Civil rights

  • 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.

  • January 18, 2017
    Guest Post

    by Bill Yeomans, Fellow in Law and Government at American University Washington College of Law

    The election of Donald Trump has thrown the federal bureaucracy into uncertainty and nowhere is that uncertainty felt more strongly than in the Civil Rights Division of the Department of Justice. Trump’s campaign invoked racism, misogyny, xenophobia and disregard for the rule of law – all directly at odds with the fundamental laws that the Division enforces. The nomination of Sen. Jeff Sessions for attorney general confirmed the worst fears of Division lawyers that, once again, it is in the crosshairs of an incoming administration that is hostile to its mission. Many who work there face a decision whether to stay or go.

    I know. I spent 26 years in the Department of Justice, starting in the Jimmy Carter presidency and running through the transitions to Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush. I chose to stay in the belief that the work of combating discrimination remained essential and to challenge the new administration to adhere to the Division’s tradition of formulating its positions through reasoned, legal argument, rather than political fiat. I recognized both that the career attorneys – with their fidelity to the law and knowledge of the Department’s customs and traditions--presented the strongest impediment to radical, lawless change and that even in the most challenging times important work could be done. In the weeks since the election, I have been approached by career attorneys wondering whether the Division will remain a place where they can work. My answer is that it is an intensely personal choice, but that they should understand that they have an important role to play in pressing for continued enforcement of the law and against politically driven retreat. Indeed, the corps of dedicated career employees remains the principal bulwark against the threat of a lawless executive.

    Since its creation in the Civil Rights Act of 1957, the Civil Rights Division has increased opportunity for large segments of the population. It has expanded access to meaningful voting; desegregated police and fire departments; attacked school desegregation; opened housing markets; expanded access to employment and accommodations for people with disabilities; and prosecuted police officers for using excessive force, people who engage in hate motivated violence and those who traffic in human beings. 

  • May 2, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    The city of Cleveland recently settled a federal wrongful death lawsuit for $6 million with the estate of Tamir Rice, a 12-year-old boy shot to death by Cleveland police officers on November 22, 2014. The shooting death of Rice, along with the deaths of Eric Garner, Sandra Bland, Freddie Gray, Michael Brown, Walter Scott and too many others have led to the incisive interrogation of the police narrative in their use of deadly force, particularly in the shooting deaths of men and women of color. Not all such deaths however, have received the widespread condemnation and exposure that the deaths of Rice, et al. saw, exposure that spawned the Black Lives Matter movement.      

    A journalist from the San Francisco Bay area recently sent me a video taken with a police body camera from a May evening in 2014, looking for analysis, context and commentary. The video showed police officers from the city of Hayward, California as well as officers from the Bay Area Rapid Transit (BART) police attempting to take James Greer, a 46-year-old man of color and grandfather who reportedly weighed 380 pounds, into custody on suspicion of driving under the influence. Hayward police had stopped Greer’s pickup truck and administered a brief field sobriety test before making the decision to arrest Mr. Greer. An officer asked Mr. Greer if he suffered from any medical conditions and he replied that he suffered from a hernia and pointed to the area of his stomach. Greer initially cooperated with officers, but then began offering resistance that can best be described as minimal and perfunctory. As is in keeping with standard police practices that are of late far too frequently captured and memorialized via video, Greer was immediately, violently, and decisively slammed to the pavement—on his stomach.          

    I have seen many of these “police videos” and am frequently sought out for comment and perspective on what is depicted. What I saw in the Hayward police video was one of the most shocking, outrageous, offensive, and noxious examples of police excess that I have ever witnessed—this in a career as a police practitioner, academic, observer, and analyst that dates back to the 1970s.

  • February 8, 2016
    BookTalk
    Vagrant Nation
    Police Power, Constitutional Change, and the Making of the 1960s
    By: 
    Risa L. Goluboff

    by Risa L. Goluboff, John Allan Love Professor of Law and Professor of History, University of Virginia School of Law

    Long before I finished writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, my new book about the rapid downfall of age-old vagrancy laws in the 1960s, I began talking about it with colleagues, lawyers, and friends. Each time I did, they pointed out connections to the present.

    The present each had in mind was very different, however. To poverty lawyers and scholars, my tale of the downfall of vagrancy laws—originally passed and long used to criminalize the status of being idle and poor—naturally led to questions about homeless policies today. To political activists who learned from my book that vagrancy laws had long been used against unpopular speakers—everyone from the Industrial Workers of the World to Communists to civil rights leaders and Vietnam War protestors—Occupy Wall Street seemed the natural endpoint. Scholars and activists focused on race and policing saw how stop-and-frisk in many respects had replaced the vagrancy arrests of those who seemed suspicious to the police. More generally, they reflected that the arbitrary and discriminatory policing I describe in the book is still (or once again) the subject of considerable controversy and social movement organizing today. Those interested in criminal law identified analogues to the vagrancy laws in the criminalization of certain people for their status—though now the most obvious examples are convicted sex offenders and undocumented immigrants rather than gay men, prostitutes, or poor people.

    My colleagues were all right. Much of the social, criminal, and political regulation that exists today has roots, analogues, echoes, or precursors in the single category of criminal law that made vagrancy illegal in every state in the nation for hundreds of years. Vagrancy laws that outlawed not only being idle and poor but also being immoral or dissolute, or wandering about with no apparent purpose, were eminently flexible. They could do, and did do, just about anything law enforcement authorities—or the powerful people in their communities—wanted them to do.

  • September 18, 2015
    Guest Post

    by Michael Waterstone, J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles 

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.

    I believe the disability rights movement has more to offer constitutional law, and constitutional law has more to offer the disability rights movement. This is the case for at least several reasons.

    First, even assuming that the ADA is a more effective tool to combat the discrimination most people with disabilities face in their daily lives, its vitality is under constitutional attack. Cases like Garrett and Lane challenge Congress’s ability to legislate on behalf of people with disabilities under its Section 5 of the Fourteenth Amendment powers, and these attacks will continue. With equal protection law, if you are not playing offense, you are not playing adequate defense either.