• June 2, 2017
    Guest Post

    by LaJuana Davis, Professor of Law, Samford University Cumberland School of Law

    Four mothers of Mississippi schoolchildren filed a federal civil rights lawsuit last week charging the state has failed to provide for public education under the requirements of an 1870 law that set conditions of the state’s readmission to the Union following the Civil War. The suit’s plaintiffs, represented by the Southern Poverty Law Center (SPLC), have asked the court to void amendments to the state’s education article enacted after Reconstruction and restore education rights guaranteed under the 1868 constitution. Specifically, the suit claims that the state violated the Congressional Act of 1870 that conditioned Mississippi’s readmission to the Union on the state agreeing to never deprive its citizens of “school rights and privileges” secured by the 1868 state constitution. However, the complaint alleges, subsequent amendments to those school guarantees have resulted in a minimalist education clause that simply allows the legislature discretion to provide for whatever public school education that the legislature sees fit.

    The suit’s lead defendant, Mississippi Gov. Phil Bryant, responded in a statement that the suit was simply a fundraising attempt by SPLC “on the backs of Mississippi taxpayers.” While Gov. Bryant may be irritated by the second challenge to Mississippi’s education scheme brought by SPLC in a year, Mississippi has had far fewer education adequacy lawsuits than most states, largely due to the minimal standard of education that its state constitution requires.

    Because Mississippi’s education clause requires no particular standard of education to be provided, the plaintiffs claim that some schoolchildren are learning in overcrowded classes   taught by inexperienced teachers and that those children have access to fewer educational resources and opportunities than students in other school districts. Most of the inequalities are being shouldered by majority-Black school districts, which may be affecting their students’ academic achievement.

  • June 1, 2017
    Guest Post

    by Terri Gerstein, Leadership in Government Fellow, Open Society Foundations; Former Labor Bureau Chief, the Office of New York State Attorney General Eric Schneiderman.

    A sandwich maker in a shop that is part of a national chain. A cub reporter, fresh from college, reporting on news from local courthouses. A woman who travels all over the state to draw blood for insurance company medical exams. What did they have in common? All of them were subject to out-of-control non-compete agreements.

    Use of non-compete agreements is growing, with a recent report indicating that nearly one in five employees are currently subject to these constraints. These agreements restrict future employment, prohibiting an employee from taking a new job with a competitor of their current employer. Generally, they contain time and geographic limitations, preventing the employee from working for a competitor for, say, two years and within a 75-mile radius.  

    Historically, non-competes have been used in relation to high-level employees, with special skills or knowledge of confidential information or trade secrets. Think secret formula.

    But more and more rank-and-file workers are constrained by non-competes. Think no secret formula, no highly-classified customer list, no special skills at all. Workers agree to this for a simple reason: they need a job. The expanding use of non-competes constrains workers’ job mobility and ability to improve their lives; it also thwarts workers’ ability to bargain for better wages or conditions. If the boss knows you cannot go anywhere else, there is no need to give you a raise.

  • June 1, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    **This post is based on written testimony for a 5/15/17 California State Senate hearing on SB 185.

    by Karin D. Martin, PhD, Assistant Professor of Public Management, John Jay College of Criminal Justice & The Graduate Center, City University of New York

    Monetary penalties—fines, fees, surcharges, restitution and any other financial liability from contact with the criminal justice system—are a ubiquitous and growing feature of punishment in the U.S. On the one hand, these sanctions have the potential to achieve the aims of punishment with far fewer economic and social costs than incarceration. On the other hand, monetary sanctions produce disproportionate harm—particularly among those least able to pay—at the same time that they create a perverse incentive for courts, municipalities and other entities that can both create and collect monetary sanctions.

    How these sanctions are enforced can be quite particularly problematic. Jurisdictions do everything from entering civil judgments to revoking or extending probation/parole or incarcerating people for non-payment. Unpaid debt also subjects people to regular court summons, the issuance of warrants and pursuit by private collection agencies. Many jurisdictions also do something that too often directly undermines people’s ability to pay their court-ordered debt: suspend driver’s licenses.

  • May 31, 2017

    by Dan Froomkin and Caroline Fredrickson

    As the reported connections between Jared Kushner and the Russian government become more suspicious -- and the possibility that he simply forgot to report those contacts on his security clearance application becomes more remote -- calls are mounting for Kushner's access to the U.S.'s top secrets be suspended.

    But who would do that? The granting and revocation of security clearances is the exclusive prerogative of the executive branch, currently headed by Kushner's father-in-law.

    So is there anything at all the legislative or judicial branches can do to overrule him?

    Do any of the executive-branch entities with control over security clearances have enough quasi-independence to defy the commander in chief's wishes?

    Essentially, no. When it comes to security clearances, there is no legal check on a president's power at all. The legislative and judicial branches have no role -- other than possibly creating political pressure to act.

    It turns out that many executive-branch powers that most people until recently considered unlikely to be abused are now looking awfully unilateral in the context of a Trump presidency. Control over security clearances is certainly one.

    "That is understood to be purely an executive function," said Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists in Washington and writes the Secrecy News blog.

  • May 31, 2017

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Katie O’Connor

    In a couple of critical ways, this decade has seen a recommitment and expansion of access to reproductive health care for all Americans. To start off the decade, in early 2010, President Obama signed the Affordable Care Act, drastically reducing the number of Americans without health insurance. Between 2013 and 2015, the proportion of 15-44 year old women who were uninsured in the country fell by 36 percent, largely as a result of the ACA’s Medicaid expansion and subsidized private coverage. Moreover, the ACA guaranteed full coverage of all FDA-approved contraceptives for women. All told, millions of women who might have struggled in the past to afford contraception (and other reproductive health care), or who might have gone without, now have access as long as the protections of the ACA remain in place.

    While the ACA put access to contraception and other reproductive health services within reach for many Americans, it failed to guarantee coverage for abortion and allowed states to ban abortion coverage in their ACA marketplace plans. Nevertheless, reproductive rights advocates found reason to celebrate a victory for the right to abortion in 2016. That year, in Whole Woman’s Health v. Hellerstedt, the Supreme Court forcefully reaffirmed the constitutional right to abortion and added teeth to the “undue burden” standard that was adopted two and a half decades ago. The case challenged two parts of Texas’s House Bill 2 – the “admitting privileges requirement,” which required abortion providers in the state to have admitting privileges at a nearby hospital, and the “surgical-center requirement,” which required abortion clinics to meet expensive and often unnecessary standards as ambulatory surgical centers. The two requirements, if allowed to go into full effect, would have forced over 75 percent of the state’s abortion facilities to close. In overturning the Fifth Circuit’s opinion upholding both provisions, the Court reiterated the undue burden standard from Planned Parenthood v. Casey and clarified that the standard requires a balancing of burdens and benefits. In assessing challenges to restrictions on abortion, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Moreover, the Court rejected the notion that “legislatures, and not courts, must resolve questions of medical uncertainty” and made clear that courts should consider evidence of a restriction’s medical benefits presented during judicial proceedings in addition to legislative findings, if any, in determining the restriction’s constitutionality. Whole Woman’s Health built upon existing precedent, reinforced the constitutional right to abortion and provided further guidance for courts considering restrictions on the right. In doing so, the Court dealt a blow to sham abortion restrictions that purport to make abortion safer but really just make it less accessible.