Guest Post

  • March 12, 2018
    Guest Post

    by the Honorable Lynn Adelman, district judge in the United States District Court, Eastern District of Wisconsin

    *This piece was originally published in the Winter 2018 issue of Dissent Magazine

    On November 4, 1995, Leandro Andrade walked into a K-Mart in Ontario, California, and attempted to shoplift five children’s videotapes. He was caught by a security guard and promptly arrested. Two weeks later, he walked into another K-Mart in nearby Montclair and tried to steal four more videotapes. Again, he was caught and arrested on the spot. This time, he was tried and convicted in a California state court of two counts of petty theft with a prior conviction. His sentence for stealing $153 worth of VHS tapes? Fifty years in prison.

  • March 9, 2018
    Guest Post

    by Katie Eyer, Associate Professor at Rutgers Law School

    * A separate blog post by Professor Eyer on this case addresses the Sixth Circuit’s analysis of the sex discrimination claims raised by the Plaintiff, and is available here.

    Since the Supreme Court’s decision in Hobby Lobby—extending the protections of the Religious Freedom Restoration Act (RFRA) to for-profit entities—the specter of possible RFRA defenses to federal anti-discrimination claims has loomed large. In the recently decided EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit takes the Supreme Court at its word in Hobby Lobby that such defenses will not succeed—that the government has compelling and narrowly tailored interests in eradicating employment discrimination. As importantly, it reins in several broader trends towards expanding RFRA far beyond the bounds of pre-Smith free exercise law—trends that might otherwise threaten to turn RFRA into an essentially automatic exemption from generally applicable federal laws.

  • March 9, 2018
    Guest Post

    by Katie Eyer, Associate Professor at Rutgers Law School

    *Professor Eyer’s Issue Brief on this subject, Sex Discrimination Law and LGBT Equality is available on the ACS websiteA separate blog post by Professor Eyer addresses the Sixth Circuit’s analysis of the RFRA defense raised by the employer in this case, and is available here.

    Almost 15 years ago, the Sixth Circuit became the first Circuit Court in the country to find that discrimination against a transgender employee was sex discrimination in violation of Title VII. In remarkably straightforward reasoning for its time, the Court observed that:

  • March 8, 2018
    Guest Post

    by Emily Berman, assistant professor, University of Houston Law Center

    Each day, it seems, another personnel-related headline emerges from the West Wing of the White House. As a result, the events of just a few days past often feel like ancient history. But rather than succumb to the 24-hour news cycle, it behooves us to pause and consider more closely White House Chief of Staff General John Kelly’s recent intervention regarding security clearances for White House staff and the circumstances that precipitated it. 

    In addition to making reforms to the clearance process, the memo terminated interim high-level clearances for anyone whose application had been pending since June 2017. While it is not unusual for senior White House staff to have interim clearance at the outset of an administration, hundreds of staffers in November and dozens as late as February still were cleared only on an interim basis. This list included the President’s Senior Advisor and son-in-law, Jared Kushner—despite which fact he enjoyed regular access to America’s most sensitive secrets, including the President’s daily intelligence briefing.  (Recognizing that Kushner is likely ineligible for a permanent clearance—Kelly ultimately downgraded his interim clearance level.) Given that the clearance process usually takes about 8-10 weeks, providing access to the PDB to staff whose clearance applications are pending after 13 months in office is both unusual and alarming. 

  • March 6, 2018
    Guest Post

    by Cynthia Soohoo, co-director, Human Rights and Gender Justice Clinic at CUNY School of Law and Risa E. Kaufman, Director of U.S. Human Rights, Center for Reproductive Rights

    How far can a state go in restricting a woman’s constitutional rights under the guise of protecting a fetus? The Seventh Circuit will soon have the opportunity to answer this question when it issues its much-anticipated decision in Loertscher v. Anderson. The case challenges a Wisconsin law that allows child protective services to take a pregnant woman into custody to protect her “unborn child,” from “the time of fertilization to the time of birth,” based on concern that the woman’s purported use of alcohol or controlled substances poses a “substantial risk” to the physical health of her “unborn child.”

    Wisconsin’s law is unique in that it places a woman in the custody of child protective services. However, several other states allow or promote use of civil commitment laws to detain pregnant women. Civil statutes that detain pregnant women to prevent future substance use and force them to undergo drug treatment raise serious constitutional issues related to a woman’s right to liberty, privacy, personal autonomy, and non-discrimination.

    As we argue in a new ACS Issue Brief, they also violate core human rights principles.