Published: Sat, 25 Mar 2017 00:00:00 -0400
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Fri, 17 Mar 2017 13:30:00 -0400In his Commentaries on the Laws of England, William Blackstone declared, "It is better that ten guilty persons escape, than that one innocent suffer." In an 1785 letter, Benjamin Franklin was even more exacting: "That it is better 100 guilty Persons should escape, than that one innocent Person should suffer, is a Maxim that has been long and generally approv'd, never that I know of controverted." In 2011, the U.S. Department of Education took a different position. That was the year the department's Office of Civil Rights sent a "dear colleague" letter reinterpreting Title IX of the Education Amendments Act of 1972. That section reads: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." The OCR's letter declared that sexual assault is "a form of sex discrimination prohibited by Title IX." (Sexual violence is a great deal more than discrimination, of course, but set that aside for the moment.) Afraid of losing their federal funding, colleges then set about devising grievance procedures to address complaints of sexual harassment and sexual assault on their campuses. The problem: The OCR decreed that these Title IX tribunals must eschew "the 'clear and convincing' standard"—that is, that they cannot refuse to punish people unless "it is highly probable or reasonably certain that the sexual harassment or violence occurred." Such procedures, the office explained, "are inconsistent with the standard of proof established for violations of the civil rights laws." Instead the tribunals should embrace the weaker "preponderance of the evidence" standard, in which "it is more likely than not that sexual harassment or violence occurred." Without wading into the weeds of specific cases (I refer readers to the excellent and thorough reporting of my Reason colleague Robby Soave), it is apparent that applying a lower standard of proof means that it is easier to punish those guilty of sexual violence. Conversely, it also means that more innocent people will be falsely found guilty of offenses they did not commit. So how high a risk of false conviction do the innocent face under the OCR's Title IX guidance standards? John Villasenor, a professor of public policy at the University of California, Los Angeles, set out to answer that in a study that uses probability theory to model false Title IX convictions under the preponderance of the evidence standard. What he found should take all fair-minded Americans aback. Villasenor begins by examining how legal scholars assess the stringency of burden of proof when it comes to determining the guilt or innocence of defendants. For example, surveys of judges, jurors, and college students find that when it comes to determining guilt beyond a reasonable doubt, they converge on a 90 percent probability as the threshold for finding that a defendant has committed the infraction as being fair. For the preponderance of the evidence standard, the figure is 50 percent. The lower standard of proof doesn't merely make it more likely that someone will be convicted; it provides prosecutors a greater incentive to risk bringing a case. Villasenor outlines an example in which 100 people are accused of wrongdoing. He supposes that 84 are guilty and 16 are innocent. Now suppose that the tribunal convicts 76 of the guilty while letting eight guilty individuals go, and that it acquits 12 of the innocent while convicting four. The overall probability of conviction is 80 percent (76 guilty + 4 innocent), and by definition the probability of being innocent is 16 percent. But since four innocent defendants are convicted, there is a 25 percent probability (4 out of 16) that an innocent person will be found guilty. Villasenor aims to be very conservative in his estimations, so he decides to use a four percent threshold that an innocent defendant would be wrongly convicted under the beyond-a-reasonable-doubt standard. (He draws that number from [...]
Fri, 17 Mar 2017 13:30:00 -0400
(image) In his Commentaries on the Laws of England, William Blackstone declared, "It is better that ten guilty persons escape, than that one innocent suffer." In an 1785 letter, Benjamin Franklin was even more exacting: "That it is better 100 guilty Persons should escape, than that one innocent Person should suffer, is a Maxim that has been long and generally approv'd, never that I know of controverted."
In 2011, the U.S. Department of Education took a different position. The department instructed colleges and universities to use preponderance of the evidence rather than clear and convincing evidence when considering accusations of sexual assault on their campuses.
So how high a risk of false conviction do the innocent face under the department's guidance standards? John Villasenor, a professor of public policy at the University of California, Los Angeles, set out to answer that in a study that uses probability theory to model false convictions under the preponderance of the evidence standard. What he found should take all fair-minded Americans aback.
Fri, 10 Mar 2017 11:22:00 -0500In a new feature for America magazine, I explore how worried people of faith should actually be that their religious freedom is under assault. Some believers' claims can seem outlandish, as when one woman incorrectly told CNN before the election that pastors can be taken to jail if they refuse to solemnize a same-sex wedding. Surely the state knows better than to, say, try to dictate a church's operations. Doesn't it? But as a recent court hearing in New York makes clear, the line between something the government would obviously never do because it would clearly be a violation of the First Amendment, on the one hand, and something the government obviously has the right to do and how dare you suggest your fairy tales should let you get out of following the law, you bigot, on the other hand, is moving all the time. In its 2012 decision in Hosanna-Tabor v. EEOC, the Supreme Court held that anti-discrimination laws could not be used to interfere with a religious institution's right to select its own faith leaders. The ruling rested on a principle known as the "ministerial exception." In the U.S., a company isn't allowed to refuse to hire someone to a leadership position (or most other positions) because of the applicant's gender or religion. But if that rule were enforced against religious organizations, a Catholic church could be prosecuted for not ordaining women (or, even more absurdly, Protestants, Buddhists, and atheists) as priests. If that prospect doesn't disturb you, try substituting "Islamic mosque" for "Catholic church" and "imam" for "priest." It's an important precedent. In fact, people sometimes point to Hosanna-Tabor as evidence that conservative Christians who are worried the government is coming for them should cool their jets. In my America piece, I quote the University of Virginia law professor Douglas Laycock noting that "The ministerial exception decision was unanimous. It's not going anywhere." But even a ruling from all nine justices doesn't foreclose the possibility of expensive lawsuits, as one Christian school is discovering. Earlier this week, St. Anthony School and the Roman Catholic Archdiocese of New York were forced to appear in a Manhattan courtroom to argue that the state can't interfere in their hiring and firing decisions. The suit was brought by a former principal, Joanne Fratello, who says her employment termination violated civil rights law. The key dispute is over what counts as a minister. A pastor clearly is, while a landscaper clearly isn't. But what about a school administrator? In this case, as in Hosanna-Tabor before it, there is copious evidence the role in question did involve at least some religious ministry. A summary judgment siding with the school last year noted that Fratello's responsibilities included leading students in daily prayers and meditations, overseeing the religious education curriculum, and generally acting as a spiritual shepherd to pupils and faculty. Before she was hired, she was required to submit a letter confirming she's a practicing Catholic. She also signed a contract certifying she "recognizes the religious nature of the Catholic school and agrees that the employer retains the right to dismiss [the] principal" for any one of a series of reasons, including rejection of tenets of the faith. But Fratello's attorney argues the ministerial exception should apply only to clergy and—importantly—only within the four walls of an actual house of worship. He wrote in a brief that "a Church itself" but "not Church-affiliated entities operating in the secular world" are protected from interference, later adding, "organized religion must not be allowed to trump American democracy's need for an [sic] non-indoctrinated and educated citizenry." If the lawyer gets his way, it would constitute the rolling back of a precedent set unanimously by the Supreme Court just five years ago. (Hosanna-Tabor similarly featured a conflict between an educator and a religiously affiliated school.) It would also be the latest in[...]
Tue, 21 Feb 2017 06:00:00 -0500
In April 2015, Jamycheal Mitchell, 24, was accused of stealing $5 worth of snacks from a convenience store. A Virginia judge ordered Mitchell, who had been prescribed schizophrenia medication, to be sent to a psychiatric hospital, but there were no open hospital beds, so he was put behind bars instead.
Five months later, Mitchell was found dead in his cell at the Hampton Roads jail, 36 pounds lighter and lying in a urine-soaked bed, according to his family.
In December, the Justice Department launched an investigation into civil rights violations in that facility. "All prisoners, including those with mental illness, have a constitutional right to receive necessary medical care, treatment and services," Assistant Attorney General Vanita Gupta, head of the Justice Department's Civil Rights Division, said in a statement.
If the Justice Department intends to hold jails and prisons to those standards, it has many more cases to launch. Across the country, the mentally ill are routinely shoved into cells and denied proper care.
An investigation by the Sun Sentinel in Florida found the Broward County jail's contracted health care provider "left severely mentally ill inmates unmedicated and malnourished, despite having the authority to help them." Seven inmates have committed suicide or suffered extreme weight loss while in isolation at the jail since 2010, the newspaper reported.
There have also been four deaths just since April 2016 in the Milwaukee County jail, run by Sheriff David Clarke—reportedly on Donald Trump's shortlist for Homeland Security chief. One of those inmates was a mentally ill man who died of "profound dehydration."
A Huffington Post investigation found there were more than 800 jail deaths across the country, most of them unreported, from July 2015 to July 2016. About a third of those were suicides.
Ask any corrections official or beat cop, and he'll tell you the system arrests and holds the same troubled people over and over. Even with the best of intentions, using jails to house the mentally ill is a bad policy. When standards are lacking or staffers don't care about their wards, it can be a deadly one as well.
Wed, 08 Feb 2017 10:00:00 -0500Sen. Elizabeth Warren (D-Mass.) was told to take her seat during a late-night debate session last night over attorney general designee Sen. Jeff Sessions (R-Ala.) after Senate Majority Leader Mitch McConnell (R-Ky.) invoked the Senate's Rule 19, which states that senators may not "directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator." Warren is now barred from speaking on the floor of the Senate until after the vote on Sessions' nomination, which is expected today. Facing the near certainty of the Republican-controlled Senate voting to confirm Sessions, Democrats have planned to use every available minute of debate time to hit Sessions on his past statements and actions, sometimes invoking iconic figures to drive their point across. This is what Warren did when she quoted the late Sen. Edward Kennedy (D-Mass.), who in 1986 opposed Sessions' nomination for a federal judgeship by saying, "He is, I believe, a disgrace to the Justice Department and he should withdraw his nomination and resign his position." This quotation drew a warning from Sen. Steve Daines (R-Mont.), who asserted that Warren was in violation of Rule 19—which Warren reasonably found to be a bit of a stretch as Kennedy had been a senator at the time he was speaking about Sessions, who was not yet a senator. Warren later quoted a letter penned by Martin Luther King's widow, Corretta Scott King, where she addressed the late Sen. Strom Thurmond (R-S.C.) in 1986 to oppose Sessions' nomination to the federal court on the basis that as a U.S. attorney in Alabama, "Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens." This was a bridge too far for McConnell, who said Warren had "impugned the motives and conduct of our colleague from Alabama," and thus invoked Rule 19, forcing a vote that split down party lines, 49-43, to silence Warren for the rest of the debate on Sessions. McConnell later added, "Sen. Warren was giving a lengthy speech. She had appeared to violate the rule. She was warned. She was given an explanation...nevertheless, she persisted." Other pearl-clutching Republicans like Sen. Orrin Hatch (R-Utah) fretted that Warren's quotations were "offensive" and constituted a "constant diatribe" that would lead the upper chamber of Congress "down a very steep path to oblivion." And because even a stopped clock is correct twice a day, legendary over-legislator Sen. Charles Schumer (D-N.Y.) called the invocation of Rule 19 "selective enforcement" which could in theory be used "virtually every day in the Senate." Derek Hawkins writes in the Washington Post that Rule 19 came into being following a 1902 fistfight on the floor of the senate between two Democratic lawmakers from South Carolina. It's not clear how often the rule has been invoked, but suffice to say, it's been rare. Bloomberg's Greg Giroux dug up this nugget from 1979, where the rule was used to censure a Republican senator who called a fellow Republican an "idiot" and "devious." Then-Senate Majority Leader Robert Byrd (D-W. Va.)—whose most prominent legacy after 41 years in the Senate was being the "keeper" of the many arcane and self-aggrandizing Senate rules—reportedly brokered a truce between the two sparring Republicans. While the words of Kennedy and King may not be pleasant to the delicate ears of GOP senators, to characterize them as beyond the absurdly stuffy rules of senate decorum is ridiculous. Whether one agrees with her point or not, Warren was attacking Sessions' professional conduct before he was in the senate—it was not an ad hominem personal attack, and should absolutely be fair game for debate. Regardless, it's simply ridiculous that senators should enjoy special privileges shielding them from vigorous criticism just as they are about to be promoted to cabinet-level positions. Debates over confirmations are precisel[...]
Sat, 21 Jan 2017 07:00:00 -0500Our cities are saturated with militarized law enforcement officers. An extraordinarily high number of American civilians are killed by police each year. The U.S. prison population is the largest in the world. And we are only beginning to understand why. In recent years, scholars such as Naomi Murakawa and Marie Gottschalk and activists in the Black Lives Matter movement have broken from the civil rights generation's obeisance to the Democratic Party, and from the left's reflexive assumption that "law and order" Republicans are exclusively to blame for this situation. Instead, they have persuasively argued that much of today's criminal justice regime originated in policies forged by liberal Democrats in the second half of the 20th century, in particular under the presidencies of Lyndon Johnson and Bill Clinton. Yet even this new and welcome historical analysis of militarized policing and mass incarceration does not go deep enough. The campaign to criminalize victimless behaviors and then build a carceral system large and efficient enough to contain the criminals it would create began long before the 1960s, with the formation of the political regime we now call liberalism. The intellectuals and policy makers who created the modern wars on drugs and crime were the direct descendants of the original progressives, who emerged at the turn of the 20th century. Those progressives consistently argued that disruptive and marginal populations should be encouraged to assimilate into the formal culture of the country and to adopt the responsibilities of American citizenship, but they also held that individuals who refused to do so should be removed from society. Indeed, it could be said that progressivism was created around those twin projects. Unlike scientific racists, who were the dominant ideologists of race until World War II, progressives generally maintained that there were no innate barriers in any race of people to acquiring the personality of a "good" American. Progressives believed that certain races and nationalities had not attained the level of civilization of white Americans and northern Europeans, but also thought those peoples could and should be raised to that level. That is, most progressives were simultaneously anti-racist and hostile to cultures other than their own. Immigrants who brought alien ways of living, radical political ideas, and criminal behavior into the U.S. were invited into progressives' settlement houses, where they were given free vocational education, subsidized room and board, and instructions on the proper attitudes and behaviors of Americans. Those who demonstrated a willingness to follow the rules of their new society—even those who were originally believed to be of an inferior race, such as Italians, Jews, and Slavs—were deemed worthy of full citizenship. Most progressives believed that the culture of blacks was especially retarded, but they nonetheless funded hundreds of settlement houses for blacks and helped establish the first major civil rights organizations, the Urban League and the National Association for the Advancement of Colored People. One mission of those organizations was to eliminate the "pathologies" of native black culture, to "adjust or assimilate" blacks to the dominant culture, and to make them into "orderly citizens." This was a brutal and puritanical assimilationism, but it ran directly counter to the belief of the scientific racists that blacks were biologically incapable of becoming civilized. Nonetheless, progressives acknowledged that some immigrants and blacks and even some native-born whites would choose renegade lives of crime over constrained lives as citizens, and for that eventuality they created the basis of what is now called the carceral state. Beginning in the late 19th century, progressives waged a successful campaign to replace the police forces that primarily served as social-service providers for urban political [...]
Thu, 12 Jan 2017 16:45:00 -0500There's something to be said that the Department of Justice's newly released consent agreement with the City of Baltimore's Police Department seems to need to explain that officers should not just be total jerkholes when talking to citizens. Really, there's a small section in the 227-page reform plan that explains how they expect police to behave when speaking to average Joes who are not being detained and are not being suspected of a crime: The Parties recognize that Voluntary Contacts between police officers and the public are an important component of effective community policing. BPD will encourage officers to speak with members of the public in a friendly, professional manner to enhance communication, trust, and understanding. These Voluntary Contacts will underscore BPD's commitment to community-oriented policing and will also help officers build relationships with community members that may later assist criminal investigations. The contents of the agreement were released this morning after five months of negotiation between Baltimore and the Department of Justice. As I predicted yesterday, huge chunks of the report are about calling for more training and reporting and record-keeping. But to my surprise, there's actually an entire section of the report dealing with "misconduct investigations and discipline." It takes up about 35 pages of the report. Before that is page after page after page explaining basic constitutional policing. The agreement includes things like requiring police officers have reasonable suspicion to detain and search people, and not engage in warrantless searches; only arrest people for suspicions of crimes (no really, this is explained); stop using "boilerplate" language in reports to explain reasons behind stops and searches; not engage in racial profiling; not use information they know is not true to justify searches or arrests; attempt to de-escalate encounters before using force; not use force to punish people for resisting or attempting to flee (what the rest of us refer to as "police brutality"); don't use Tasers on elderly people, pregnant women, and small children, or just to stop people from fleeing; use seatbelts or restraining devices on people being transported (remember this is all partly due to the Freddie Gray case); respect the rights of citizens to both criticize police and observe and record public police behavior without retaliation; not retaliate against people who file complaints against police conduct; and so many, many, many other things. A read through the consent decree feels like the documentation of how most citizens expect their police to behave already. The section on handling police misconduct complaints is so long because, like everything else in the report, it documents every single step of expectations and demands training, and it reads almost like they're building a police department from scratch (which I suspect the Justice Department imagines in their heads exactly that). It is heavily focused on processes and transparency. Neither of these are bad things, but the manipulation of processes to protect bad cops is a consistent problem. "We followed procedures—therefore everything is fine." A couple of interesting things to point out in connection with managing police conduct: The agreement calls for checking the disciplinary and certification background of potential new hires, including consulting with the National Decertification Index. Anthony Fisher wrote about this database in September and how it helps stop hires of officers with histories of misconduct (and how it has gaps). There's also this vague but important agreement: "BPD will eliminate policies that authorize the expungement of records where an employee accepts discipline." Implementing all this mandated training and documentation system is not going to be cheap. But it's not clear how much it will cost. According to The Baltimore S[...]
Mon, 09 Jan 2017 15:05:00 -0500
(image) Talk about a race to the bottom.
Legislators in the great state of Alabama are moving swiftly to protect the safety of people using public restrooms.
Senator Phil Williams will introduce the Alabama Privacy Act, according to our news partners at AL.com.
The bill will require bathrooms and changing rooms to either be exclusive to one gender or open to all genders. Bathrooms that are open to all genders must be staffed by an attendant at all times.
According to the bill, any public institution the leaves bathrooms unattended could be hit with fines ranging from $2,000 to $3,500 and face potential lawsuits.
So it's not just a hysterical reaction to the nonexistent threat of men dressing up as women to gain entry to bathrooms because, come on, perversion, right? It's also a jobs program! Needless to say, State Sen. Phil Williams defines himself as a "conservative Republican."
The Daily Caller notes that it's not just Alabama (and before it, North Carolina) that's wrangling with bathroom bills. Texas' Lt. Gov. Dan Patrick, writes Amber Randall, is dropping knowledge like he just had lunch at What-A-Burger:
"If laws are passed by cities and counties and school districts allow men to go into a bathroom because of the way they feel, we will not be able to stop sexual predators from taking advantage of that law, like sexual predators take advantage of the internet," Patrick explained."
Virginia, too, is prepping a bathroom bill, because it's important to deal with non-issues rather than, say, balance state budgets or rein in public pensions.
Because we don't actually live in a completely post-fact world yet, it's worth underscoring that non-discrimination ordinances (NDOs) have been in place for years in various jurisdictions and led to no uptick in bathroom crimes.
HT: The Twitter feed of former Reasoner and current Wash Poster Radley Balko.
Related video: How To Share a Bathroom with a Trans Person in 4 Easy Steps.
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Tue, 01 Nov 2016 12:40:00 -0400At the University of Kentucky (UK), a legal battle between campus administrators and student journalists centers on how much privacy is owed to students who've accused a professor of sexual misconduct. The University contends that a campus paper publishing even minimal details about the case represents an unconscionable imposition on victims' privacy and creates a "chilling effect" that discourages future victims from coming forward. Student staffers of the Kentucky Kernel say the school is simply trying to cover-up occurrences that might reflect poorly on U.K. At the heart of this struggle is Title IX, the federal statute prohibiting sex discrimination in education. The University claims it must zealously guard all information related to campus sexual-misconduct complaints in order to avoid triggering legal and economic sanctions under Title IX. It's a perfect illustration of the weird tension between the U.S. Department of Education's efforts to enforce federal anti-discrimination law and the incentives for campus administrators to act reasonably. Obviously, a professor accused of harassing and assaulting students is of interest to the campus community and relevant for a campus paper to report on. But UK clims that to meet its federal obligation to create a safe and sexism-free campus, the school must carefully guard almost all details about campus sexual-assaults, even if that means fighting student journalists in state court. In a campus-wide email, University President Eli Capilouto even accused student paper Kernel of creating a chilling effect that stopped sexual-assault victims from coming forward since it started publishing information about James Harwood, a former UK entomology professor who had resigned amid accusations that he sexually harassed and groped students. The campus Violence Intervention and Prevention (VIP) Center "had 59 clients between July and October," Capilouto noted in his email. "In the same period this year, the number dropped to 38. The decline in the number of clients at the VIP Center underscores the chilling impact that news reports are having on the willingness of victim-survivors to come forward." But it's "not clear that the difference in yearly numbers can be attributed to a particular cause," McClatchy DC reported. "There was a similar dip between fall 2013 and fall 2014," with 59 VIP-center clients from July-October '13 and just 31 clients the following fall. And according to the Herald-Leader, the VIP Center received just eight clients from November 2013 through the rest of the 2013-14 school year. In other words, there's plenty of fluctuation in accusation numbers from semester to semester, and no particular reason to believe that the Kernel publishing minimal details of complaints against Harwood served to stifle student reports. The paper claims that Harwood's student accusers want the story to go public. The two women who had filed official complaints against Harwood "say UK is protecting the professor at the expense of his victims, other students, and the public," the Kernel reported. Because Harwood resigned before a full investigation into his conduct could be completed, "Harwood could be allowed to continue working at another university without the full results of the investigation following him." The feud between UK leadership and the student paper over Harwood's case began last March, when the Kernel sought to obtain copies of "the Title IX complaints filed by the two female students, any reprimands and any commendations, Harwood's personnel file, and any documents detailing the University of Kentucky's investigation into allegations of sexual assault, sexual harassment, or allegations of alcohol abuse committed by Harwood." The University responded by providing the Kernel redacted records from Human Resources and the College of Agriculture related to Ha[...]
Tue, 20 Sep 2016 07:30:00 -0400Preventing people from being discriminated against by private organizations is so exceptionally vital that the First Amendment needs to be subjugated to that aim, the U.S. Commission on Civil Rights declared last week. That's a paraphrase on my part. So that you don't think I'm making it up, I'll now quote directly from the report, which describes "civil rights protections ensuring nondiscrimination" as being "of preeminent importance." (The definition of preeminent is, of course, "above or before others" and "superior.") "Although the First Amendment's Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) limit the ability of government actors to impede individuals from practicing their religious beliefs," the report goes on, "religious exemptions from nondiscrimination laws and policies must be weighed carefully and defined narrowly on a fact-specific basis." Weighed carefully? That's an interesting choice of words. So how is a policy maker to know if the need for the religious exemption outweighs the need to protect people from, say, having a photographer refuse to work their wedding? According to the report, the answer is: It almost never does. The commission showed its hand by writing that the federal RFRA (which Bill Clinton signed to ensure Americans wouldn't be forced to violate their religious beliefs absent a compelling government interest and no less burdensome alternative) needs to be altered so that everyone understands that it "creates First Amendment Free Exercise Clause rights...only to the extent that they do not unduly burden civil liberties and civil rights protections against status-based discrimination." Likewise for the several-dozen state-based RFRAs that have been enacted over the years. In other words, your right to not be subjected to laws that violate your beliefs should be treated as categorically less important than my right not to have anyone discriminate against me. There would be little to take issue with here if the discrimination in question were the work of the government, a la state-mandated segregation under Jim Crow. (When Kim Davis tried to use the power of her office to deny marriage licenses to gay couples, to cite a more recent example, she was ordered to desist—and rightly so.) Unfortunately, the report isn't about public discrimination. It's about private discrimination, such as when a Catholic school wants to hire only people who adhere to the Church's teachings. It's a fact that different people hold different beliefs about morality. Some feel that offering a health insurance plan that covers contraceptives would make them complicit in a behavior they view as sinful. Others say the same about participating in same-sex weddings, or employing individuals who openly flout the strictures of their faith, or stocking abortifacient drugs in their privately owned pharmacies. The point isn't that these are good or bad beliefs to hold. The point is that a subset of people understands these actions to be wrong, and yet government entities (at the federal level in the first example, and at the state level in the latter three) have opted to require everyone to engage in them anyway—people's faith be damned. And these are precisely the types of requirements that the Commission on Civil Rights wants enforced at all costs, and only the narrowest possible exceptions to them entertained. That's a perfect inversion of how it ought to be. It's probably true that, as the report points out, religious exemptions to such laws "significantly infringe upon" the particular class of "civil rights" that statutorily enjoin private discrimination "based upon classifications" like religion and sexual orientation. But it's just as true that the laws themselves "significantly infringe upon" religion and "the free exercise thereof." The whole conver[...]
Fri, 19 Aug 2016 16:55:00 -0400A new federal ruling may add to some confusion on how existing civil rights laws address discrimination claims in situations involving transgender people. A federal judge with the United States District Court of east Michigan has ruled that a Detroit area funeral home did not engage in illegal discrimination when it fired an employee who was transitioning from male to female. It's a complicated case (the ruling is 56 pages long) and, of course, far from the last word. In this situation, the federal Religion Freedom Restoration Act (RFRA) and the Supreme Court ruling in the Hobby Lobby case play a role in Judge Sean F. Cox's decision. The owner of the funeral home, R.G. & G.R. Harris Funeral Home, said that, due to his religion, he believed that a person's sex was a "God-given gift" that could not be changed. When Aimee Stephens, formerly Anthony Stephens, declared that she was going to make her transition, the funeral home would not accommodate her desire to dress as a woman at the workplace. The company had gender-based dress codes and would not accept her switching outfits. So she was fired. It was the Equal Employment Opportunity Commission (EEOC) who challenged the termination as a violation of federal civil rights laws. This may come as a surprise to those who know that there are no federal civil rights laws that prohibit discrimination against people who are transgender. As we've previously noted about these cases, federal agencies and activists have been trying to expand the scope of a previous Supreme Court precedent that ruled civil rights protections on the basis of sex also prohibit discrimination on the basis of whether a person exhibits stereotypical traits associated with a particular sex. The EEOC is arguing that such a precedent means that discrimination on the basis of somebody being transgender is discrimination on the basis of sex, because judging somebody for switching their gender expression is the same as judging somebody on the basis of not conforming to gender stereotypes. The funeral home has said that Stephens can express her gender however she chooses on her own time but not in the workplace. The judge sided with the funeral home, but for some complicated reasons that will certainly keep the case alive. The judge accepted the invocation of the Religious Freedom Restoration Act (RFRA) here. It's important to understand that the RFRA isn't just blanket permission for somebody to use religion to exempt themselves from the law. When the RFRA is invoked, the government then must prove that it has a "compelling government interest" in regulating certain behaviors, but also that their method of doing so is the "least restrictive means" available. The court "assumes" the first part of this claim is true (libertarians may disagree), but when we get to the "least restrictive means" test, here's what Cox had to say: Nevertheless, the EEOC has failed to show that application of the burden on the Funeral Home, under these facts, is the least restrictive means of protecting employees from gender stereotyping. If a least restrictive means is available to achieve the goal, the government must use it. This requires the government to show a degree of situational flexibility, creativity, and accommodation when putative interests clash with religious exercise. It has failed to do so here. The EEOC's briefs do not contain any indication that the EEOC has explored the possibility of any accommodations or less restrictive means that might work under these facts. Perhaps that is because it has been proceeding as if gender identity or transgender status are protected classes under Title VII, taking the approach that the only acceptable solution would be for the Funeral Home to allow Stephens to wear a skirt-suit at work, in order to express Stephens[...]
Thu, 18 Aug 2016 13:00:00 -0400
The horrific deaths of Philando Castillo in St. Paul, Minnesota, and Alton Sterling in Baton Rouge, Louisiana, give us an updated and up-close glimpse of police encounters gone bad—but they are rooted in decades of problematic policing in America. "Historically in this country, the police have never really been the friends of the black community," says Neill Franklin, a former officer with the Baltimore Police Department and current executive director of Law Enforcement Against Prohibition (L.E.A.P).
Franklin talked with Reason TV Editor-in-Chief Nick Gillespie at this year's Freedom Fest in Las Vegas, Nevada, pointing out that slavery may have ended officially in the late 1800s, but a lot of policing was born out of that era and the one that followed, when police deliberately enforced laws in ways that targeted black citizens. Even today, police are tasked with enforcing laws—from driving without a license to missing a court date—that tend to target poor communities and communities of color.
"You know a $250 fine doesn't mean much to people who have money," says Franklin. "But when you enforce these policies in poor communities, a hundred dollar fine can devastate a family."
It comes down to the need for a new model of policing in America, says Franklin, not just tweaks of the same old system. "What we have now is not like trying to fix a broken car, this car was a used car in the first place."
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Tue, 16 Aug 2016 09:28:00 -0400The U.S. Department of Housing and Urban Development (HUD) is finalizing a rule stipulating that homeless shelters must allow transgender women to stay in women's areas and transgender men to stay in areas designated for men—setting off "a firestorm [that pits] LGBT groups against religious organizations that operate many homeless shelters," The Hill reports. Meanwhile, the Obama administration is introducing a rule guaranteeing that transgender people can use bathrooms consistent with their gender, rather than biological sex, when in federal buildings. The new regulation, which will be posted in the Federal Register this week, covers 9,200 properties owned by the General Services Administration (GSA), including federal courthouses, Social Security offices, and other spaces across the country. BuzzFeed News first reported on the federal-buildings regulation, after obtaining a draft notice outlining the changes. The notice, circulated to federal agency heads on August 8, states that "federal agencies occupying space under the jurisdiction, custody, or control of GSA must allow individuals to use restroom facilities and related areas consistent with their gender identity." BuzzFeed notes that "the regulation builds on and reinforces a growing body of interpretations by the Obama administration to protect transgender people under longstanding civil rights laws." In the past several years, federal agencies have begun holding that bans on sex discrimination—instituted to address disparate treatment of women—also cover discrimination based on sexual orientation, gender identity, and/or gender expression. That is, under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, LGBT discrimination is sex discrimination, they say. My colleagues Scott Shackford and Robby Soave have written extensively about these developments, including the Equal Opportunity Commission (EEOC) ruling that applied the Civil Rights Act to sexual orientation, Obama's support for the "Equality Act," the states fighting federal rules on trans high-school kids, and why Title IX is a bad tool for extending trans student rights. The trouble is that Title IX has also been used by the Obama administration to hold that basically any sexuality-related statement or action that makes any college student uncomfortable counts as sexual harassment, thereby creating a "hostile" educational environment and inviting the federal Office of Civil Rights to intervene. Under this same statute, the feds say transgender high-school students must be allowed to use bathrooms and locker rooms consistent with their gender identity. But what if sharing a bathroom with students born male makes biologically female students uncomfortable? They, too, would ostensibly have a claim under Title IX. The homeless-shelter situation puts us in a similar bind, with the interests of transgender homeless people and some religious shelter owners in conflict. It makes little sense, to me, to house someone who identifies, looks, and lives as female with male residents, or vice versa. But, as The Hill points out: "Religious organizations see things differently." And in trying to do what's right for trans homeless people, the government is poised to force religiously-run shelters to operate in ways that violate owners' convictions and consciences—thus opening itself up to another wave of lawsuits. Catholic Charities USA and the Association of Gospel Rescue Missions have both raised concerns with HUD already. "It makes no sense at all," Tim Wildmon, president of the American Family Association, told The Hill. "Good, Christian organizations that are trying to help people do not need Washington dictating their bathroom or bedding policies[...]
Tue, 02 Aug 2016 13:38:00 -0400Body-worn cameras are being widely adopted by police departments around the country as an important tool for increasing officer accountability and transparency. For example, a 2015 study found that wearing body cameras reduced officer use-of-force incidents by 50 percent and citizen complaints by 90 percent. However, more recent research finds that police use-of-force declines only when officer discretion to turn cameras on or off is minimized. In other words, watched cops are polite cops. Today, the Leadership Conference on Civil and Human Rights and the technology evaluation group Upturn released their updated scorecard evaluating the civil rights safeguards of body worn camera policies for 50 major city police departments. The scorecard uses eight criteria to evaluate the body-worn camera policies of each police department. The criteria are: Makes its policy publicly and readily available; Limits officer discretion on when to record; Addresses personal privacy concerns; Prohibits officer pre-report viewing; Limits retention of footage; Protects footage against tampering and misuse; Makes footage available to individuals filing complaints; and Limits the use of biometric technologies. Each of the policy areas are scored as fully, partially or not at all satisfying these eight criteria. So what did they find? Only 26 of the 50 departments fully satisfied the criterion of making it easy for citizens to find their body-worn camera (BWC) policies on their websites. The scorecard also cites specific departments as models for implementing each of the criteria. For example, San Francisco has a designated webpage that updates the department's BWC policy after every biweekly BWC working group meeting. Twenty-two departments had policies that set limits on the discretion of officers to record interactions with citizens. The Leadership Conference researchers noted that Chicago has a policy that clearly specifies when officers must record and requires officers to provide concrete justifications (on camera) for failing to record. Interestingly, the body camera of the Chicago police officer who shot and killed a young black man, Paul O'Neal, last week was not functioning. The officers involved in the shooting have been relieved of their police powers. Only 11 departments fully satisfied the criterion for protecting the privacy of vulnerable individuals (e.g. victims of sex crimes) from being recorded without their prior informed consent. The model policy cited is used by the Philadelphia police department which requires that police officers to deactivate cameras when entering a residence, hospital room, or at the request of any crime victim, witness, or informant. If practical, police are supposed to ask permission to record inside residences and record any consent given on camera. None of the 50 departments had policies that fully satisfy the criterion for limiting officer review of body-worn camera video prior to filing their reports of an encounter. In fact, 40 departments allow — or even encourage — officers to view relevant footage before filing an initial written report or statement. The idea behind prohibiting pre-report review is that filing an initial written report from memory would provides greater context to what occurred and prevents the officer from conforming his statements to just what is shown on the video. The Oakland, California police department had the best policy. Officers are required to submit a written report of the incident to an investigator first and then given an opportunity to view the video and subsequently amend the report. Only 11 departments fully satisfied the criterion on retaining unflagged footage for no more than six months. If the video i[...]
Tue, 26 Jul 2016 15:00:00 -0400Earlier in the year, Democratic Virginia Gov. Terry McAuliffe made a big splash by declaring that he would, as a blanket measure, restore the voting rights of more than 200,000 released felons. Republicans immediately resisted the gesture. Grotesquely—and predictably—the debate very quickly became about who these released felons would be voting for, as though that should factor in at all as to whether their civil liberties should be restored. Republicans challenged McAuliffe's order in the courts, and Virginia's Supreme Court just recently ruled 4-3 against McAuliffe. To be clear, the Supreme Court didn't rule that McAuliffe couldn't restore the voting rights of released felons who had done their time and were no longer under state supervision. Rather, McAuliffe essentially tried to expand his own power as governor with a blanket gesture, and the state's constitution did not give him such authority. He just completely screwed up the process and turned the whole effort into a lesson in the limits of executive authority. From the ruling: All agree that the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis. But that truism does not mean he can effectively rewrite the general rule of law and replace it with a categorical exception. The express power to make exceptions to a general rule of law does not confer an implied power to change the general rule itself. The unprecedented scope, magnitude, and categorical nature of Governor McAuliffe's Executive Order crosses that forbidden line. … If the anti-suspension provision has no role to play as a check on any of the Governor's clemency powers, this view, taken to its logical limits, would empower a Virginia Governor to suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone convicted of his disfavored crime. This view would similarly empower a Governor to issue a single, categorical order restoring voting rights to all felons — even those imprisoned, those subject to a supervised criminal sentence, and those released from prison but later civilly committed as sexual predators — thereby eliminating any remaining vestige of the general voter disqualification rule in Article II, Section 1 of the Constitution of Virginia. Sen. Tim Kaine, Hillary Clinton's choice for vice president and former governor of Virginia, was also referenced in the ruling. When Kaine was governor, he was asked to take a blanket action to restore voting rights but determined that he didn't have that level of power. His counsel at the time wrote the very "notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling." Fortunately for felons in Virginia, this doesn't mean they can't get their voting rights back. It just means he has to go case by case and do it the "hard," but legally correct, way, and McAuliffe says he's going to do exactly that. There are additional signs that McAuliffe had handled the whole case poorly as well. He refused to publicly release the list of names of felons who would have had their voting rights restored. But those who had seen the list discovered there were people on the list who shouldn't be there, including felons who were still in prison, as well a couple of fugitives convicted of sex crimes. The New York Times notes that in order to restore all these felons' rights the correct way (where he reviews each case), he'd have to sign 385 orders per day for the rest of his term. This suggests that he might not actually review each case as he's supposed to and could end up ri[...]