ACSBlog

  • August 10, 2016
    Guest Post

    by: Niyati Shah and Archita Taylor, Election Counsels at Project Vote

    As many have already noted, this year will be the first presidential election without the full protections of the Voting Rights Act (VRA). In the absence of some of the VRA’s key provisions, particularly Section 5, voting rights advocates have engaged in lengthy lawsuits across the country to contest some of the most egregious offenders of federal election laws and the Constitution.

    Last week alone, courts struck at the heart of state laws diluting the franchise in three different states – North Carolina, Texas, and Wisconsin. All three required a photo ID before casting a ballot. In each case, these laws were challenged under the equal protection clause of the Fourteenth Amendment, the Fifteenth Amendment, and Section 2 of the VRA. The Supreme Court requires that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Violations of Section 2 of the VRA can be established without showing discriminatory intent so long as plaintiffs show that the law has a discriminatory effect. Thornburg v. Gingles, 478 U.S. 30, 62 (1986).

    In the Texas case, while the Fifth Circuit found the Texas law had discriminatory impact, it nonetheless remanded to the lower court for a reevaluation of whether the law had discriminatory intent based on new criteria (the lower court had already found discriminatory intent after trial). Similarly, in Wisconsin, the district court initially held that the law violated both the Fourteenth Amendment and Section 2 of the VRA, but the Seventh Circuit reversed. Last week, on remand, the district court held that the state must allow voters who cannot obtain appropriate photo ID through reasonable efforts to cast a ballot with an affidavit. But in North Carolina, the Fourth Circuit however went much further, finding that the state legislature intended to discriminate against African American voters in violation of both the Fourteenth Amendment and Section 2 of the VRA. 

  • August 10, 2016
     
    Since discontinuing “Stop and Frisk” policies, which disproportionately target African and Latino Americans, New York City’s crime rate has decreased dramatically, reports Brentin Mock at City Lab.
     
    Adam Liptak at The New York Times cites a new study showing criminal defendants appearing in front of the Supreme Court are less likely to have expert counsel than any other type of defendant. 
     
    J. Lester Feder and Nikki Tsukamoto Kininmonth explain in a recent article on BuzzFeed how, even after a 2003 law allowed for individuals to change their legal gender, doctors in Japan are using an antiquated and oppositional diagnosis to help Transgender people.
     
    According to an article by Elizabeth Olson in The New York Times, the American Bar Association is considering an amendment to its model rules of professional conduct that would prohibit harassment and discrimination by practicing lawyers.  
  • August 9, 2016
    Guest Post

    by Michael Vargas, Associate at Rimon 

    No issue has commanded more attention in the past 12 months than economic justice, and given the historic, and growing, chasm between the global one-percent and the rest of world, it’s not hard to see why Americans are so focused on this issue. The solutions being proposed by progressive lawmakers and activists, however, seem to be stuck in the past.  To be sure, reviving the regulatory ideals of FDR’s New Deal and LBJ’s Great Society, would likely have a positive impact on economic inequality, but to truly achieve a just and inclusive economy, there needs to be a cultural shift in American business, a shift away from the profits-only mentality that brought about the Great Recession and toward an acknowledgement that businesses can and must be accountable to their communities and society. A top down, regulation-heavy solution can create the checks and oversight needed to police bad behavior, but regulation alone cannot create the cultural change that will bring about a just and inclusive economy that will stand the test of time.             

    Fortunately, activists within the business community have been hard at work creating a business entity that can do what regulation cannot. It is called the “benefit corporation,” and, although it has only been around for a short while, there is a large and growing community of social entrepreneurs and innovators who are using these companies to bring about precisely the kind of cultural shift progressives have been trying to achieve for more than a century. This post will introduce you to this revolutionary idea sweeping the business world, but we cannot bring about the kind of change we want without the support of other members of the progressive community. We need progressive lawyers, policy-makers and activists to support this movement as a necessary addition to the movement for re-regulation.

    How We Got Here            

    For almost a century, a debate has been raging within the field of corporate law over the proper purpose of the business enterprise. On the one side are those who argue that profit alone should be the sole motivator for business activities, a position that was most forcefully advocated by law and economics scholars in the 1970s. On the other are those who argue that profits must be balanced with a genuine concern for the needs of society, which we would today call “corporate social responsibility” or “CSR.” For decades the two sides in the debate jockeyed for prominence, until President Reagan tipped the balance in favor of law and economics. Reaganomics was the extension of these principles at the level of the national economy, and the business community largely took advantage of the opening to prioritize profits. Today there is little doubt that law and economics remains the dominant force in corporate law.               

  • August 9, 2016

    by Gail Deady, The Secular Society Women’s Rights Legal Fellow, ACLU of Virginia

    On Aug. 3, 2016, the U.S. Supreme Court granted an “emergency” stay to stop Gavin Grimm, a 17-year-old transgender boy from Gloucester, Va., from using the boys’ bathroom at his public high school.

    Gavin lives every aspect of his life as a boy. He has a deep voice and facial hair, and his state ID says he is a male. Gavin’s presence in the Gloucester High School’s restrooms – which have long, tall partitions surrounding the urinals and enclosing the toilets – poses no threat to other students’ privacy.

    Yet, the Gloucester County School Board in 2014 enacted a policy banning transgender students from using school restrooms that match their gender identity. Gavin is now the only boy at Gloucester High School who is required to use the restroom in the nurse’s office or a unisex single-user restroom instead of the boys’ restrooms.

    With help from the ACLU and ACLU of Virginia, Gavin bravely challenged the Board’s policy as constituting sex discrimination under the Equal Protection Clause of the 14th Amendment and Title IX of the Education Amendments of 1972, which prohibits all discrimination in educational activities on the basis of sex.

    Gavin’s case has received national attention due to the United States’ Statement of Interest in support of his Title IX claim, and interpreting one of Title IX’s implementing regulations, 34 CFR §106.33, which allows schools to segregate restrooms by sex, to require schools to allow transgender students to use restrooms that match their gender identity. In a landmark decision, the Fourth Circuit reversed the district court’s dismissal of Gavin’s Title IX claim and deferred to the DOE’s interpretation of §106.33 under Auer v. Robbins.

    On remand, the district court granted a limited injunction allowing only Gavin to use only the boys’ restrooms at GHS. It did not apply to anyone else, or affect any other school. It simply allowed Gavin to start his senior year of high school without the shame and stigma of being labeled as “other” every time he has to pee.

  • August 8, 2016

    by Beau Tremitiere, Co-Chair of Election RAVE Campaign, a nonpartisan initiative to increase electoral participation of law students and faculty; ACS Next Generation Leader; and Editor-in-Chief of the Northwestern University Law Review. 

    Voting rights advocates are rejoicing in the wake of recent rulings striking down restrictive voting laws in Wisconsin, Texas, North Dakota, Kansas and North Carolina. And rightfully so—even ignoring the invidious nature of such intentional and targeted discrimination, these and similar measures threaten to disenfranchise hundreds of thousands, if not millions, of voters. Such absurd and pointless restrictions have no place in our republican democracy: it is encouraging to see, finally, a forceful rejection of the flawed premise motivating the Supreme Court’s disastrous Shelby County v. Holder ruling in 2013. Unlike alleged voter fraud, voter suppression is real and rampant, and if the courts abdicate their duty to stand up for the underrepresented, pernicious state and local officials will seize the opportunity to keep them down. 

    Yet, at best, these victories address mere symptoms of deeper systemic problems, and at worst, they may prove hollow absent meaningful and concerted action. Voting rights on paper are worth little unless we the people, and especially those of us in the legal profession, ensure that they’re enforced before and on Election Day. Speedy and competent poll workers are needed to prevent long lines from deterring time-pressed voters, and diligent election monitors are needed to detect foul play and correct honest mistakes. Moreover, the obstacles to full and informed voter participation extend well beyond new voter ID laws, selective purges of registration rolls, and targeted poll closures. Even in the record-breaking 2008 election, well before many of today’s most egregious voting restrictions were put into place, nearly four out of 10 eligible voters—more than 80 million Americans—did not cast their ballots. During the 2014 midterms, turnout among voters under 44 years of age was less than 29 percent. There are myriad reasons for our embarrassingly low electoral participation, but the obvious and possibly most significant one is that we hold our elections in the middle of the week, when most Americans are either at work or in the classroom.