Civil rights

  • 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.

  • August 20, 2015
    Guest Post

    by Michael Vargas, Associate, Rimon, PC. Vargas is programming co-chair of the Bay Area Lawyer Chapter.

    When President Obama nominated then-Georgetown law professor Chai Feldblum for a seat on the Equal Employment Opportunity Commission (EEOC) in 2009, it was clear that the former counsel to the Employment Non-Discrimination Act (ENDA) was going to shake up the Commission. As the first openly LGBT person to sit on the Commission, she did not disappoint. In 2012, the Commission announced its unanimous decision in Macy v. Holder (ATF), holding that discrimination against transgender employees was sex discrimination and actionable under Title VII. On July 16, 2015, the Commission issued an even more revolutionary decision in Complainant v. Foxx (FAA), holding that discrimination on the basis of sexual orientation is also sex discrimination and, therefore, must also be actionable under Title VII.

    In the EEOC’s decision, an unnamed complainant filed a complaint alleging that his supervisor would say things like “we don’t need to hear about that gay stuff” whenever the claimant would talk about his partner, and that he was subsequently denied a promotion. In dismissing the case, the FAA treated the complainant’s sexual orientation claim as separate from his sex discrimination claim and therefore not appealable to the EEOC.

    The EEOC summarily reversed the FAA, holding that sexual orientation was “inherently a sex-based consideration” and therefore was “necessarily an allegation of sex discrimination under Title VII.” The EEOC rested their decision on three different theories:

    First, the EEOC argued that sexual orientation necessarily involves treating employees differently because of their sex. To illustrate, the Commission gave the example of a male employee who is fired for having a picture of his husband on his desk when female employees with pictures of their husbands on their desks are not. This, the Commission declared, would be a classic case of sex discrimination.

    Second, the Commission found that sexual orientation discrimination was essentially associational discrimination, which is already recognized in the race discrimination context. If a person cannot be discriminated against because of the race of their spouse, then so too should they be protected from discrimination because of the gender of their spouse.

    Finally, the Commission recognized that discrimination against gays and lesbians is tinged with sex stereotypes, or expectations about what men or women should or should not do, which is yet another form of prohibited sex discrimination.

  • August 14, 2015
    Guest Post

    by Franita Tolson, the Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law.

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    The fiftieth anniversary of the Voting Rights Act of 1965 provides an opportunity to reflect, not only on its marveled history, but also on the next frontier of voting rights litigation and policy. The Act has faced unprecedented challenges in recent years, culminating in the 2013 U.S. Supreme Court decision of Shelby County v. Holder. In Shelby County, the Court invalidated the coverage formula of section 4(b) of the Voting Rights Act.  The coverage formula required certain jurisdictions, mostly in the south, to preclear all changes to their electoral laws with the federal government under section 5 of the Act.  The Court found that the formula unduly infringed on the states’ sovereign authority over elections because Congress had not updated the formula in over forty years, and racial discrimination in voting had substantially decreased over this time period. 

    Contrary to the Court’s assertions of post-racialism, the years since Shelby County have welcomed a considerable increase in the number of restrictions designed to undermine the right to vote. According to the Brennan Center, states have introduced 113 bills this year alone that limit access to registration and voting. There also has been litigation challenging voting restrictions in North Carolina and Texas, which enacted very restrictive voting laws immediately following the Shelby County decision.  Unsurprisingly, both the U.S. Department of Justice and private litigants have turned to section 2 of the Voting Rights Act to challenge these provisions after the Supreme Court crippled the preclearance regime of sections 4(b) and 5. Section 2 of the Act forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”  Unlike the preclearance regime, section 2 applies nationwide and allows plaintiffs to challenge a law after it goes into effect.

    The strategic decision by the Justice Department and private litigants to use section 2 to fill the gap left in the Voting Rights Act post-Shelby County has brought renewed attention to section 2’s constitutionality.  The Supreme Court has never directly addressed this issue, and critics argue that section 2 raises many of the same federalism concerns as the recently invalidated coverage formula.  Texas, in the current litigation over its voter identification law, explicitly argued that it is unconstitutional to apply section 2 to address the racially discriminatory effects of its voter identification law absent a showing that the law is intentionally discriminatory. So far, courts have been unresponsive to this type of argument, but very few courts have confronted the issue in the post-Shelby County world. 

  • August 10, 2015
    Guest Post

    by Tram Nguyen, Co-Executive Director, New Virginia Majority

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    The principle of our democracy rests on the idea that each person has a vote that is cast and counted equally, regardless of who they are or where they come from. Fifty years ago, brave women and men marched across a now infamous bridge in Selma, Alabama, facing violence and risking death, asking only for that simple and fundamental right to vote. Today access to the ballot box is being threatened across the country and the struggle to defend our right to vote is still real.

    Since the Shelby decision eviscerated the protections of the Voting Rights Act for which they fought, emboldened state legislatures across the country, particularly those that were previously covered under pre-clearance requirements, are passing more and more laws making it harder for citizens to vote.

    For years, we in Virginia have been fighting against attacks on our voting rights. Prior to the Shelby decision, we could at least count on the Department of Justice to review proposed voting changes, and we could challenge the laws before they were enacted. Now we are forced to challenge voting restrictions in the courts after they’ve taken effect, which can not only be a costly and lengthy process, but many voters already will have been unable to cast a ballot as a consequence.

    Given the current voting rights landscape, civil rights advocates are getting more creative about how to protect voters from the most negative impacts of such restrictive laws. Across the country, many are looking at ways to work with secretaries of state and other election officials as they adopt regulations to implement these new laws.

    For example, Virginia’s new voter photo ID law went into effect in 2014 without being subject to any sort of review. While the law was passed in 2013, an enactment clause delayed implementation until July 1, 2014, which gave voting rights stakeholders over a year to work with the State Board of Elections on specific regulations. We worked with the State Board of Elections under two different administrations – Governor Bob McDonnell (R) and Governor Terry McAuliffe (D), and ultimately the final regulations had bipartisan support.