Court’s grant of certiorari in Friedrichs v. California Teachers Association suggests that it is considering overturning almost 40 years of precedent allowing unions to charge for the representation that they are required to provide to workers. Little has changed since the Court, in Abood v. Detroit Board of Education, approved this important part of the labor relations systems adopted by many states to deal with their workers. In fact, Court decisions since Abood have given employers even more freedom in dealing with their workforces and in restricting the workers First Amendment rights in order to further the employer’s interest in providing efficient and effective government services. 

    In a new ACS Issue Brief I authored addressing Friedrichs, I point out the strong government interests that warrant the very limited infringement on First Amendment rights imposed by requiring employees to pay for the services they receive from unions.  The case is not about charging for union political activity. That is already prohibited. Nor does the requirement to pay fair share fees restrict the ability of employees to advocate for their own views with the government, including opposing the union’s negotiated collective bargaining agreement in open forums. Further the employees can remove the union as representative if a majority of their coworkers oppose union representation. The Court has approved far more onerous restrictions on employee speech rights in the interest of government efficiency. 

    Unions forced to represent workers without compensation will struggle to fulfill their function in the labor relations systems adopted by employers to manage their workforces. The goal of labor peace may be threatened. The resources available to unions to exercise their First Amendment rights and those of their members will be diminished by the failure of employees to pay for the services provided. Reducing the voice of workers in the marketplace of ideas creates even more space for the dominance of the corporate voice. Our democracy flourishes when all participate. Dominance by one segment of society impoverishes us all.

    For more information about the risks posed by invalidating the many existing state statutes allowing unions to charge fair share fees and the reasons that the Court got is right in 1977, read the ACS Issue Brief.

  • October 29, 2015
    Guest Post

    by Vinay Harpalani, J.D., Ph.D, Associate Professor of Law at Savannah Law School @VinayHarpalani

    Race-conscious university admissions policies have always engendered strong opinions and feelings. The debate will again take a public spotlight on December 9, 2015—when the U.S. Supreme Court hears oral arguments in Fisher v. University of Texas at Austin for a second time.  Much to the surprise of many legal observers, the Court decided to once again consider the constitutionality of race-conscious university admissions, only two years after hearing the initial Fisher case. In 2013, the U.S. Supreme Court reversed and remanded Fisher, directing the Court of Appeals for the Fifth Circuit to properly apply strict scrutiny and ensure that the University of Texas at Austin (UT) actually needs to use a race-conscious policy to achieve the educational benefits of diversity. The Fifth Circuit reaffirmed its prior approval of UT’s race-conscious policy in 2014, and this past summer, the U.S. Supreme Court granted Abigail Fisher’s petition for a writ of certiorari.

    I do not expect a profound new result in Fisher (II).  The Court will rule by June 2016, and elsewhere, I have predicted that the Court will strike down UT’s race-conscious policy on narrow grounds. It will likely hold that UT has not satisfied strict scrutiny and demonstrated that it needs a race-conscious policy, in addition to Texas’s Top Ten Percent Law, to achieve its educational goals. I would be surprised if the Court upheld UT’s use of race, and I would be even more surprised if the Court overruled its recent precedents in Fisher (I) and Grutter v. Bollinger (2003) and held that diversity is not a compelling interest. Fisher (II)’s result will likely be limited to UT and not have an immediate impact on other universities.

    Nevertheless, the case does merit attention, because it will signal what universities must do in the future to defend their use of race-conscious admissions policies; and because it exhibits some fundamental values conflicts on the Supreme Court and in American society more generally.  The Top Ten Percent Law automatically grants admission to UT to the top students in Texas public high schools (originally, the top ten percent of each graduating class was guaranteed admission, but this percentage is now smaller due to various amendments to the law). Abigail Fisher contends that UT enrolls enough Black and Latina/o students with the Top Ten Percent Law alone, and that it does not need a race-conscious admissions policy to supplement these numbers. The Top Ten Percent Law does lead to some racial diversity at UT, but this is predicated on de facto segregation in Texas public schools. If a high school has a student body that is over 90 percent Black and/or Latina/o, then it follows that most of the top students in that high school’s class will be Black and/or Latina/o—and will garner automatic admission to UT. Thus, under the Top Ten Percent Law alone, de facto segregation serves as a prerequisite for racial diversity. 

  • May 13, 2015

    by Christopher Durocher

    In August 2014, Ferguson, Missouri police officer Darren Wilson killed Michael Brown. Partially as the result of conflicting accounts of what happened, a grand jury declined to indict Wilson, sparking a national debate about police brutality, particularly against people of color, and the limits of police accountability. Through numerous incidents of police abuse that have followed, culminating most recently in protests and civil unrest in Baltimore after the death of Freddie Gray, one proposed reform has gained much attention – the adoption of police body-worn cameras.

    As the nation wrestles with the possibility that police brutality may reflect structural, implicit bias against people of color, supporters of police body-worn cameras argue that they would provide an objective record of what transpired when an interaction between a police officer and a civilian leads to the civilian’s injury or death. As evidence of video’s power, they point to North Charleston, South Carolina police officer Michael Slager, who was charged with first degree murder three days after shooting Walter Scott.  Slager’s indictment was due in large part to a video recording of the shooting that contradicted his report of events. Supporters also point to the benefit of body-worn cameras in disproving false claims of abuse against police and in encouraging both police and civilians to “be on their best behavior,” since they know a camera is recording their words and actions.

    Skeptics, however, point to the death of Eric Garner in Staten Island as evidence that cameras, at least absent fundamental changes in policing, will have little impact on police behavior or accountability. Garner’s tragic death occurred when one of the five New York City police officers attempting to arrest him for a minor infraction put him in what appeared to be a banned chokehold. Despite shocking video of Garner’s arrest – in which he can be heard pleading that he is unable to breathe – prosecutors refused to indict the officer. Video failed to bring justice for Garner or his family.

    In the ACS Issue Brief “Police Body-Worn Cameras: Evidentiary Benefits and Privacy Threats” Professor Marc Jonathan Blitz of Oklahoma City University School of Law examines the costs and benefits of body-worn cameras programs and, while acknowledging that cameras will not serve as a panacea, outlines policies that police departments should adopt to ensure the maximum effectiveness of such programs.  As Blitz observes, “Even when camera evidence is flawed, it is often far better than eyewitness accounts, especially when such eyewitness accounts are given long after the events.”

  • December 3, 2014

    by Christopher Durocher.

    Six years ago, in Heller v. District of Columbia, a divided Supreme Court held for the first time that the Second Amendment to the U.S. Constitution protects an individual right to bear arms. This decision called into question the viability of gun-safety regulations across the country, including in high-crime urban areas in which the need to address gun violence is particularly acute.  Just this past July, a federal district court judge in DC concluded, “In light of Heller [and its] progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny.” It’s not so clear, however, that Supreme Court precedent or the Second Amendment, itself, require the rejection of this and other gun-safety regulations.

    In the ACS Issue Brief “The Constitutional Case for Limiting Public Carry,” Professor Lawrence Rosenthal of Chapman University Fowler School of Law examines the Second Amendment’s historical context and concludes that, even accepting an originalist reading that the Constitution protects an individual’s right to bear arms, the drafters of the Second Amendment anticipated the need for and value of gun-safety regulations. Far from proscribing regulation of firearms, the drafters understood that regulation was appropriate, including the types of restrictions on open and concealed public carry that cities throughout the United States have adopted.

  • October 15, 2014

    by Katie O’Connor

    This past spring, McCutcheon v. FEC dealt the latest in a series of blows to campaign finance reform, striking down aggregate limits on the total amount of money a person can contribute to all candidates, parties, and PACs. Chief Justice Roberts wrote the opinion for the majority of the Court and Justice Breyer dissented. In this ACS Issue Brief, Alan Morrison asserts that while “the Chief Justice is right that the prior decisions of the current Court, as well as some of its predecessors dating back to Buckley v. Valeo, almost certainly support his conclusion on the invalidity of aggregate limits…Justice Breyer has by far the better argument that our democracy and the Constitution permit campaign finance laws that prevent more than what the majority will allow.”

    By the time the Court considered the aggregate limits in McCutcheon, most of the arguments in defense of such limits and other campaign finance reforms had been gradually eroded by the Court’s previous cases. The only defense to aggregate limits in McCutcheon was an argument that, without such limits, donors would be able to circumvent limits on contributions to parties, candidates, and PACs. However, there were a number of weaknesses in this defense, and given the Court’s decision in Buckley v. Valeo, it could hardly withstand scrutiny. Thus, the Court struck the aggregate limits as unconstitutional.