Equality and Liberty

  • February 23, 2017
    Guest Post

    by Harper Jean Tobin, Director of Policy, National Center for Transgender Equality

    Gavin Grimm, a high school senior in Virginia, had to sit through two public school board meetings during his sophomore year while his neighbors openly discussed his body parts and restroom use while pointedly referring to him as a “young lady,” calling him a “freak,” or comparing him to someone who thinks he is a dog. Gavin is a transgender boy. He had used the boys’ restroom at school for weeks with the full support of his fellow students before those school board meetings, where the school district ultimately decided to bar him from the boys’ restroom. For the over two years since then, Gavin has had to make a “walk of shame” to the nurse’s office each time he needs to use the restroom, a daily reminder that his school thinks he isn’t worthy of being treated like his peers.

    There are hundreds of thousands of transgender students like Gavin in schools all across the country. K–12 schools, as well as colleges and universities, began developing policies over a decade ago to answer everyday questions about supporting transgender students. Today, over 40 percent of U.S. K­­–12 students attend schools with local policies or statewide laws or guidelines that clearly support transgender students’ rights to learn in a safe environment and be treated according to their gender identity, including when it comes to using facilities. 

    Enter Title IX. Starting in 1999, a growing number of federal courts began to rule that federal sex discrimination laws applied to discrimination against transgender people. The rulings relied on two major Supreme Court precedents: Price Waterhouse v. Hopkins (1989), which held that discrimination based on gender stereotypes violates Title VII of the 1964 Civil Rights Act; and Oncale v. Sundowner Offshore Services (1998), which stated that Title VII applies to any gender-based discrimination, not just specific scenarios Congress imagined in 1964. Eventually, five federal appeals courts and over a dozen district courts agreed that Title VII, Title IX, and other sex discrimination laws applied to anti-transgender bias, while only a handful disagreed.

  • February 10, 2017

    by Katie O’Connor

    Throughout his campaign and in the months since his election, President Trump has repeatedly pledged that his nominee to replace the late Justice Antonin Scalia on the Supreme Court will vote to overturn Roe v. Wade, the landmark 1973 Supreme Court case which guarantees the right to abortion. Always a fan of suspense, Trump released two lists of potential nominees before his election, and legal and advocacy organizations began compiling profiles on each of the names. But it was not until Feb. 1, 2017, that speculation regarding the potential nominee to fill Justice Scalia’s seat ended, and President Trump formally transmitted the nomination of Tenth Circuit Court of Appeals Judge Neil Gorsuch to the Senate for confirmation.

    Despite the president’s campaign pledges, we cannot know with certainty how Judge Gorsuch would rule if the Court were asked to overturn Roe v. Wade. What we do know, however, is the following.

    Judge Gorsuch is no champion of women’s access to contraception and reproductive healthcare more broadly. He joined the 2013 decision of the U.S. Court of Appeals for the Tenth Circuit in Hobby Lobby v. Sebelius, which found that Hobby Lobby, a for-profit corporation, can have a sincerely-held religious belief that certain contraceptive methods are actually abortifacients (though experts argue they are not) and that facilitating coverage of those methods would be a sin. Moreover, the decision ruled, Hobby Lobby’s religious beliefs would be substantially burdened by a provision under the Affordable Care Act (ACA) that requires the corporation to provide health insurance to its employees that includes coverage of those contraceptive methods. Finally, the decision reads, the requirement of such coverage is not narrowly tailored to further the government’s interest in “public health” and “gender equality.” While the government sought to provide comprehensive and seamless coverage of preventative health services to women and men alike, the Tenth Circuit, joined by Judge Gorsuch, essentially found that the religious beliefs of a for-profit corporation outweighed the corporation’s employees’ right to such coverage.

  • February 9, 2016
    Guest Post

    by Ekow N. Yankah, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    The core values of ACS, by my lights, can be captured in our commitment to both equality under the law and equality through the law. Indeed, many of our most progressive values do not require complex justification. They only require us to think truthfully about how we would structure the law when its weight is borne by those we care about the most. To that end, I hope to provoke real reflection on the way our drug policies are shaped by how much we care about those in the grip of addiction.

    Please read my op-ed in The New York Times, titled "When Addiction Has a White Face."


  • February 1, 2016
    Guest Post

    by Juan Perea, professor of law, Loyola University Chicago School of Law

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    Most contemporary historians conclude that the American Constitution is a proslavery document. When I speak with historians about teaching constitutional law, often they are shocked that law professors typically do not teach the Constitution as proslavery. I think the general failure to teach the Constitution as a proslavery document does a major disservice both to students and to society.

    So what do I mean when I label the Constitution “proslavery?” I mean that the Constitution protected slavery and promoted slave ownership. The Constitution’s text contains several proslavery clauses. The Apportionment Clause, Article I, Section 2, added three-fifths of “all other Persons” ‒ slaves ‒ to the number of free inhabitants of a state for purposes of representation. This clause, by boosting the number of representatives in Congress for the slave states, guaranteed political protection for slavery. The same three-fifths ratio boosted the representation of slave states in the Electoral College during presidential elections. The slave import limitation, Article I, Section 9, prohibited Congress from regulating the international slave trade until 1808, 21 years after ratification of the Constitution. Not only was Congress forbidden from regulating the transoceanic slave trade, but Article V of the Constitution explicitly forbids amending the slave import limitation, one of only two such forbidden matters in the whole document. Lastly, the Fugitive Slave Clause, Article IV, Section 2, guaranteed nationally, for the first time, the right of slave owners to pursue and reclaim their slaves anywhere throughout the land.

    The Constitution thus protected slavery by increasing political representation for slave owners and slave states; by limiting, stringently though temporarily, congressional power to regulate the international slave trade; and by protecting the rights of slave owners to recapture their escaped slaves. The Constitution also promoted slave ownership by promising increased political representation while keeping unregulated the flow of slaves through the international slave trade for 21 years. Pretty significant protections, don’t you think?

    At this point one might ask, didn’t Reconstruction abolish slavery and require equal protection of the laws? Yes, the Reconstruction amendments did accomplish these things. However, the formal abolition of slavery only changed the rules of play, not the game of white domination itself. Slave codes became black codes, which became Jim Crow laws, which became race-neutral laws with outsized, unfair disparate impacts on people of color. Formal equal protection has yielded, in the main, only ostensibly race-neutral laws with heavily disparate racial impacts.

  • December 31, 2015

    by Jeremy Leaming

    Our blog owes much to those who provide us intellectually inspiring and thought-provoking pieces throughout the year on myriad constitutional and legal policy concerns. And 2015 was no different. We have many to thank in the ACS network, such as Elise Boddie, Erwin Chemerinsky, Adam Winkler, Atiba Ellis, Ann Hodges, Charlotte Garden, Nkechi Taifa, Steve Sanders, and so many others. Until our website is refreshed – and that is an ACS goal – it can be daunting and likely frustrating to make it through 53 landing-pages worth of guest posts.

    So what follows is a sampling of guest posts, symposia and blog interviews from 2015. Enjoy, and thanks to all who took time to provide material for ACSblog, and to those who read.

    Fair House Acting under attack, and before a right-wing Supreme Court, see Professor Valerie Schneider’s Jan. 20 post.

    Rutgers law professor Elise C. Boddie on MLK’s “arc of the moral universe,” and the ongoing attacks on civil rights laws, such as the Voting Rights Act, and the Fair Housing Act. (And in the indispensable Give Us the Ballot, which The New York Times’ recognized as a 2015 notable, The Nation’s Ari Berman looks at the history behind the landmark Voting Rights Act of 1965 and the modern day efforts to crush gains from the law.)

    Another must-read of 2015, ACS President Caroline Fredrickson’s book, Under The Bus: How Working Women Are Being Run Over. In this post for ACSblog, Fredrickson delves into why she wrote the book, and its importance to any discussion of labor law and policy.

    National Women’ Law Center’s Kelli Garcia on the harmful effects of attacks on abortion rights, especially, and not surprisingly, for women in abject poverty.

    In our symposium on racial inequalities in the criminal justice system, the Equal Justice Initiative’s Jennifer Taylor examined the prevalent and pernicious racial discrimination of the jury selection system. Also in that symposium, The Sentencing Project’s Nazgol Ghandnoosh explored the three sources of racial discrimination in criminal sentencing.

    In our symposium on King v. Burwell, the 2015 high-profile legal challenge from the nation’s rabid right-wing to a significant provision of the Affordable Care Act, University of Chicago law school professor David Strauss explains how “wrong” that challenge was.

    University of Indiana law school professor Steve Sanders takes on Gov. Mike Pence’s anti-gay politics behind the defense of a so-called religious liberty law. Also see, UCI Law’s Erwin Chemerinsky on the same matter, in which he concludes, “Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else.”

    Open Society Foundation’s Nkechi Taifa on racial inequalities in the criminal justice system and some rare bipartisan concern.

    GW Law’s Alan B. Morrison on Judge Andrew Hanen’s wobbly, but troubling ruling against the Obama administration’s immigration reform efforts.

    One that The New York TimesAdam Liptak noted, a piece from Georgia State University College of Law professor Eric J. Segall on oral argument in Obergefell v. Hodges, the Supreme Court case that would, later in the summer, become a landmark equality victory. The Segall piece was part of ACSblog’s symposium on marriage equality. (Also see Chemerinsky’s thoughts on the case from the symposium.)

    Seattle law school professor Charlotte Garden takes a look at another Supreme Court case that challenges, again, longstanding labor rights of public sector teachers.  

    Racial inequalities throughout the nation remain, depressingly and fatally, dominant. WVU law school professor Atiba R. Ellis provided ACSblog numerous posts on those inequalities and why police murders that disproportionately target black men and women continue unabated, but are not being ignored – witness the work of Black Lives Matter. Ellis’s May 2015 post looks at the “Baltimore Uprising.”

    Richmond School of Law professor Ann C. Hodges on the right-wing attack on public sector labor rights in the case before the Supreme Court, Friedrichs v. Calif. Teachers Association. Also see Hodges’ ACS Issue Brief, released in late November, about Friedrichs.

    Georgetown law professor Lisa Heinzerling on the outcome of the statutory, separation of powers challenge to the health care reform law, and its impact on environmental regulations.

    In the ACSblog symposium regarding the 50th anniversary of the landmark civil rights law, the Voting Rights Act, UNC law school professor Gene Nichol looks at Chief Justice John Roberts’ out-of-touch and seriously harmful understanding of racial discrimination in voting. (Also see, WVU law professor Atiba Ellis’ piece, “Racial Majoritarian Tyranny and the Voting Rights Act of 1965.”)

    The Civil Rights Movement lost a leading figure with the death of Julian Bond. UNC law professor and civil rights leader Theodore M. Shaw provided a moving tribute.

    Kentucky county clerk Kim Davis refused to recognize marriage equality following the high court’s landmark opinion in Obergefell v. Hodges, making her an instant hero of right-wing politicians. Retired Montana Supreme Court Justice James C. Nelson, however, had a different take. For ACSblog he blasted Davis for flouting her duties to uphold constitutional principles, and for flaunting her bigotry.

    OSF’s Nkechi Taifa again provided commentary for ACSblog on the criminal justice system's continual reliance on lengthy prison sentences that disproportionately destroy black lives.

    For ACSblog’s 2015 Constitution Day Symposium, WVU law professor Atiba Ellis examined our nation’s failure to address persistent violence against black lives and communities and the constitutional failure to end that violence.

    In an interview with ACSblog, recent law school graduate Jarrett Adams discussed his arduous and very personal journey through a justice system that still disproportionately harms and destroys black lives.