Animus and the Constitution at Stetson Law

The concept of unconstitutional animus is, of course, on many people’s minds as the Supreme Court continues to mull over the legality of President Trump’s travel ban executive order. A few weeks ago, Stetson University College of Law was home to a day-long discussion of the concept of animus, centered on Bill Araiza's (Brooklyn Law School) 2017 book, Animus: A Short Introduction to Bias in the Law (NYU Press 2017). Links to the webcast of the morning and afternoon sessions are available for free, courtesy of Stetson.

The conference, held on April 20 at Stetson, started with a panel that discussed the general concept of animus and its workability.  That panel was composed of Dan Conkle (Indiana-Bloomington), Katie Eyer, (Rutgers-Camden), and Susannah Pollvogt (Arkansas). The discussion was spirited, as the panelists had very different views about the usefulness of the animus concept in modern equality law. Those views ranged from enthusiastic support, to a suggestion that courts focus more on renewing traditional and well-established equal protection doctrines, such as tiered scrutiny/suspect class analysis, to a concern that the animus concept serves to distract social justice litigators whose best litigation option is often straightforward rational basis review.

The second panel focused more heavily on animus in the context of the Constitution’s religion clauses. That panel was composed of Corey Brettschneider (Brown/Political Science), Christopher Lund (Wayne State), Micah Schwartzman (Virginia), and Nelson Tebbe (Cornell). The discussion on this panel turned on the very difficult questions of mixed motives and the role of religiously-motivated action in animus analysis. Defining animus in the context of religious thought presents a vexing problem—in particular, within a religious/philosophical system that sincerely holds certain beliefs about conduct and moral absolutes. The panelists also spoke about an issue that was a major subject of the oral argument on the travel ban case—when, and under what conditions, a taint of animus can be cleansed by a subsequent governmental assertion of neutral, legitimate goals.

Professor Araiza himself was up next, as he gave the keynote address over lunch. His speech called for, in his words, “calling things what they are”—that is, explicitly using the term animus when that is a fair characterization of the action under review. He cautioned that animus should not become an all-purpose label applied to any action that is alleged to violate equality principles, whether they’re found in the Equal Protection Clause, the religion clauses, or elsewhere. But, he concluded, animus can play a useful role in twenty-first century American constitutional law, as a limited doctrine that constitutes part but only part of the constellation of doctrines governing equality claims, especially in light of the resurgent xenophobia and cultural conflict that has engulfed the nation. He also suggested that a carefully-crafted animus doctrine can hearken back to the idea of “class legislation” that played such a critical role in nineteenth century judicial thinking about equality, both before and after 1868. By hearkening back to that older thinking, Professor Araiza suggested that animus doctrine serve an additional purpose in connecting modern equal protection doctrine to its historical antecedents.

A final panel considered animus from a diverse set of perspectives. This panel was comprised of Jessica Clarke (Minnesota), Osamudia James (Miami), Steve Sanders (Indiana-Bloomington), and John Tehranian (Southwestern). This panel considered the role animus plays in doctrines as disparate as employment law, racial equality, and LGBT rights. The discussion revealed the many ways that animus, broadly conceived, can play a constructive role in legal doctrine. For example, Professor Clarke explained how the “stray remarks” doctrine in employment law reflects a judicial unwillingness to confront explicit workplace statements of animus as relevant to a plaintiff’s employment discrimination claim.

Animus is clearly a central concern for progressives worried about recent turns in American politics and law. Thinking carefully about what constitutional doctrine of animus should look like should be high on the agenda. I’m glad my law school was able to host a conversation that played an important role in furthering that process.

All California Companies Should Mind Their ABCs in Classifying Workers

Last week, the California Supreme Court issued a unanimous 82-page decision in Dynamex Operations West, Inc. v. Superior Court  that settled a question of law that had not been previously decided: what is the proper legal standard in determining whether a worker is an employee or an independent contractor under California’s wage and hour laws.

Joining 14 other jurisdictions, the California Supreme Court adopted the ABC standard to determine the worker’s classification under the “suffer or permit” language of California’s wage and hour regulations, called wage orders. A worker is presumed to be an employee unless the company can establish that (a) the worker is free from control and direction over performance of the work, both under the contract and in fact; and (b) the work provided is outside the usual course of business for which the work is performed; and (c) the worker is customarily engaged in an independently established trade, occupation or business. Failure to prove any one of these factors will be fatal to being classified as an independent contractor.

As the Court acknowledges, the proper classification of workers not only has significance for the workers and business but also for the public at large. When a company classifies a worker as an independent contractor, it does not have to pay federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, provide worker’s compensation insurance, nor comply with numerous state and federal laws such as minimum wage and overtime. Of course, this results in tremendous cost savings for the business.

However, there is a compelling public interest in having workers classified as employees.  Workers depend on their wages for their survival. By the turn of the nineteenth century, rapid industrialization, the influx of new immigrants and the shift to factory production resulted in exploitative working conditions and substandard wages. A national movement emerged advocating for national and state legislation redefining the traditional master-servant relationship, limiting hours of work and setting a living wage. California was at the forefront in adopting this worker-protective legislation, recognizing the unequal bargaining power between workers and companies.

Today, with globalization and technological innovation, we are experiencing another restructuring of the workplace. The advent and rapid rise of the gig economy – the use of technology to deliver goods or services on demand – has increased the ranks of the contingent workforce. An Intuit 2020 report authored by Emergency Research in partnership with Intuit Inc., predicts that close to 40 percent of American workers will be contingent workers by 2020. But not everyone in the gig economy is properly classified as an independent contractor or freelancer. Many on-demand labor platforms, such as Uber and Postmates, have been sued recently for misclassifying its workers.

The misclassification of workers is costly to almost everyone. Workers are denied access to fundamental basic labor protections such as minimum wage and overtime which results in increased reliance on the public safety net. The state of California estimates that it loses $7 billion per year in payroll tax revenue. Businesses who properly classify their workers and comply with statutory wage protections are disadvantaged by companies who improperly classify workers as independent contractors and pocket the labor costs.

The Dynamex decision creates a simpler, clearer test that is consistent with the expansive statutory definition of “employ.” Since 1989, a multi-factor test that arose in the context of a workers compensation case in the California Supreme Court case S.G. Borello & Sons, Inc. v. Department of Industrial Relations, guided the determination of employee status. But these factors were unwieldy and easily manipulated by employers to skirt employee status.  As the California Supreme Court acknowledged, “The ABC test allows courts to look beyond labels and evaluate whether workers are truly engaged in a separate business or whether the business is being used by the employer to evade wage, tax, and other obligations.”

No doubt the ABC test makes it easier for workers to prevail because it puts the burden squarely on employers to defeat the presumption of employee status.  But, the ABC test is not a radical departure in the law. Each of the ABC factors were already factors under the multi-factor test, but now are given substantial weight. Ultimately, the streamlining of the independent contractor test in wage and hour will reduce the uncertainty about whether the classification is legal.

The decision has huge ramifications for all California employers. A 2017 report from the U.C. Berkeley Center for Labor Research and Education found that the independent contractor model has proliferated and comprises 8.5 percent of the California workforce, a higher portion than the national workforce. No doubt, on-line labor platform companies will need to revamp their worker classifications in light of this case but it is not the death knell of the gig economy. As the 2017 report showed, on-demand labor platforms made up a cumulative 1.5 percent of the national workforce from 2012-2016. What this decision does is squarely reject the idea that flexible hours and the ability work from anywhere makes one an independent contractor.

Rod Rosenstein’s client is not the president. It is the people.

The assault on Deputy Attorney General Rod Rosenstein should alarm all of us. In an opinion piece yesterday, Rich Lowry calls for Rosenstein’s firing. Rod Rosenstein Jumps the Shark, May 2, 2018.

Rosenstein has been an admirable defender of the rule of law as President Trump has tried to turn the Department of Justice into his personal law firm.

Because of the recusal of Attorney General Jeff Sessions, Rosenstein has been serving as the acting Attorney General for the Russia probe. Rosenstein appointed Robert Mueller special counsel and continues to supervise his investigation into links between Russia and the Trump campaign to interfere in the presidential election.

Lowry cites the recently leaked questions that the special counsel wants to ask Trump as evidence that the investigation has “spun out of control” on Rosenstein’s watch. This leak seems to be part of a carefully orchestrated attack by Trump’s team to undermine public confidence in the investigation. We have now learned that it was Trump attorney Jay Sekulow who wrote the questions, based on topics shared with the Trump team by the special counsel.

It seems highly likely that it was the Trump camp and not the Mueller team that leaked these questions. Not only is it against Mueller’s tight-lipped nature, but it is also against his interest to make these questions public because it could alert other witnesses to areas of inquiry. And if it was Sekulow who wrote them, Mueller’s team would not have had them to leak in any event.

Instead, it was likely a member of Trump’s own team who leaked the questions as part of a strategy to sow doubts about Mueller. Trump’s tweets the next day about the questions support this theory. In one tweet, Trump said (inaccurately): “No questions on Collusion. Oh, I see...you have a made up, phony crime, Collusion, that never existed, and an investigation begun with illegally leaked classified information. Nice!” In another tweet, Trump said, “It would seem very hard to obstruct justice for a crime that never happened! Witch Hunt!” In fact, obstruction of justice is itself a crime, and one that can be committed even if the underlying crime cannot be proved, and even if the obstruction was only attempted.

Lowry’s suggestion that the president cannot obstruct justice is legally indefensible. While the president has the authority to see that the laws are faithfully executed, he cannot do so corruptly. In fact, the draft articles of impeachment against President Richard Nixon and the impeachment articles against President Bill Clinton included charges of obstruction of justice.

And because corrupt purpose is an element of obstruction of justice, Mueller must probe Trump’s state of mind. Mueller will need to understand Trump’s knowledge and intent as he engaged in certain conduct, such as firing FBI Director James Comey or asking Comey to let the investigation into Flynn go. Contrary to Lowry’s argument that such an inquiry is “sweeping and intrusive,” it is necessary to proving an essential element of the offense. If Trump is innocent of all charges, his best chance to tell his side of the story is in an interview with Mueller, which Lowry says Rosenstein should forbid.

As Lowry notes, it is ultimately Rosenstein who is responsible for the investigation. We should be grateful that we have someone with the backbone to stand up to a president who wants a Department or Justice that protects him. Instead, Rosenstein is fulfilling his oath to support and defend the Constitution.

The client is not the president. It is the people.

What We Learned From Gina Haspel

At Wednesday’s hearing before the Senate Intelligence Committee considering her nomination to be CIA Director, Gina Haspel talked a lot about “leadership lessons” – lessons not only reflecting the knowledge and experience she plainly has, but presumably the deeper insights and judgment one gains after trying and failing, as we all inevitably do, to do the right thing at the critical time. The great disappointment of Haspel’s testimony was in how evident it became that she seems to have learned the wrong ones.

Even before the Wednesday hearing, Haspel’s nomination was opposed by scores of retired military leaders, and an equal number of America’s ambassadors and diplomats; there are likewise many individuals in our intelligence community who cite the same reasons as Haspel’s opponents for thinking America should never go down the torture road again. Our torture program violated the law, endangered our troops, empowered terrorist recruiters, imperiled essential counterterrorism cooperation with our most stalwart allies, did lasting physical and psychological harm both to the prisoners we tortured and the men and women we demanded torture them, and compromised our most basic values as a country. As John McCain put it back it 2005: “"It's not about who they are. It's about who we are." These lessons were hard won indeed.

But Haspel declined repeatedly on Wednesday to condemn torture; to make clear she would refuse a presidential order to torture; to take responsibility for her own part in the program’s past or her own role in the destruction of video evidence of the program (videos she testified she never herself watched); to indicate that she thought, by 2007 or even now, that the program should have come to an end; or in any other way to acknowledge that the torture program was not the right thing for America to do. To the extent she offered Congress reassurance of any kind that she would stand against a return to policies past, it was a commitment that “under my leadership, CIA will not restart such a detention and interrogation program.” This is careful language, and woefully limited. For as became apparent during the hearing, the reason why Haspel has been willing to offer this much is because she thought the program was the wrong thing for the CIA to do – because, as she explained, the CIA lacked any relevant knowledge or experience in detention or interrogation at the time the program was created, and because she witnessed the steep price CIA agents involved in the program paid for their participation.

That the CIA had no experience in running a detention and interrogation program after the attacks of 2001 can hardly be doubted.  Of course the CIA by then had a long (unattractive) history of training others in the brutal treatment of prisoners in decades past. But Haspel’s account yesterday echoes many other post-9/11 analyses of what the CIA had, by 2001, become. Neither she nor others there had relevant knowledge (much less insight) of their own about what such a program should involve. Of course, for many workers in many industries – from commercial airline pilots or mechanics to doctors or lawyers – being asked by a superior to take on a task one knows one is manifestly unqualified and unprepared to do might prompt a quite different response. For it is not as though the U.S. government as a whole lacked all experience with interrogation and detention on September 11, 2001. Quite the contrary.  The CIA (and, in Thailand, though the details remain purposefully obscure, even Haspel herself) had to work actively to kick those who did have expertise (like FBI agent Ali Soufan) out of the interrogation booth. This is not stepping up, or leaning in. This is knowingly flying a plane or issuing a prescription without a license. The alternative view – that Haspel didn’t know what she didn’t know – is perhaps worse. For what is it that she doesn’t know she doesn’t know today?

As for the price CIA agents paid for their involvement in the program, there is likewise little reason to doubt that some paid something. While no fulltime CIA employee has faced any criminal punishment for any prisoner mistreatment – not for the men in whose deaths CIA is implicated, not for the man threatened with a power drill, not for the men locked in coffins or the prisoners left in their own excrement, not for the men subjected repeatedly to mock execution by drowning – jail time is not the only kind of price there is. There are administrative and professional sanctions, what can be the crushing expense of paying for legal representation when faced with even the prospect of liability, and emotional and psychological burdens that can be debilitating of themselves.

Yet while Haspel was clear in her testimony that she does not want to expose her own CIA colleagues to such harm again, she did not for a moment on Wednesday object – and it appears, never has – to the prospect that more expert or simply other agents acting in the name of the United States could well take such a project on, to whatever extent the law could be twisted to permit.  She gave no indication she would take any steps to speak up or against the reintroduction of a torture program should some other U.S. agency undertake it. But the record is clear she would speak and act repeatedly to ensure that the video evidence documenting the CIA’s own role in such a program would never see the light of day. She learned the lesson that torture is damaging to people in the CIA. Not that it is damaging to America. Much less to the victims who suffer from it most. It is not clear what one might best call the lessons Haspel has learned from her deep experience in the CIA. But what they cannot reasonably be called are lessons in “leadership.”

States are Favoring School Choice at a Steep Cost to Public Education

*This piece was originally published on The Conversation. 

Teacher strikes are generating a healthy focus on how far public education funding has fallen over the past decade. The full explanation, however, goes beyond basic funding cuts. It involves systematic advantages in terms of funding, students and teachers for charter schools and voucher programs as compared to traditional public schools. Increasing public teacher salaries may end the current protests, but speaking as an expert in education law and policy, I believe it won’t touch the new normal in which public education is no longer many states’ first priority.

My forthcoming research shows that, from funding and management practices to teacher and student policies, states are giving charter schools and private schools a better deal than public schools. These better deals have fueled enormous growth in charter schools and voucher programsthat is now nearly impossible to unwind.

The most basic shift occurred between 2008 and 2012. Florida and North Carolina illustrate the nationwide trend. Each cut public education funding by 20 percent or more in three years. During the same period, North Carolina lifted its cap on new charter schools and quickly doubledits charter school spending. Florida similarly changed the rules for its voucher program and quadrupled its size.

Favorable funding practices

States also passed laws to offer charters and private schools more money for each student they took. Florida increased the value of each voucher by roughly US$2,000. Nevada went even further, passing legislation that would convert every single public education dollar into a voucher dollar. While the state Supreme Court later declared the program unconstitutional, it has not stopped other states like Arizona from pursuing similar programs.

Several states also began lifting income eligibility limits. Previously, states had provided vouchers only for low-income students. But new voucher programs made them available to wealthy students as well, even those who already had access to excellent public schools.

Charter schools benefited from similar advantages in some states. Ohio and New Jersey funneled charter school funding through school districts, but the states’ antiquated funding formulas and charter reimbursement rates force districts to send charter schools more per pupil than they receive from the state.

Pennsylvania has a similar scheme, but it has proven so lopsided that it expanded deficits in Philadelphia and nearly bankrupted the Chester School District. Chester was paying the local charter school roughly $40,000 per special education student, including for those students with relatively low-cost needs. Arizona took a simpler route. It shielded charter schools from the budget cuts it was imposing on traditional public schools.

Less oversight

Once they receive the money, charter schools and private schools receiving vouchers can spend it almost any way they want. Private schools operate just as they had before. And charter schools – though technically public schools – are exempt from typical financial oversight.

Laws require public schools to award contracts through a transparent process and prohibit public schools from entering contracts that pose conflicts of interest. Charters can award contracts to almost anyone they like – and on any terms they like. This includes awarding contracts to companies that have close financial ties with the charter. A person can start a purportedly nonprofit charter school and then have that charter purchase all of its services and supplies from a company owned by that same person. As a result, the person can turn a profit on staffing, facilities, technology and supplies. National Heritage Academies runs this exact type of business model in North Carolina and continues to grow its campuses.

The same activity could constitute fraud or criminality in a public school. Yet, state law permits it for charters. As Thomas Kelley’s analysis reveals, many of the charter schools that state law calls nonprofits would not qualify for that same label under federal law.

No checks on profiteering

Even well-meaning charter schools have been unable to stop this profit-taking. The Ohio Supreme Court, for instance, found that state law dictates that everything a private charter school company purchases with public dollars – from desks to computers – belongs to the private company, not the public. The same is true of buildings that charter schools lease. Charter school operators reap their largest profits through unreasonably high lease payments on buildings that the public will never own.

States also allow private schools and charters to treat students differently. While public schools must provide disadvantaged students with a host of special services, private schools take vouchers with almost no strings attached. And they are increasingly taking high-achieving middle-income and nondisabled students who cost less to educate and typically do not demand specialized services.

Charter schools’ advantages come in their ability to recruit students and cap enrollment. Public schools must serve everyone in their community. The clearest proof that charters don’t is in the data. For instance, Newark charter schools enroll less than half the percentage of special education students and English language learners as the Newark public schools. Newark charters also enroll significantly fewer low-income students. In North Carolina, charter schools are increasingly enrolling white students, while public schools increasingly enroll students of color. In Minneapolis, 80 percent of charters are racially isolated by race, socioeconomic status or both.

The most obvious advantage, however, is with teachers. Most states exempt charter schools from teacher certification requirements. Half exempt charters from complying with high-stakes teacher evaluation systems. More than three-quarters exempt charters from the teacher salary and collective bargaining rules. In short, states permit charters to hire teachers that would be deemed unqualified in a public school and pay them less.

The need for a structural shift

The current debate over school funding must move beyond teacher salaries and whether the books in public schools are tattered. Those conversations ignore the systematic policies that disadvantage public schools. Increasing public school teachers’ salaries alone won’t fix the problem. The public school teaching force has already shrunk. Class sizes have already risen. And the rules that advantage charter and private schools remain firmly in place.

Long-term solutions require a reexamination of these preferences. As a state constitutional matter, the law requires that states make public education their first priority. It is not enough to make education one of several competing priorities. And as a practical matter, states cannot continue to ask public schools to work with whatever is left over and then criticize them for doing a poor job. This cycle creates a circular justification for dismantling public education when states should be repairing it.

Rank Hypocrisy

The Senate majority is rushing to fill the courts with unqualified and highly ideological nominees, and destroying long observed bipartisan norms along the way. We have the Senate Majority Leader Mitch McConnell announcing that he will continue to rush these nominees through as long as he possibly can regardless of anyone’s concerns or election outcome. This is the same man who declared his greatest moment was the day that he told President Obama he refused to give any consideration to a U.S. Supreme Court nominee, denying a hearing for 11 months arguing that the people should have a say. Rank hypocrisy doesn’t even cover it.

In the march to consolidate its power, the Senate majority has snubbed the role of home state senators on federal appeals court nominations. By refusing to honor the role of home state senators, the majority has eliminated the last check the Senate has on the White House. The majority has stacked hearings with multiple nominees so there is less time to question them and disregarded the role and importance of White House consultation to reach consensus. Lawmakers have scaled back standards for vetting nominees who, if confirmed, would be responsible for deciding cases incredibly important to all Americans.

This week, the Senate majority promises more evidence of this assault. Senate Majority Leader McConnell has called for votes for six U.S. Circuit Courts of Appeals nominees in the same week. The Senate Judiciary Committee Chair has scheduled a confirmation hearing for a nominee who lacks support from both of his home state senators. These lifetime appointments have a say on every issue we care about. By relinquishing its last check on the President, the majority is seizing the power to transform the courts to achieve a conservative agenda it cannot do legislatively.