October 2016

  • October 31, 2016
    Guest Post

    by Robert Smith, Director of the Fair Punishment Project at Harvard Law School and Amy Weber, Frequent Outside Counsel, Fair Punishment Project

    Today, the Supreme Court vacated five juvenile life-without-parole (JLWOP) sentences and remanded the respective cases back to the Arizona courts. These cases may provide guidance to state courts faced with determining whether the Eighth Amendment requires a sentencer to not only consider mitigating circumstances such as the age of the juvenile before imposing an LWOP sentence in light of Montgomery v. Louisiana, but also explicitly find that the juvenile’s crime illustrates his or her “irreparable corruption” or “permanent incorrigibility” before imposing a life-without-parole sentence. In these cases, the life without parole sentence was not mandated by statute. Rather, the sentencer in each case had the opportunity to consider mitigating evidence—including the juvenile’s age—before imposing the sentence. Therefore, today’s remands strongly suggest that mere consideration of mitigating evidence is insufficient. At the Fair Punishment Project, we released an issue brief last week that explains this issue in more depth and details how state courts have treated the question. Here is a quick summary:

    In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits the imposition of a mandatory life without parole sentence for a juvenile who commits a homicide offense (JLWOP is categorically barred for non-homicide offenses per Graham v. Florida). Miller held these mandatory sentences unconstitutional because the sentencer was unable to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

  • October 28, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.  Co-counsel for City of Miami in Bank of America v. City of Miami and Wells Fargo v. City of Miami

    On Tuesday, Nov. 8, the Supreme Court will hear oral arguments in two significant civil rights cases that raise the question of whether a city can sue to enforce the Fair Housing Act. Bank of America v. City of Miami and Wells Fargo v. City of Miami concern whether a city has standing to sue to challenge discriminatory lending practices of banks. The Court should follow well-established law in this area and allow these suits to go forward.

    The Fair Housing Act, adopted in 1968, not long after the death of Dr. Martin Luther King, Jr., broadly prohibits race discrimination in housing. As the Supreme Court noted just two years ago in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, that the law represents Congress’s response to economic and social forces that “left minority families concentrated in the center of the Nation’s cities,” where “residential segregation and unequal housing and economic conditions” resulted in “neighborhoods marked by substandard housing and general urban blight.” The Act declares the “policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”

    The Act makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race [...] or national origin.” It also forbids discrimination by “any person or other entity whose business includes engaging in residential real estate-related transactions […] in making available such a transaction, or in the terms or conditions of such a transaction, because of race […] or national origin.” Two years ago, in Texas Department of Housing and Community Affairs, the Court held that the Act prohibits practices that have a racially discriminatory impact.

  • October 27, 2016
    Guest Post

    by Sasha Samberg-Champion, Counsel at Relman, Dane & Colfax PLLC

    Fry v. Napoleon School District, a case to be argued in the Supreme Court next week, may well have the term’s most adorable plaintiff: E.F., a child with cerebral palsy and a big smile, usually pictured along with her service dog, “Wonder.” And although the question presented by her case is a seemingly technical one, it is of great importance for effective enforcement of the rights of children with disabilities, enforcement that has been impeded by a procedural obstacle that Congress never intended. The Court now seems poised to correct this error and permit children with disabilities to enforce their rights under the Americans with Disabilities Act and other civil rights laws at school, just as they may do anywhere else.

    At first blush, Fry seems to involve an unremarkable ADA claim: E.F. and her family are suing over her school’s refusal to permit her to use Wonder as a service dog. One might well wonder where the controversy is. Twenty-six years after the passage of the ADA, one of this country’s landmark laws, most of us correctly assume that those denied the rights guaranteed by the ADA can go to court to enforce them. If a library or park unlawfully bars your wheelchair or your service animal, you can sue.

    The problem is, a family that sues a school for violating the rights of a child with a disability often gets the same unpleasant surprise that awaited the Fry family. A court dismissed the family’s lawsuit, saying the family was required, before suing under the ADA, to pursue any administrative remedies available to it under a different law: the Individuals with Disabilities Education Act (“IDEA”), which governs what is commonly known as special education. Many courts impose this IDEA exhaustion requirement even where, as in Fry, the suit does not allege an IDEA violation and does not seek any of the specialized remedies available under the IDEA.

  • October 26, 2016
    Guest Post

    *Read more on this topic in the ACS Issue Brief: Redefining Employment for the Modern Economy

    by Brishen Rogers, Associate Professor of Law at Temple University Beasley School of Law

    The explosive growth of Uber and other on-demand labor platforms has brought public attention to a longstanding issue facing workers in this country: the fissuring of employment. Fissuring comes in many forms, including misclassification of employees as independent contractors, subcontracting and franchising arrangements.

    Such strategies can deprive workers of their rights under our employment laws, most of which define employment per the common law “right to control test.” That definition is narrow, failing to reflect the economic realities of modern work relationships. It is also notoriously difficult to apply in practice, which increases litigation costs and disempowers low-wage workers.

    This is not a small problem. Wage and Hour Administrator David Weil estimates that there are “over 29 million workers in just five industries affected …  including in the construction, hospitality, janitorial, personal care and home health care industries.”

    Unfortunately, some prominent reform proposals—such as to create a new legal category of worker that would slot between “employee” and “independent contractor,” with limited employment rights—would move us backwards rather than forwards. Ethically speaking, workers in fissured relationships are no less deserving of basic protections than standard employees. Creating a third category of worker would also make employment status litigation even more complicated and more expensive.

    In a new issue brief for ACS, I propose an omnibus employment status bill to address such challenges. The central reform would redefine employment under the core federal labor/employment statutes per the broad “suffer or permit” test from the federal Fair Labor Standards Act. In misclassification cases under that test, courts’ and agencies’ task is not to determine whether the putative employer enjoys a right to control the performance of the work, but rather “to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”

  • October 26, 2016

    by Katie O'Connor

    In these final two weeks of what has started to feel like the presidential election campaign version of Snowpiercer, we are all gearing up for a busy Nov. 8. Canvassers are undertaking GOTV efforts, station wagon and minivan drivers are volunteering to give rides, people are signing up for Election Protection and even the most casual of slacktivists are tweeting to remind their followers to check their polling places and voting hours. People are making plans to get to the polls, and many are volunteering their free time for other Election Day efforts. Election Day is exciting and our democracy is stronger when everyone wants to be a part of it.

    But zealous democratic participation has its limits. Your enthusiasm for your candidate or cause or for democracy itself has to be tempered by the right of other voters to vote without intimidation or coercion. Given the heated rhetoric about rigged elections and the persistent and forceful calls for election observers to go out and watch the polls, we should all take a minute to talk about where those limits are.

    Put simply, voter intimidation is a felony. Numerous federal laws prohibit voter intimidation by government officials and by private actors and in most states, those laws are reinforced by state laws prohibiting voter intimidation. There is no bright line to distinguish between legitimate poll watching activities and outright voter intimidation at the polls, but we know from past experience where poll watching starts to cross the line. First and foremost, poll watchers should do that and only that – watch. Directly confronting voters, especially in a threatening way, will often constitute voter intimidation. Writing down license plate numbers or taking pictures of voters as they arrive to or leave the polls will probably constitute voter intimidation. In many cases, the presence of law enforcement officials – or poll watchers who dress or say things in an attempt to mislead voters into believing they are law enforcement officials – can count as intimidation. And even if open carry laws allow firearms in a polling place, such open carry could still violate civil rights laws if it is intimidating.