May 2016

  • May 18, 2016
    Guest Post

    by Christopher Wilds, Herbert and Nell Singer Social Justice Fellow, NAACP Legal Defense and Educational Fund

    Imagine being a Black student in a school district where, for decades, one school has almost never enrolled Black students and the predominantly Black school suffers from crumbling ceilings, decades old textbooks, bathrooms without stalls, and discriminatory discipline policies. Today, 62 years after the NAACP Legal Defense and Educational Fund, Inc. (LDF) litigated and won Brown v. Board of Education – the case that declared the doctrine of “separate, but equal” unconstitutional and heralded the end of legal segregation in this country – LDF remains enmeshed in the struggle to eradicate “apartheid schools” – the racially isolated “black schools” that are inferior to their counterpart “white schools” and undermine educational outcomes for far too many African-American children. While the legal victory in Brown has had a significant historical and societal impact, it did not completely eliminate the pervasive racial discrimination and educational inequalities faced by students of color.

    For students in far too many school districts across the nation ‒ including those in St. Martin Parish, Louisiana ‒ racially segregated schools are a fact of life. A report by the Center for Civil Rights Remedies at UCLA noted that the number of majority-minority schools (those with zero to 10 percent white enrollment) has more than tripled in enrollment in the past 25 years. And a report by the Government Accountability Office (GAO) released yesterday details the harms that flow from such racially and economically isolated schools: Specifically, the report found that schools that are isolated by poverty and race generally had fewer resources, more disciplinary actions, and poorer academic outcomes than other schools.

    Despite the pervasiveness of racially isolated schools, desegregation remains a significant challenge ‒ just as it was 62 years ago. The GAO report notes that that the Department of Justice is monitoring and enforcing about 178 open desegregation cases. LDF likewise oversees a docket of about 100 desegregation cases ‒ many of which have been open since the Brown era. LDF’s work in the Thomas v. School Board of St. Martin Parish desegregation case is a powerful example of how and why the contemporary effort to erase the vestiges of segregation in education remains critically important.

  • May 17, 2016

    by Jim Thompson

    A federal judge on Friday ordered Cleveland, Miss., to desegregate its middle and high schools, 62 years after the Supreme Court issued its landmark ruling in Brown v. Board of Education, reports Emma Brown at The Washington Post.

    At Talking Points Memo, Tierney Sneed comments on the Supreme Court’s unanimous, unsigned opinion on the high-profile contraceptive case Zubik v. Burwell, concluding, “The Supreme Court's non-decision to punt the issue reflects not just its intractability, exacerbated by the vacancy left by Justice Antonin Scalia’s death, but also hints of trouble to come when the case goes back down to lower courts.”

    Adam Liptak at The New York Times discusses a recent study that shows the Supreme Court disproportionately favors white men when appointing friends of the court.    

  • May 16, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center. Simon Lazarus helped draft an amici curiae brief in House of Representatives v. Burwell, filed by CAC on behalf of House Minority Leader Nancy Pelosi and other members of the Democratic Caucus, in support of the Administration.

    On Thursday afternoon, May 12, District of Columbia District Judge Rosemary Collyer ruled unconstitutional the Obama administration’s funding of “cost-sharing reduction” subsidies (CSRs) prescribed by Section 1402 of the Affordable Care Act (ACA), to complement the “premium assistance tax credits” prescribed by Section 1401, by assisting lower-income exchange subscribers to pay for medical services and products. According to an Avelere health study, at least 65 percent of all Obama enrollees are eligible for the subsidies, and 5.9 million people currently use them. The decision upheld a lawsuit filed in November 2014 by the House of Representatives, alleging that Congress had not enacted an appropriation covering the COS subsidies, and hence, the administration’s funding of them violated the constitutional command that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

    When then-Speaker John Boehner first proposed the lawsuit in July 2014, a broad consensus of experts warned, in the words of former House legal counsel (for Congresses controlled by both parties) Charles Tiefer, that “it is a bad idea for a Speaker to file such an embarrassing loser.” Nonpartisan experts like Tiefer knew, as he wrote in testimony submitted to the House Rules Committee considering Boehner’s resolution to file the case, that applicable Supreme Court precedents dictated “no standing . . . for anything remotely like” the House’s lawsuit.

    No good would be served here by restating the precedents that Judge Collyer chose to disregard or, as she put it, distinguish and limit. Briefs filed by the Department of Justice and allied amici have done that job, and will surely repeat when the case is appealed to the D.C. Circuit. But it is worth briefly spelling out the real-world consequences of Judge Collyer’s arguments purporting to distinguish pertinent standing doctrine, in light of the separation of powers policy considerations undergirding established congressional standing limitations.

    In sum, given the political dynamics of inter- and, especially with respect to Congress, intra-branch behavior patterns and incentives, displacing those precedents in accord with Judge Collyer’s decision will provide irresistible incentives – for one house of Congress or, more realistically, internal factions with political leverage – to trigger lawsuits over a virtually limitless array of inter-branch or partisan disputes previously resolved through political processes, formal and informal.

  • May 16, 2016
    Guest Post

    by Johanna Kalb, Jurisprudence Fellow, Brennan Center for Justice

    *This post also appears at Brennan Center for Justice and Demos

    In May, the University of Pennsylvania Law Review Online will publish a series of essays examining the role that political equality could play in the Supreme Court’s campaign finance jurisprudence.  The authors in this collection are helping to relaunch a conversation that has been stagnant for forty years. 

    Today’s constitutional framework for money in politics dates back to the Supreme Court’s decision in Buckley v. Valeo.  The Buckley Court was asked to evaluate the constitutionality of the Federal Election Campaign Act of 1974, an extensive package of reforms including limits on contributions and independent spending, disclosure requirements for political spending, and the creation of a system of public funding for presidential campaigns.  Defenders of the law argued that regulating political spending was necessary to prevent corruption and promote voter confidence, as well as to equalize the ability of interested citizens to influence electoral choices and run for office.  The Buckley Court agreed that preventing corruption or its appearance was a compelling government interest, which justified an incursion on First Amendment rights.  However, the Court flatly rejected any government interest in promoting political equality, stating that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. . . .”

    Buckley’s rejection of the equality interest was immediately and widely criticized.  As time passed, however, attention in political equality arguments quite understandably receded.  Instead reformers (and scholars) focused their energies on arguing for a broad understanding of the government’s interest in preventing corruption.  In the 1990s and early 2000s, this seemed like a winning strategy.  The Court upheld a variety of contribution limits, oftendescribing the government’s corruption interest broadly in terms of the dangers that wealth could pose to the integrity of the democratic process.  Then Roberts and Alito replaced O’Connor and Rehnquist, and the newly constituted Court began a concerted effort to dismantle the system of campaign finance regulation by narrowing the government’s interest in preventing corruption to the quid pro quo exchange of cash for votes.

    The Roberts Court’s aggressive attack on campaign finance regulation and the recent death of Justice Scalia have created an opening for rethinking the constitutional framework for money in politics.  Political equality is back on the table, bolstered in part by success of the Sanders presidential campaign and its focus on the relationship between economic and political inequality in America.  More than enthusiasm is needed, however, to move equality theory from the sidelines to the center of the constitutional doctrine.  As Rick Hasen has been saying for years (and most recently in his book, Plutocrats United), equality theory is replete with questions that have gone mostly unaddressed by scholars of campaign finance law.  We need to understand which form(s) of political equality justify regulation; equality of “inputs” into the political process – or equality of the “outputs” that process creates?  We need to have some way of thinking about how much equality is enough, in order to guide the Court in balancing the equality and liberty concerns raised by campaign finance regulation.  And, we need to have some idea of how the corporate media operates in this framework.

  • May 16, 2016

    by Jim Thompson

    Today, the Supreme Court vacated judgments in Zubik v. Burwell, instructing both parties involved to go back to the lower courts and make “tweaks in the contraceptive mandate to eliminate any faith-based concerns ‘while still ensuring that the affected women receive contraceptive coverage seamlessly,’” reports Sarah Ferris at The Hill.

    The Obama administration on Friday issued a directive telling every public school district to allow transgender students to use bathrooms that correspond with their gender identity, report Julie Hirschfeld and Matt Apuzzo at The New York Times.

    A federal district judge in Washington, D.C., ruled Thursday that the Obama administration had improperly funded a major subsidy of the Affordable Care Act, dealing a surprise blow to President Obama’s signature legislative achievement, writes Matt Ford in The Atlantic

    P.R. Lockhart at The American Prospect says a new Mississippi law that legalizes discrimination against LGBT individuals on religious grounds “could have sweeping implications well beyond the realm of gay marriage.”