Subscribe: Civil Rights
http://www.reason.com/topics/topic/136.xml
Added By: Feedage Forager Feedage Grade B rated
Language: English
Tags:
case  civil rights  civil  court  discrimination  federal  orientation  people  rights  sex  sexual orientation  sexual  supreme court 
Rate this Feed
Rate this feedRate this feedRate this feedRate this feedRate this feed
Rate this feed 1 starRate this feed 2 starRate this feed 3 starRate this feed 4 starRate this feed 5 star

Comments (0)

Feed Details and Statistics Feed Statistics
Preview: Civil Rights

Civil Rights



All Reason.com articles with the "Civil Rights" tag.



Published: Sat, 16 Dec 2017 00:00:00 -0500

Last Build Date: Sat, 16 Dec 2017 08:01:40 -0500

 



Supreme Court Won't Decide Whether Civil Rights Act Bans Anti-LGBT Discrimination

Mon, 11 Dec 2017 16:45:00 -0500

(image) The Supreme Court will not yet step in to rule on whether federal laws against discrimination on the basis of sex also forbid discrimination on the basis of sexual orientation.

Today the top court declined to hear a lawsuit from a woman in Georgia who claims she was harassed and forced out of her job as a hospital security guard because of her sexual orientation. Lambda Legal, the LGBT-issue-focused legal group that represented her, argues that this violated Title VII of the federal Civil Rights Act of 1964.

That law does not explicitly mention sexual orientation as a protected category, and for much of its history it was treated as though orientation were not included. Many states have chosen over time to add sexual orientation and sometimes gender identity to their own discrimination laws. But Georgia has not.

There is, however, a Supreme Court precedent—established in 1989's Price Waterhouse v. Hopkins—that discrimination based on whether a person expresses stereotypical masculine or feminine behaviors counts as sex-based discrimination. In this security guard's case and similar cases, lawyers argue that discrimination over sexual orientation is rooted in sex-based stereotypes about how males and females should look and behave, and that Title VII therefore covers it after all.

This view of the law does have some federal court rulings supporting it, but it has not made it up to the Supreme Court for a final decision. The interpretation played a significant role in the Obama administration's decision to tell schools they must accommodate transgender students' restroom and locker room choices. The issue of transgender accommodation in schools was heading to the Supreme Court, but when Attorney General Jeff Sessions took over, the Department of Justice reversed its stance, taking the position that federal discrimination laws do not cover sexual orientation or gender identity. Tthe Supreme Court subsequently punted the bathroom case back down to the lower courts, leaving the matter somewhat unsettled as a matter of law.

An 11th Circuit Court of Appeals panel rejected the Georgia woman's claim in March. In April, the 7th Circuit Court of Appeals, which covers Indiana, Illinois, and Wisconsin, determined the opposite—that the Civil Rights Act does prohibit discrimination against gays and lesbians. So there is a split in federal court rulings, making the Supreme Court's decision not to hear the case a bit of a surprise.

The Supreme Court did not indicate why justices are declining to take the case. A representative from Lambda Legal said in a statement that they're going to keep pushing to get the issue in front of the Supreme Court. Unless Congress passes a law settling the matter one way or the other, this seems likely to end up before the Supreme Court eventually.




These Three Cases Define This Month at the Supreme Court Term: Podcast

Fri, 08 Dec 2017 14:45:00 -0500

The Supreme Court's docket is jammed with important cases if you care about individual liberty and limited government, none more so than Masterpiece Cakeshop v. Colorado, which pits religious expression against anti-discrimination laws, Carpenter v. United States, a case with massive implications for warrantless surveillance and tracking, and Christie v. NCAA, which challenges the ability of the federal government to "commandeer" state officials. In the latest Reason Podcast, Nick Gillespie talks with Senior Editor Damon Root, the author of the widely praised Overruled: The Long War for Control of the U.S. Supreme Court, about significance of these cases and their likely outcomes based on recent oral arguments. Root also analyzes how new Associate Justice Neil Gorsuch is likely to influence the decisions and how Donald Trump's picks for the federal judiciary are shaping up. Audio production by Ian Keyser. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/366796454%3Fsecret_token%3Ds-NihVq&color=%23f37021&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true&visual=true" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. This is a rush transcript—check all quotes against the audio for accuracy. Nick Gillespie: Today we're talking with Damon Root. He is a senior editor at Reason and he is also the author of Overruled: The Long War for Control of the US Supreme Court. And we're going to be talking with Damon today about the Supreme Court. The cases that are in front of it right now. And what is the likelihood that Neil Gorsuch, the newest associate justice is going to change the balance of power or maintain the status quo. Damon, thanks for talking. Damon Root: Thank you. Gillespie: So, what are the biggest and most important cases that you're tracking this season? Root: Well, I'd say the three biggest that are in front of the court right now, we have the gay marriage wedding cake case, we've got a case called Carpenter v. United States, which is about the Fourth Amendment and the warrantless acquisition of cellphone data by the government. The ability of the government to basically track your whereabouts with historical cellphone data, using records from cell towers and whether or not that's a Fourth Amendment violation. And then this case out of New Jersey, Christie versus NCAA, which is a 10th Amendment federalism case dealing with a federal law that basically makes it illegal for the states to legalize or in this case partially legalize, sports gambling. Gillespie: All right. Well, let's let's start with the gay wedding cake, and the baker. Should, as I think it was Austin Petersen the libertarian who is running for the Libertarian nomination, Libertarian Party nomination for president put it, should a Jewish baker have to bake, I guess, a homophobic Jewish baker have to bake a gay Nazi wedding cake? What is going on there? What are the basic facts of the case? And where do you see it going? And we just heard oral arguments about that as well. Root: The basic dispute is that this baker, his argument is that by being forced to create a custom wedding cake for a same sex marriage, that the government and the state, in this case the state of Colorado, is compelling him to speak. He has sincerely held religious beliefs and disapproves of same sex marriage for these sincerely held religious beliefs and to be compelled to create a custom wedding cake for gay marriage is his compelled speech. The government is forcing him to speak, he's an artist. He expresses his artistic view for the cake. Gillespie: Yeah. So is this a freedom of religion? Because obviously, it's all first amendment, but is it really freedom of religion? And I guess now I'm going to say it's like a triple First Am[...]



Ed Gillespie’s Scaremongering On Felon Voting Rights Is a Sloppy Return to Crime Hysteria

Fri, 27 Oct 2017 16:45:00 -0400

Anyone within range of a Virginia media market has been inundated with ads lately for the state's gubernatorial election, pitting Republican Ed Gillespie against the Democrat, Lt. Gov. Ralph Northam. As the race draws to a close, Gillespie unleashed a series of Trumpian attack ads against Northam. One of those ads hits Northam for his role last year in Gov. Terry McAuliffe's ambitious, unprecedented action to restore voting rights to Virginia felons: src="//www.youtube.com/embed/bRGldOX5lEk" allowfullscreen="allowfullscreen" width="560" height="314" frameborder="0"> Last year, Terry McAuliffe and Ralph Northam instituted the automatic restoration of rights for violent felons and sex offenders, making it easier for them to obtain firearms and allowing them to serve on juries. One of these felons, John Bowen, had his rights restored two months after being found with one of the largest child-pornography collections in Virginia's history. Forty-three prosecutors—Republicans, Democrats, and Independents—opposed Ralph Northam's reckless policy. Now, Virginia law enforcement has endorsed Ed Gillespie for governor. Virginia is one of only four states where a felony conviction bars one from voting for life. Last year, McAuliffe announced with great fanfare that he was issuing an order to automatically restore the voting rights or more than 200,000 Virginians who had completed their prison sentences, including violent felons. The order also allowed ex-offenders to petition a judge for the restoration of their Second Amendment rights. Gillespie's ad is an unsubtle nod to the tough-on-crime campaign spots that got Republicans and Democrats alike elected to office in the 1980s and 1990s. The most infamous of these was the George H.W. Bush campaign's 1988 Willie Horton ad. The Gillespie campaign has also released ads trumpeting the dangers of MS-13, a Latin street gang that has been the bête noire of the Trump administration, and Gillespie's opposition to removing Confederate monuments. The Washington Post editorial board declared Gillespie's last-minute populist turn "a poisonous strategy for the nation and for Virginia." And like those old crime ads, the Gillespie campaign plays fast and loose with the facts in the case of John Bowen. Bowen had been arrested in December—but not yet convicted—for child pornography when his voting rights were restored. Bowen had voting rights for a total of 41 days. McAuliffe's administration made a mess of the restoration order, leaving it open to attacks like those on the Bowen case. The order accidentally restored voting rights to some felons who were still in prison, as well as 132 sex offenders held in civil commitment—a process where a judge can continue to indefinitely detain sex criminals in a state treatment facility after the completion of their prison sentence, if their mental illness or disorder is deemed likely they will offend again. Furious Republicans sued to block the order, and the state supreme court ruled that McAuliffe didn't have the authority to grant such an en masse restoration without signing off on each individual case. Since then, he has signed off on roughly 168,000 offenders. One major twist in this story is Gillespie's campaign website saying, overall, he supports restoring voting rights for felons. Like many Republicans these days, Gillespie's views on criminal justice are moderate and not unlike mainstream Democrats like Northam. Gillespie supports keeping questions about prior felonies off of state government job applications. He'd like to end the suspension of drivers' licenses for unpaid court fines, something Reason reported last year resulted in hundreds of thousands of Virginia residents losing their licenses every year, even if they had no means to pay the fines. After putting the fear of enfranchised sex offenders in the heart of the audience (they might vote and serve on juries!), the second half of Gillespie's TV spot tries to return to moderate support for the policy: Virginians who have [...]



Feminist Group Loses Fight to Declare Yik Yak App a Civil-Rights Violation

Fri, 22 Sep 2017 15:30:00 -0400

A federal court in Virginia shot down one of the sadder displays of anti-speech authoritarianism in recent memory, a demand that the social-media app Yik Yak be declared a civil-rights violation on college campuses. The U.S. District Court for the Eastern District of Virginia this week dismissed a lawsuit filed against the University of Mary Washington (UMW) by a coalition led by the Feminist Majority Foundation. The suit contended that UMW allowing Yik Yak on campus constituted a violation of Title IX of the Civil Rights Act, which prevents sex discrimination at educational institutions receive federal funding. "As social media has proliferated, cyberbullying has become a national problem," and "solutions are not easy or obvious to anyone," the court noted. "In seeking solutions, however, schools cannot ignore other rights vital to this country, such as the right to free speech." The whole debacle stems from Yik Yak users at UMW harassing members of a campus feminist group (and branch of the Feminist Majority Foundation) in 2015. Yik Yak is now defunct, but at the time it was a popular app on college campuses, allowing users within a certain distance to broadcast their thoughts anonymously in a Twitter-like fashion. The students complained to UMW administrators, who told them they could not ban the app on campus because of free-speech concerns. That's when Feminist Majority Foundation and others asked the Department of Education to intervene. In an administrative complaint against UMW, the groups charged colleges with violating students' civil rights "by failing to adequately address the sexually hostile environment created by persistent online harassment and threats" on Yik Yak—a private platform students could download independently on their own phones or devices. Schools exerted no control over who downloaded the app or what they posted on it. The feminist groups proposed schools get around this by installing software that would block Yik Yak on school computer networks, a "solution" that would both fail on technological grounds (anyone using their phone's network or non-school wifi could still access the app) and First Amendment ones. Feminist Majority Foundation also filed a civil lawsuit against the school, alleging violations of Title IX and the Equal Protection Clause. On Tuesday, the court explained its reasons for granting its motion to dismiss the suit. "To establish a Title IX claim, a plaintiff must show that a [school] acted with deliberate indifference to known acts of sexual harassment so severe, pervasive, and offensive that the harassment deprived the plaintiff of access to educational opportunities or benefits," explains the U.S. District Court for the Eastern District of Virginia decision. It's a standard that focuses on action or inaction by the school, not third parties, and is limited to situations in which the school has substantial jurisdiction "over both the harasser and the context in which the known harassment occurs." In this case, "the Title IX discrimination claim fails because the harassment took place in a context over which UMW had limited, if any, control—anonymous postings on Yik Yak," the court decided. And in realms where it did have control—like holding student assemblies and having a university police officer investigate a specific threat—it took swift action. "While UMW did not take the specific action requested by the plaintiffs, Title IX does not require funding recipients to meet the particular remedial demands of its students," especially when those demands may expose a school to liability under the First Amendment," the court ruled. It also noted that some of the campus feminists members received individual threats of physical and sexual violence, calling them out by name and revealing their addresses. In some cases, legitimate criminal charges may have been warranted. But instead of going after harassers directly, the aggrieved students and Feminist Majority Foundation lashed out at t[...]



The Juggalos Are the Forgotten Men and Women of America: Podcast

Thu, 21 Sep 2017 18:00:00 -0400

"The [Juggalos] have their own language, they have their own leaders, [and] they have their own ways of talking to each other," says Paul Detrick, who covered the group's march on Washington last weekend. "They exist in this strange world of their own." Who are the Juggalos? In a nutshell, they're fans of the rap duo Insane Clown Posse and have built a cultural identity around the music. They're known for wearing clown makeup, hatchet main logos, and greeting each other with "whoop, whoop!" The Juggalos are mostly working class—these are the people "work at Pizza Huts...and gas stations," says Detrick—and often refer to each other as "family." In 2011, the FBI labeled the group a "hybrid gang" in its National Gang Threat Assessment, which has been causing problems for Juggalos with local law enforcement. Last weekend's march on Washington was a protest against the gang designation. Detrick, a journalist at Reason, has been covering the group for years, producing a 2014 documentary on the group that was shot at the annual Gathering of the Juggalos, and more recently a profile and interview with Insane Clown Posse. Nick Gillespie talks with Detrick about Juggalo subculture, the real life legal perils of gang misclassifications, and the meaning of the "hatchet man" logo. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/343451142%3Fsecret_token%3Ds-VqMo9&color=%23f37021&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&visual=true" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. This is a rush transcript—check all quotes against the audio for accuracy. Nick Gillespie: Paul, thanks for joining us. Paul Detrick: Whoop whoop Nick, whoop whoop. Gillespie: Whoop whoop, indeed. Well, tell us, as a starting point, before we get to the actual march on Washington and why it was being done and what it hoped to accomplish, let's lay out some history here. Who are the Insane Clown Posse? Detrick: The Insane Clown Posse are a rap duo from 25 years ago. They've been around for a really long time, but they are a horrorcore rap group from Detroit. And they're sort of this underground rap group that has never really hit the mainstream, but has gained a lot of popularity in just the last few years, ever since this gang classification happened in about 2011. Gillespie: It's Violent J and Shaggy 2 Dope. Is that correct, are the two main guys? Detrick: That's right. Yes, Viol- Gillespie: And they wear clown makeup. I mean, it's somewhat reminiscent of KISS, I guess, back in the '70s up to the early '80s. But it's weird kind of clown makeup, and they do rap, and you said it's horrorcore. Can you explain to people what horrorcore is? Detrick: Horrorcore music is something that they invented. Horrorcore music is like horror movies, but in music form. So the lyrics are very, very violent lyrics, they're always talking about murdering people. But the trick of it is that if you really listen to the lyrics, they're murdering people that are bigots, and racists, and that represent parts of society that they don't like. And the clown makeup comes from the fact that they come from very poor backgrounds, and they've always thought that people always thought of them as a joke, so they decided to take that on and make it a part of their act. So, everybody thinks of them as a joke, "Okay, we'll wear clown makeup, we'll drink the cheapest soda out there. We're not going to drink Coca-Cola, we're not going to drink Dr. Pepper. We're going to drink Faygo and we're going to spray it on the audience." It all worked into what their persona was. They just kept playing into that. And they targeted people just like them, that grew up in poor white [...]



The Juggalos March on Washington

Sun, 17 Sep 2017 14:57:00 -0400

"We have the right to listen to any kind of music we want without being labeled a gang," says Nellie Aldred, a Juggalo and mother of two. Aldred and family traveled from South Carolina to the D.C. area to participate in the Juggalo March on Washington. Juggalos are the fans of the Detroit horrorcore rap group Insane Clown Posse (ICP) and they are protesting a gang classification given to them by the Federal Bureau of Investigation in 2011.

Aldred says she and family were needlessly stopped by police over a hatchetman sticker on their car (The hatchetman is a symbol that identifies one as a Juggalo.) Further, more Juggalos say the gang label has lead to lost jobs and been used against them in child custody disputes.

"[The march] is our mark on history. It's showing the world who we are. We've been hiding under the streets for way too long and we are about to come up top and show everybody who we are," says Aldred.

"If the government can get away with this, then what the fuck happens to us next," said Shaggy 2 Dope (Joseph Utsler), one of the members of ICP, to a crowd in front of the Lincoln Memorial.

The march included testimonies from people who have had the gang label negatively applied to them as well as speeches from supporters like writer and Juggalo Nathan Rabin.

"There is no such thing as an ordinary Insane Clown Posse show. It's always a spectacle," says Rabin, author of You Don't Know Me But You Don't Like Me and 7 Days in Ohio. "The challenge was to show the world that Juggalos are good people. Juggalos are a law abiding people. Juggalos love each other and are a positive force for the community and I think that's been illustrated here."

Subscribe to our YouTube channel.

Like us on Facebook.

Follow us on Twitter.

Subscribe to our podcast at iTunes.

Produced by Paul Detrick and Jim Epstein. Camera work by Epstein, Todd Krainin and Meredith Bragg. Sound by Mark McDaniel.




Insane Clown Posse: 'We're First Amendment Warriors' for Juggalo Nation

Fri, 01 Sep 2017 10:55:00 -0400

On a hot summer night in July, crowds of people gathered in a remote wooded area in front of a concert stage. Their faces were covered in clown makeup and their arms and legs painted with hatchetman tattoos. By the end of the night, they'd all be covered in sticky, cheap soda. This was the annual "Gathering of the Juggalos" in Oklahoma City, where thousands flock to see their favorite rap group, Insane Clown Posse (ICP). The Juggalos aren't just ICP fans— they've built a cultural identity around the music, the rap duo, and what it represents. In turn, ICP has stood up for its followers as they've been harassed and profiled all over the country. Unwittingly, these two white rappers from Detroit have become some of the nation's most determined advocates for free expression. On September 16, 2017, ICP will lead the Juggalos in a march on the National Mall in Washington D.C. They'll be protesting the FBI's decision to label the group as a "hybrid gang" back in 2011 in the agency's National Gang Threat Assessment. Since then, local police have used the report as guidance, resulting in rampant harassment and profiling of a group defined by its love for a music group. ICP sued the FBI in 2014, but after three appeals, the case hasn't made it to trial. So now the group is heading to D.C. "It's a publicity stunt," says ICP's Violent J (Joseph Bruce). "We want to say to everybody, 'we're not cool with that.'" "[If] Juggalos are being fucked with, we got to do something about it," says Violent J's partner Shaggy 2 Dope (Joseph Utsler). "If that ties us into some First Amendment movement, whatever, we're First Amendment warriors. I don't know." In the early 1990s, the rap duo from Detroit started to notice that its unique brand of scary horror rap was attracting poor, scrubby, white kids also from the Motor City. "We represent people who weren't born with a silver spoon in their mouth but instead with a rusty fork," said Violent J in a 1995 interview. So Violent J. and Shaggy 2 Dope started painting their faces like clowns as a point of pride. If society was going to treat the poor like carnival freaks, they would play along. The duo also started bringing bottles of the cheap soda pop Faygo on stage to spray the audience during their sets. In 1997, ICP had its album pulled from stores by Hollywood Records, a subsidiary of Disney. A few years later the duo had a disappointing experience at Woodstock '99, a corporate reboot of Woodstock '69. So ICP decided to chart its own path away from the mainstream. In 2000, the group held the first "Gathering of the Juggalos," which was around when their fans started to draw negative attention. "They're the poor white people that everybody has no problem mocking," says pop culture writer Nathan Rabin, who's the author of the Juggalo-centric books You Don't Know Me But You Don't Like Me and 7 Days in Ohio. But ICP used its pop-culture-punchline status to bolster its fan base. Getting demonized by society brought the community closer. Juggalos often refer to each other as family. "We feel like whatever the magic is that's bringing us all together, whatever the magic is they're hearing, is the same magic we're feeling," says Violent J."This shit saved our lives too." "It's very validating and exciting to be around people who love you just because of what you do and what you like," says Rabin. Then came the FBI's gang classification, which ICP initially took lightly. "When we first heard about it, you know, we were just like, 'yo, that's pretty cool'" says Shaggy 2 Dope. "Like out of all the nations top gangs, they actually think we're a gang. We must really be out there," says Violent J. "We had no idea of any repercussions that were going to happen because of that." Then Juggalos started getting harassed by the police for having hatchetman stickers on their cars, and identification with the group started coming up in child custody case[...]



Dick Gregory Took Us All on a Strange and Powerful Trip

Sun, 20 Aug 2017 11:25:00 -0400

The comedian and activist Dick Gregory has died at the age of 84. Talk about a career that's virtually impossible to categorize. From avant-garde joke teller to civil-rights figure to diet guru to conspiracy mongerer, he lived a full life that in many ways mirrors all the twists and turns of American life over the past 50 or 60 years. He was relentlessly pessimistic about the state of the country even as he inspired his audience to work for change. I found him interesting because he was always out there on the horizon, lighting a path—albeit often one not particularly grounded in facts—that many of us would be following down soon after. Born in St. Louis in 1932, Gregory ran track for Southern Illinois University in Carbondale on a scholarship, got drafted, and eventually ended up in Chicago, where he became one of the hottest entertainers of the early 1960s. Hugh Hefner of Playboy, which was still headquartered in the Windy City, was a huge fan and helped to massively increase Gregory's audience. Like Lenny Bruce and other cutting-edge comics of the time, Gregory played with social conventions in a way that was both thrilling and nervous-making. "Segregation is not all bad," went a characteristic one-liner. "Have you ever heard of a collision where the people in the back of the bus got hurt?" He was a regular presence at civil rights events during the '60s, ran for president, authored a popular natural-foods cookbook in 1974, Dick Gregory's Natural Diet for Folks Who Eat: Cookin' with Mother Nature and helped popularize the idea of healthy fasting. "When I look at the obituaries," he once quipped, "I don't see no one but all you eaters." He was a fixture on the college tour circuit by the 1980s, when I saw him perform at Rutgers, and his monologues were shot through with frankly insane conspiracy theories (I vaguely recall him claiming that the victims of the Atlanta child murders had been mutilated in a way that suggested a government cover-up). An immediate critic of the Warren Report on the JFK assassination, he dismissed official accounts of 9/11 as well, even declaring a liquid fast until the "true story" was made available. Unsurprisingly, he taped a long appearance with Alex Jones about 9/11. In 1964 he published a memoir, co-authored by famed sportswriter and novelist Robert Lipsyte (Reason interview here), controversially titled Nigger. Gregory later said that he wished he'd chosen a different title, but he dedicated the volume to his mother with the note, Dear Momma— Wherever your are, if you ever hear the word "nigger" again, remember they are advertising my book. The opening chapter of Nigger, in which Gregory chronicles a Christmas when his absent father ("a real Capone with the whores and the bitches") comes home and beats his wife, son, and mistress, is one of the most painful accounts of black rage that America has sadly produced. It stands with passages from Frederick Douglass, Richard Wright, and James Baldwin in its anger, empathy, and pain. For anyone interested in the black family and the way in which mother-son dynamics get forged in a culture of absentee fathers, Gregory's autobiography is invaluable. The book's documentation of segregation and its effects on American culture should be required reading for those of us who didn't live through that period or have forgotten its reality. His turn to conspiracist thinking allows insight into how minorities who have suffered systematically at the hands of a dominant culture search for meaning and understanding in a hostile world. Dave Chapelle's recent Netflix specials explicitly discuss this tendency among blacks, and it's a predilection that extends to other groups of people who feel marginalized. In Donald Trump's America, understanding the complaints (without necessarily endorsing them) of people who feel pushed to the fringe of society is more importan[...]



Federal Agencies Split on Whether Civil Rights Act Protects Against Anti-Gay Discrimination

Thu, 27 Jul 2017 13:00:00 -0400

The Department of Justice and the federal Equal Employment Opportunity Commission (EEOC) are at odds over whether sexual orientation is covered by the bans on sex discrimination in the Civil Rights Act of 1964. The EEOC believes, and has repeatedly argued over the past few years, that discrimination against people on the basis of sexual orientation or gender identity is already covered within the Civil Rights Act. They present this argument despite the fact that most people treat these categories as separate and that at the time of the passage of the act, legislators were most certainly not attempting to protect gay or transgender people from workplace discrimination. In a brief filed yesterday for a workplace discrimination case in the U.S. Court of Appeals for the 2nd District, the Department of Justice contradicted the EEOC, telling the court that discrimination on the basis of sexual orientation is specific and different from discrimination on the basis of sex and is not covered under the Civil Rights Act. Court precedents have made it more complicated to separate out what the law means when it talks about sex discrimination. A Supreme Court precedent set in 1989 established that discrimination on the basis of "gender stereotyping" counts as sex discrimination. So punishing a male employee for being feminine or a female employee for being masculine can be forbidden. Efforts to use this concept to oppose discrimination against people for being transgender began prior to Barack Obama's presidency, but his administration ultimately supported the idea. The idea that Title VII of the Civil Rights Act already covers transgender discrimination is what prompted the Obama administration to oppose North Carolina's controversial "bathroom bill." The administration also argued that Title IX of the Education Amendments of 1972, which bars sex discrimination, also requires public schools to accommodate transgender students by allowing them to use the gender-separated facilities (restrooms, locker rooms) of their choice. Under Attorney General Jeff Sessions, the Department of Justice has already withdrawn the guidance to schools that was sent under the Obama administration, stating that federal courts are still split on the underlying issues. This week the Department of Justice weighed in on that workplace discrimination case, which hinges on whether Title VII covers sexual orientation. The department's attorneys argue that it does not. They argue that Congress has the authority to decide whether to add sexual orientation as a protected class, has had numerous opportunities to do so over the years, and has not. "The theories advanced by the EEOC and the Seventh Circuit lack merit," they state. "These theories are inconsistent with Congress's clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination." It remains to be seen whether this argument from the Justice Department will influence the outcome of the case. In April, the U.S. Court of Appeals for the 7th Circuit ruled, 8-3, that the Civil Rights Act does prohibit discrimination on the basis of sexual orientation as a form of sex discrimination. As I noted at the time, these cases seem likely to end up before the Supreme Court eventually. Read the Department of Justice's brief here.[...]



Trump Officials Promise Changes to College Sex- and Speech-Policing Agency

Wed, 05 Jul 2017 14:02:00 -0400

Under Barack Obama, the U.S. Department of Education drastically ramped up its attention to sex, speech, and social relations on college campuses—a move that mired college students, staff, and faculty in an inscrutable and labyrinthine system of federal investigations but failed to produce noticeable progress in students feeling fairly treated by the process. Now Trump administration officials are promising to refocus the department's Office for Civil Rights (OCR), the agency responsible for regulating anti-discrimination policy in education. OCR is "committed to discontinuing the legally dubious practice of issuing subregulatory guidance that is then treated through enforcement as binding mandates," Candice Jackson, acting head of the office, told the National Association of College and University Attorneys (NACUA) last week. During the Obama administration OCR, had a propensity for issuing "Dear Colleague" letters that casually defined things like sexual assault, sexual harassment, and gender in terms that created serious confusion and pressure at schools. At the NACUA meeting, Jackson said her office would refrain from imposing new regulations on schools without going through the established federal rulemaking process. She also promised not to shirk OCR's mission of making sure schools that receive federal funding do not discriminate against students based on sex, gender, race, religion, etc., nor tolerate an environment that's hostile or unsafe for them because of these things. It's under this umbrella that OCR oversees schools' handling of campus sexual assault. "We're charged by Congress with a specific mission: to enforce the civil rights guaranteed to our nation's students by certain civil rights laws, and we are fulfilling that charge," Jackson said, according to a report from Inside Higher Ed. "For those in the press and my friends with other political perspectives who have been expressing fear that...OCR is scaling back or retreating from civil rights, that's just not the case." How true this is or remains we shall see, but there's certainly room to scale back on OCR's bureaucratic excesses without sacrificing student rights or safety. In fact, for all of the Obama-era OCR's grand moves, it made little dent in investigating allegations of systemic bad actors in academia, leaving behind a backlog of cases. OCR "processing times have skyrocketed in recent years and the case backlog has just exploded," Department of Education Press Secretary Elizabeth Hill said in a recent statement. Jackson accused Obama's OCR of taking a "gotcha" approach that treated "every complaint as a fishing expedition through which our field investigators have been told to keep searching until you find a violation rather than go where the evidence takes them." Previous OCR head Catherine Lhamon insists the "fishing" accusation is false. "OCR's charge from Congress is that it must act whenever it has information that civil rights may be violated," Lhamon tells Inside Higher Ed, "and if one student has been harmed, it's incumbent on OCR to look to see if there's another student who is similarly situated." Justified by congressional mandate or not, this approach led to lengthy investigations with slow resolutions—a situation understandably frustrating and frightening both to those facing allegations of misconduct and to victims of sexual assault and harassment. It's also an asinine way to keep students safe from any potential serial predators. What the approach did wonders for is snowballing investigations that picked up ever more (and more minor) potential perps along the way, since simply talking or writing about a Title IX inquiry can get a student or professor accused of violating Title IX policies. "I've heard from activists on all sides that they no longer recommend going to OCR because th[...]



Federal Court Ruling Forbidding Antigay Job Discrimination Potentially a Very Big Deal

Wed, 05 Apr 2017 12:05:00 -0400

Discrimination on the basis of sexual orientation counts as discrimination on the basis of sex and therefore is already prohibited under relevant federal laws. That's the meat of the ruling released late yesterday by the U.S. Court of Appeals for the 7th Circuit, which covers Indiana, Illinois, and Wisconsin. The 8-3 ruling has huge political and legal consequences. The court specifically determined that Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex, also bars discrimination on the basis of sexual orientation. So now, suddenly, without passing any new laws, we have a new protected class under federal law. Mind you, the court doesn't see this as a new federal class, or at least the majority doesn't. The case revolved around a woman suing Ivy Tech Community College in Indiana claiming that she had been discriminated against and denied teaching positions on the basis of her sexual orientation. Sexual orientation is notably not covered under Title VII and lower courts had tossed her case out for that reason. But the full court determined that even though sexual orientation does not have special separate protection under federal law, it is nevertheless covered under bans on sex discrimination. One of the arguments the court found compelling was that if you changed the plaintiff's sex to male and changed nothing else about her life, the discrimination would not have happened. She would be a man married to a woman—a heterosexual—and would not have been denied employment because of her relationship. Therefore, discrimination on the basis of her sex is indicated, not just her orientation. Furthermore, the Supreme Court has previously established a precedent that discrimination on the basis of whether a person conforms (or not) to a gender stereotype counts as sex discrimination. That precedent is also brought to bear in this case (and has been invoked in other cases of discrimination on the basis of sexual orientation and gender identity as well): Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel describes the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively's claim is no different from the claims brought by women who were rejected for jobs from traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man). The majority ruling is fundamentally focused on the idea that court decisions over time have filled out the concept of what certain types of discrimination mean in real practice beyond just the basic terms of "sex" or "race" or any other protected characteristic. Discriminating against a woman because she's pregnant counts as sex discrimination. Discriminating against a person for being in an interracial marriage counts as discrimination on the basis of race. Therefore, their logic is that discriminating against a person for being a relationship with somebody of the same sex is discrimination on the basis of sex. Such a ruling may also then bring into play a lively debate over the limits of who much leeway judges should have to determine the boundaries of a law and how much they should be bound to the original intent of the law's creators. That's a diplomatic way of saying that there's going to be a lot of discussion about "activist judges" in response to this case. The t[...]



No, LGBT Rights Are Not and Should Not Be Dependent on Census Questions

Fri, 31 Mar 2017 12:45:00 -0400

This week in ginned-up Donald Trump administration outrage that distracts from actual issues: The Census will continue to not ask questions that they haven't been asking about LGBT people. This in some quarters has been presented as some sort of LGBT "erasure." It's not. At least when activists within the LGBT and progressive community freaked out about the possibility of an anti-gay executive order coming from President Donald Trump's administration, there was actual documentation. It turned out that Trump was not interested in signing such an executive order and it never came to be. But at least there was smoke to be concerned about if not an actual fire. Such is not the case with this week's LGBT anti-Trump outrage, which turns out to fundamentally be less about gay and transgender rights and more about organizations who want a slice of the great federal spending pie. To explain: The U.S. Census put out a proposal earlier in the week for questions it may ask during the 2020 census. Sexual orientation and gender identity were among the potential discussion topics. This was not something the Census had asked previously, which you know if you've participated in a census, ever. Then, the Census quickly explained that it had not intended to include the questions about sexual orientation and gender identity this time and withdrew the topics. So the Census, which had never asked people if they were LGBT before, is not planning to ask in the 2020 census either. Cue the outrage. The first headline I saw came from Out Magazine, a top gay-targeted publication. The headline read "Trump Administration Omits LGBTQ People from the 2020 Census." My initial reaction was "Woo hoo! I don't have to participate in the census!" But even before reading I suspected that wasn't what the story actually meant. The Trump administration is not omitting LGBT people from the census, and a writer actually analyzing how the announcement played out notes that the Trump administration might not have even played any role in the consideration of the questions at all. Even Snopes has gotten into the act with an explainer. What actually happened is that the National LGBTQ Task Force, an activist group with an open, stated agenda of having these questions added to the census, put out a press release declaring their unhappiness in seeing the questions get deleted. I don't use "agenda" as a negative here, and I don't necessarily see an issue with the Census Bureau asking people their orientations for demographic purposes, as long as it's made very, very clear that answers are completely voluntary. But there is a deliberately misplaced outrage here that wants to trick LGBT people into thinking that their rights and equal protection under the law is dependent on whether the federal government knows that they're gay or transgender. This is a seriously unsettling proposition. Here's a quote from Meghan Maury, criminal and economic justice project director of the National LGBTQ Task Force: "Today, the Trump Administration has taken yet another step to deny LGBTQ people freedom, justice, and equity, by choosing to exclude us from the 2020 Census and American Community Survey. LGBTQ people are not counted on the Census—no data is collected on sexual orientation or gender identity. Information from these surveys helps the government to enforce federal laws like the Violence Against Women Act and the Fair Housing Act and to determine how to allocate resources like housing supports and food stamps. If the government doesn't know how many LGBTQ people live in a community, how can it do its job to ensure we're getting fair and adequate access to the rights, protections and services we need?" What does demographic inclusion in a study have to do with whether LGBT people ar[...]



How Title IX Sexual Assault Injustice Operates

Fri, 17 Mar 2017 13:30:00 -0400

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. 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,[...]



Calculating the Risk of a False Title IX Sexual Assault Conviction: New at Reason

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.




More Evidence That What Counts as 'Religious Freedom' Is Always In Dispute

Fri, 10 Mar 2017 11:22:00 -0500

In 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[...]