ACSBlog

  • June 13, 2014

    by Rebekah DeHaven

    On Monday, June 9, the Senate voted to invoke cloture on three district court nominees:

    M. Hannah Lauck, U.S. District Court for the Eastern District of Virginia, 52-32;

    Leo T. Sorokin, U.S. District Court for the District of Massachusetts, 52-33; and

    Richard Franklin Boulware II, U.S. District Court for the District of Nevada, 53-34.

    The Senate followed on Tuesday with confirmation votes on all three:

    M. Hannah Lauck, U.S. District Court for the Eastern District of Virginia, 90-0;

    Leo T. Sorokin, U.S. District Court for the District of Massachusetts, 91-0; and

    Richard Franklin Boulware II, U.S. District Court for the District of Nevada, 58-35.

    The Senate Judiciary Committee was scheduled to vote on twelve nominees Thursday, but eleven were held over. Geoffrey W. Crawford, U.S. District Court for the District of Vermont, was reported out by voice vote.

  • June 13, 2014
    Yesterday, The Southern Poverty Law Center celebrated the 47th anniversary of the landmark Supreme Court case Loving v. Virginia, which struck down 16 state bans on interracial marriage.
     
    Ruby Dee, acclaimed actress and civil rights activist died this week at the age of 91. Bruce Weber at The New York Times and Diamond Sharp at The Root remember the life of an American legend. 
     
     
    The Supreme Court handed down two opinions yesterday. Jaclyn Belczyk at Jurist covers the Court’s decision in the bankruptcy case Clark v. Rameker, while Nina Totenberg at NPR breaks down the legal battle between POM Wonderful and Coca-Cola in POM Wonderful LLC v. The Coca Cola Company.
     
    The Senate Judiciary Committee met last week to discuss the Supreme Court’s campaign finance jurisprudence over the last several years.  In an article for the Louisville Courier-Journal, David Gans notes why we need a constitutional amendment to overturn these decisions.
     
    Writing for Concurring Opinions, Gerard Magliocca likens the Supreme Court justices to World Cup referees.

     

  • June 13, 2014
    Guest Post

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

    Reading the opinion of Judge Treu in Vergara v. California, one gets the sense that the state did not fight very hard to defend its teacher tenure protections from constitutional challenge. From the judge’s recitation of the evidence, it appears that the state “defendant” conceded or provided evidence that there were thousands of grossly ineffective teachers in the California system, that school administrators didn’t bother to try to fire them because they thought it was too hard, that poor teachers adversely affect students’ education and that poor teachers are disproportionately found in schools with large populations of minority and low income students.  

    Based on this evidence, much of it generously submitted by the state defendant, Judge Treu found that the laws that provide teachers with tenure, due process prior to termination and seniority protection from layoff deprive minority and low income students of their fundamental interest in an education of equal quality. Further, and not surprisingly given the recitation of the evidence, the judge found that the defendants did not show a compelling interest to meet the high burden required by the application of strict scrutiny to these laws.

    The California statutes at issue included the following: 1) the statute that provides for teacher tenure after a two year probationary period; 2) the statutes that provide due process for tenured teachers that school districts intend to terminate; and 3) the statute that provides for layoffs on the basis of seniority, with limited exceptions. The judge held that each of these statutes denied students a quality education by allowing poor teachers to remain in the classroom. While the opinion mentions that two unions representing teachers were permitted to intervene, there is little mention of any evidence supportive of the statutes at issue, which might have provided the justification required to establish their constitutionality. 

  • June 12, 2014
    Guest Post

    by Alice O’Brien, NEA General Counsel

    Sixty years ago the U.S. Supreme Court issued its unanimous decision in Brown v. Board of Education overturning Plessy v. Ferguson and uprooting the deep roots of segregation in our society. The victory came after decades of legal work, by a small group of fierce civil rights advocates, paid little and subjected to threats and public denigration. Over the past two years, a team of corporate lawyers, retained and paid by multi-millionaires, have sought to cloak themselves in that rich legacy. 

    Their case, styled Vergara v. California, challenges the statutes that provide California teachers with their most basic employment protections – 1) the right to notice and an opportunity for a hearing before an impartial panel before an experienced teacher is terminated; and 2) the rule that layoffs for budget reasons proceed in qualification (credential) and seniority order unless the district has a special need to depart from that order. None of the challenged statutes determine a teacher’s class assignment or classify teachers or students in any respect; rather they each apply to all teachers in California across the board.

    As an initial matter, the two month trial demonstrated that none of the nine student plaintiffs in the case had been harmed in any way, much less denied their fundamental right to an education under the California Constitution. Two of the plaintiffs go to charter schools, which are not subject to the challenged statutes and two more attend Los Angeles pilot schools in which teachers may be released at the end of each school year without regard to the challenged statutes. The remaining plaintiffs failed to prove that they had ever been assigned to a “grossly ineffective” teacher due to the challenged statutes, which is the term plaintiffs coined to describe the type of teachers whose assignment to a classroom could implicate students’ fundamental rights. In fact, many of their teachers that they sought to tar as grossly ineffective had stellar evaluations and one was recently selected as a teacher of the year.  

    Despite this basic failure of proof, the trial judge struck down all of the employment protections for all teachers in California. The judge applied strict scrutiny to the statutes, finding that some small fraction of teachers—on the order of 1-3 percent—are “grossly ineffective,” and that those teachers’ students have been deprived of their fundamental right to an education. Because, in the judge’s view, each statute could be improved in some respect (by extending teachers’ probationary period, stripping down dismissal rights, and reconfiguring layoff criteria), the judge concluded that none could survive strict scrutiny. 

  • June 12, 2014

    by Paul Guequierre

    Today, four U.S. Senators sent an open letter to Washington Post columnist George Will, after he penned a column dismissing rape and sexual assault as a major problem on college campuses.  Democratic Senators Tammy Baldwin, Richard Blumenthal, Robert Casey and Diane Feinstein condemned Will for his irresponsible idea that victims of sexual assault enjoy “a coveted status that confers privileges.”

    In his column, Will disputes the statistics that one in five women is sexually assaulted while in college, and only 12 percent of assaults are reported. Will also claims that the definition of sexual assault is too broad, including forms of harassment other than rape. 

    The column invokes an old-fashioned blame the victim mentality, saying, “[t]hen add the doctrine that the consent of a female who has been drinking might not protect a male from being found guilty of rape.”  Will’s column, which blames progressive Washington for creating a culture of victims who make up accusations of rape and sexual assault, is dangerous. 

    What Mr. Will needs to understand is that sexual assault is real.  It ruins lives. The senators are right in saying, “There is no acceptable number of sexual assaults; anything more than zero is unacceptable.”

    Mr. Will should listen to the victims of sexual assault, not blame them.