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Civil Rights

All articles with the "Civil Rights" tag.

Published: Wed, 16 Aug 2017 00:00:00 -0400

Last Build Date: Wed, 16 Aug 2017 22:12:27 -0400


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 Under Attorney General Jeff Sessions, the Department of Justice has already withdrawn the guidance to schools that was sent under the Obama administration, stating that federal courts are still split on the underlying issues.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 the long investigations mean that an OCR complaint is virtually worthless in terms of actually correcting a violation for a complainant," Jackson told the NACUA assembly last week. Last month, an internal Department of E[...]

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 three dissenting judges were very concerned at the consequences of the judiciary making the decision to massively expand the limits of what the classifications of the law covered: The result is a statutory amendment cou[...]

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 are treated equally under the law? Nothing. The Supreme Court decision on same-sex marriage, for example, is a ruling precedent that makes it clear that rights and privileges extended by the government are to apply equall[...]

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, 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 [...]

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 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[...]

Cell Blocks Aren't Psych Wards

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.

Senate Rules Like the One Used to Silence Elizabeth Warren's Criticism of Jeff Sessions are Dumb, Arcane, and Self-Aggrandizing

Wed, 08 Feb 2017 10:00:00 -0500

Sen. 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 critic[...]

Don't Like Militarized Police and Mass Incarceration? Blame Progressivism.

Sat, 21 Jan 2017 07:00:00 -0500

Our 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[...]

The Justice Dept.'s Costly Reform Agreement with Baltimore Police Explains Basic Appropriate Behavior

Thu, 12 Jan 2017 16:45:00 -0500

There'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 documen[...]

Worst Bathroom Bill Ever: Alabama Law Would Mandate Attendants in Public Restrooms

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

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."

Read the full text of the proposed legislation here.

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.

Note on image: Curt Schilling was an excellent baseball pitcher and a generally terrible human being and game designer who cost Rhode Island taxpayers on the order of $50 million.

Related video: How To Share a Bathroom with a Trans Person in 4 Easy Steps.

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University of Kentucky Takes Student Paper to Court Over Reporting on Sexual-Assault Complaints Against Professor

Tue, 01 Nov 2016 12:40:00 -0400

At 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 respond[...]

U.S. Commission on Civil Rights Wants to Subjugate the First Amendment

Tue, 20 Sep 2016 07:30:00 -0400

Preventing 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[...]

Religious Freedom Invoked (Successfully) in Federal Transgender Discrimination Case

Fri, 19 Aug 2016 16:55:00 -0400

A 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 soluti[...]