Guest Post

  • January 20, 2015
    Guest Post

    by Cameron F. Kerry. Kerry is the Sara R. & Andrew H. Tisch Distinguished Visiting Fellow at the Brookings Institution and a Visiting Scholar at the MIT Media Lab. He is the former General Counsel and Acting Secretary of the U.S. Department of Commerce.

    President Obama went to the FTC this past week to address ways to protect privacy and identity in what he called “a dizzying age” of new technologies. 

    One of the many new technologies changing the ways people interact with information is cloud computing. Whether it's Jennifer Lawrence saving intimate photos to Apple's iCloud, startups scaling up with Amazon Web services, or businesses and consumers moving their documents to Microsoft 365 or Google Docs, cloud computing is becoming a familiar part of our digital daily lives.

    Cloud services offer benefits of large-scale computing, which include efficiency, scalability, security, and computing power, as well as ubiquitous access to data from an increasing variety of devices. But turning over data wholesale to someone else also comes with questions about privacy, confidentiality, security, and control. 

    As evidenced by Microsoft’s challenge to a U.S. government warrant for emails stored in a data center in Ireland, these questions also present challenges to traditional notions of sovereignty and territorial jurisdiction because global networks and cloud systems transcend national borders.

  • January 20, 2015
    Guest Post

    by Valerie SchneiderAssistant Professor of Law at Howard University School of Law.

    On Wednesday, January 21, the Supreme Court will hear arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., one of the most important civil rights cases of the 2014-2015 Supreme Court term.  Via this case, the Justices will decide whether disparate impact claims – that is, claims where members of a protected class are disproportionately affected, but where intent to discrimination cannot be proven – are cognizable under the Fair Housing Act.

    Much has been written on the text, legislative history and case law that supports the validity of disparate impact analysis under the Fair Housing Act.  Indeed, as pointed out by many, in the Fair Housing Act’s over 45 year history, every circuit that has examined the issue has either assumed or decided that such claims are cognizable under the FHA.  The Department of Housing and Urban Development also weighed in last year, issuing a rule that clarifies the burden-shifting structure of such claims.  What is less examined, however, is why disparate impact analysis matters, not just as a litigation strategy, but as a behavior-modifier and as a moral imperative.

    Housing segregation was not just sanctioned, but explicitly enforced by public and private actors in our country for over 200 years. During that time, minorities were systematically denied not just access to housing, but access to all of the benefits that flow from housing opportunities:  educational opportunities, economic centers, healthy food, clean air, government services and many other critical threads in the fabric of American life. 

    After over 200 years of enforced segregation, housing discrimination has been prohibited for only 45 years.  Housing discrimination has been outlawed for less than one quarter of this country’s history. To say that prohibiting acts of intentional discrimination alone can reverse the ill-effects of our country’s long relationship with housing segregation is a fallacy.

  • January 19, 2015
    Guest Post

    by Elise C. Boddie, Associate Professor of Law, Rutgers University-Newark; former director of litigation NAACP Legal Defense & Education Fund, Inc.; and a member of the ACS Board of Directors.

    One of the many indelible images of the civil rights era is a black and white picture of an African-American boy, maybe nine or ten years old, holding a poster in front of the Dallas County courthouse in Selma, Alabama. The year is 1964. The boy’s small hands are clutched around the edges of his poster, which in plain, scrawled lettering, calls for people to register to vote in the name of “freedom.”   We cannot see his eyes because they are averted from the camera.  Instead, he has fixed his gaze on a group of policemen who are about to descend upon him and, as we later learn, arrest him just after the picture is taken.[1]

    The picture is a reminder that the right to vote is more literally secure than it was in Selma in 1964.  Less than a year later, Selma would emerge as the birthplace of the 1965 Voting Rights Act, following a march from Selma to Montgomery, led by Dr. Martin Luther King, Jr. and a host of civil rights leaders, including now-Congressman John Lewis.  An earlier attempted march to Montgomery led demonstrators over the Edmund Pettus Bridge, where they were beaten mercilessly by Alabama state troopers before having to turn back, all in full view of the national press.[2]  The horror and disgrace of that moment helped catalyze national support and the political will to pass voting rights legislation.[3]

    We rightly celebrate and honor Dr. King as the “drum major for justice”[4] who helped bring that fight to fruition, along with the countless, nameless thousands – the young Selma boy among them –  who laid their bodies on the line so that future generations could exercise their constitutional rights.   The police no longer beat African Americans in the street for trying to register; and literacy tests, which barred so many Blacks, Latinos, and other people of color from voting, no longer exist as a result of the 1965 Act.  The frontal indignities of Jim Crow at least are gone.

    And yet, like a weed with roots deep beneath the surface, other practices soon emerged in their place, including at-large voting schemes,[5] racially-discriminatory annexations[6] and redistricting plans that sought to “crack” or “pack” minority voters in order to dilute their voting strength.[7]   Evidence of this adaptive discrimination carries through to the present.  For example, following the record turnout of voters of color for Obama in the 2008 and 2012 presidential elections states enacted restrictive laws that made it harder to vote.[8]

    Against a record of  “unremitting and ingenious defiance of the Constitution,”[9] Congress included in the Voting Rights Act a core provision that limited the authority of states with “the most aggravated records of rank discrimination against minority voting rights”[10] to unilaterally change their voting practices.  This “preclearance” provision, known as Section 5, required covered jurisdictions with certain indicia of low voter participation to secure federal approval of any proposed voting changes[11] by demonstrating that they would not disfranchise minority voters.[12]  In a landmark case, South Carolina v. Katzenbach, the Supreme Court upheld the Act against a constitutional challenge,[13] as it would in later cases brought by jurisdictions that sought to evade the statutory protections for minority voters.[14]  In 2013, however, the Supreme Court gutted Section 5 in Shelby County v. Holder, striking down a companion provision that established the scope of Section 5’s geographic coverage.[15]  While acknowledging that voting discrimination persists, [16] the Court concluded that the coverage provision no longer reflected the most “current” manifestations of such discrimination.  In light of “dramatic” improvements in the landscape of voter suppression, the Act’s incursion on the “equal sovereignty” of the states was no longer justified.[17]   

    After Shelby, fifteen states enacted laws that discouraged voter participation.[18]  Although the precise impact of these laws is hard to determine, voters of color appear to have been disproportionately affected in at least five states – Texas, Alabama, North Carolina, Virginia, and Georgia, each of which had been covered by the Act’s preclearance provision before Shelby and each of which had also experienced a significant increase in the population of voters of color.[19]  Thus, in a time of burgeoning “minority” voting power, states have actively sought to limit accessibility to the polls.  The timing, of course, is hardly coincidental, but rather – as a Texas federal district court judge concluded with respect to that state’s photo identification law[20] – appears calculated to suppress minority turnout.[21]

  • January 15, 2015
    Guest Post

    by Michael Leachman, Director of State Fiscal Research, Center on Budget and Policy Priorities, State Fiscal Policy Division

    As state legislative sessions begin, right-wing groups are ramping up a nationwide campaign to convene a constitutional convention to propose amendments that would strip the federal government of much of its power to invest in national priorities and protect civil rights.

    As respected legal voices in the states, ACS members can help defeat this campaign by educating policymakers and the public (through op-eds, testimony and the like) about its radical goals and misleading claims. 

    Here’s the background.  Under Article V of the Constitution, Congress must call a convention to propose constitutional amendments if two-thirds of the states formally request one.  In the late 1970s and early 1980s, many states passed resolutions calling for a convention to propose a federal balanced budget amendment.  At one point, 32 states had passed resolutions along these lines, close to the 34 states required.  But over the next 25 years, no more states passed resolutions and half of the states that had passed resolutions formally rescinded them, fearing that a convention would throw open the Constitution to harmful changes.

    The tide turned in 2010 as the American Legislative Exchange Council (ALEC) and its allies began pushing anew for state resolutions.  Since then, eight states have adopted new resolutions calling for a convention to propose a balanced budget amendment.  Some proponents claim that 24 states have “live” applications, including those passed in the late ‘70s and early ‘80s but never rescinded.  They’ve targeted another 15 states for the coming year.

  • January 12, 2015
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law

    *This piece originally appeared on The Huffington Post.

    On October 6, 2014, the Supreme Court declined to hear seven cases in which federal courts of appeals had found bans on same-sex marriages to be unconstitutional. One month later, a divided court of appeals for the Sixth Circuit, in an opinion written by Judge Jeffrey Sutton, upheld the bans in Michigan, Ohio, Tennessee, & Kentucky. All four groups of plaintiffs have asked the Supreme Court to review that decision, and the Court is likely to decide whether to take up those cases at its conference on January 9, 2015. There are a number of legal issues in the case, but the keys to the ruling below are the two reasons Judge Sutton gave to support the ban, which this essay argues are indefensible under whatever degree of scrutiny the Court applies.

    The majority opinion of Circuit Judge Jeffrey Sutton upholding bans in four states on same-sex marriage has an aura of reasonableness to it, but when it comes to offering real reasons to justify the bans, it cannot withstand analysis. According to Sutton, there are two reasons why the bans are constitutional: (1) they encourage procreation in marriage by opposite-sex couples, and (2) they uphold traditional marriage, while allowing for future change.

    There are three undisputed facts that demonstrate conclusively that those reasons cannot sustain the bans: (1) most of the benefits of marriage for opposite-sex couples are unrelated to encouraging procreation; (2) the laws also preclude civil unions or any other arrangement that confers any of the benefits of marriage on same-sex couples; and (3) the Ohio ban was applied to deny the surviving member of a marriage performed out of state the right to include on the death certificate of his husband the indisputable fact that he was "married."