Tag: civil rights

Supreme Court Restores Constitutional Order, Strikes Down Outdated Voting Rights Act Provision

In striking down Section 4 of the Voting Rights Act, the Supreme Court restored a measure of constitutional order to America. Based on 40-year-old data showing racial disparities in voting that no longer exist, this provision subjected a now-random assortment of states and localities to onerous burdens and unusual federal oversight. Recognizing that the nation has changed, the Court aptly ended the extraordinary intrusion in state sovereignty that can no longer be justified by the facts on the ground.

“If Congress had started from scratch,” Chief Justice Roberts wrote for the majority, “it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way.” And so this law must fall.

Of course, the Court really should’ve gone further, as Justice Thomas pointed out in a concurring opinion. The Court’s explanation of Section 4’s anachronism applies equally to Section 5. In practice, however, Congress will be hard-pressed to enact any new coverage formula because the pervasive, systemic discrimination in voting that justified such an exceptional intrusion into the normal constitutional order is now gone.

And that’s a good thing. Today’s ruling underlines, belatedly, that Jim Crow is dead.

‘Marsupial Justice’ Is a Natural Product of Federal Overreach

Earlier this month I blogged about the U.S. Department of Education’s recent push to eliminate free speech and due process on campus.  More and more people are starting to notice this attempt by the department’s Office of Civil Rights to force colleges — by threatening an investigation and loss of federal funds — to redefine sexual harrassment to include unwelcome flirting and sex jokes and then lower the burden of proof they use when determining whether students or staff are guilty of violating the new code of behavior.

And now we have a characteristically astute article by the Washington Examiner’s Michael Barone.  Money quote:

Education Secretary Arne Duncan has shown an admirable openness to argument and intellectual debate. Perhaps someone will ask him whether he wants his department to be encouraging kangaroo courts and marsupial justice on campuses across the country.

Unfortunately, this sort of thing doesn’t just take care of itself.  Greg Lukianoff and his team at the Foundation for Individual Rights in Education have been doing a workmanlike job protecting student and academic freedoms, but at base this policy exposes the sorts of pathologies that emerge from a federal government that has too many tentacles in too many places. 

What is the Department of Education doing setting any sort of standards for speech, conduct, and adjudication of campus disputes — good or bad, strict or lax?  Why do we even have a federal Department of Education in the first place?

Unanimous Supreme Court Vindicates Market-Based Fees for Civil Rights Claims

It hasn’t happened that much under my watch, but it’s gratifying when the Supreme Court overwhelmingly endorses Cato’s position in a given case.  Not a 5-4 split dependent on what Justice Kennedy had for breakfast or some narrow “win” that doesn’t reach the issues we care most about, but a solid across-the-board victory for our first principles.

But such was the case in Justice Kagan’s (!) opinion for a unanimous Court in Fox v. Vice, in which Cato filed a brief last December that I discussed here:

Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.

In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.

Today the Supreme Court essentially agreed 9-0 with our view that (1) the Fifth Circuit’s decision imposes prohibitive costs on civil rights enforcement of civil rights; (2) by prematurely deeming a suit frivolous and ordering the plaintiff to pay the defendant’s fees, the lower court imposed penalties that would shut down legitimate lawsuits midstream; and (3) the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court, contrary to the law’s purpose here.

In short, when a plaintiff’s lawsuit is for both frivolous and non-frivolous claims, a court may grant reasonable fees but only for the costs that a defendant would not have incurred but for the frivolous claims – so no fee awards even for work that goes towards both frivolous and non-frivolous claims.  You can read the opinion here

Thanks to our pro bono counsel at WilmerHale and to the organizations who joined us on our brief: the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech.

Due Process Stops at the Campus Gates?

People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation.  As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:

If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing.  It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault.   According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard.   So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.

As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:

Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.

Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan’s case or that of the Duke lacrosse team.  Justice (what lawyers call “due process”) demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence.  It is no more just for an innocent person to be smeared and forever tarnished – if not convicted and imprisoned – than it is to let a guilty man go free.  Indeed, as Blackstone famously said, “Better that ten guilty persons escape than that one innocent suffer.” 

What’s more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it’s not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:

California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”

This disconnect between basic principles of free speech and due process creates what Lukianoff calls “a perfect storm for rights violations”:

By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.

FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff’s indictment of the new policy. 

The Department of Education needs to rescind/clarify this mess.  Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.

China Cracks Down on Ideas. And Music. And Advertising.

The government of China finally confirmed that it has detained the artist Ai Weiwei. Meanwhile, Evan Osnos writes from Beijing for the New Yorker about China’s “Big Chill”:

Step by step—so quietly, in fact, that the full facts of it can be startling—China has embarked on the most intense crackdown on free expression in years. Overshadowed by news elsewhere in recent weeks, China has been rounding up writers, lawyers, and activists since mid-February, when calls began to circulate for protests inspired by those in the Middle East and North Africa. By now the contours are clear: according to a count by Chinese Human Rights Defenders, an advocacy group, the government has “criminally detained 26 individuals, disappeared more than 30, and put more than 200 under soft detention.”

Indeed, everywhere I turn today, there’s news about Chinese censorship and fear of dissent, of ideas, of art, of words like “luxury.” The Washington Post has a major article on Bob Dylan’s concert Wednesday night in Beijing. Dylan, the troubadour of the peace movement and the Sixties and civil rights, in the capital of the world’s largest Communist party-state. How’d that go? Ask Keith Richburg, whose Post article is titled “The times they are a-censored”:

Rock music icon Bob Dylan avoided controversy Wednesday in his first-ever appearance in Communist-led China, eschewing the 1960s protest anthems that defined a generation and sticking to a song list that government censors say they preapproved, before a crowd of about 5,000 people in a Soviet-era stadium.

Keeping with his custom, Dylan never spoke to the crowd other than to introduce his five-member band in his raspy voice. And his set list – which mixed some of his newer songs alongside classics made unrecognizable by altered tempos — was devoid of any numbers that might carry even the whiff of anti-government overtones.

In Taiwan on Sunday, opening this spring Asian tour, Dylan played “Desolation Row” as the eighth song in his set and ended with an encore performance of “Blowin’ in the Wind,” whose lyrics became synonymous with the antiwar and civil rights protest movements.

But in China, where the censors from the government’s Culture Ministry carefully vet every line of a song before determining whether a foreign act can play here, those two songs disappeared from the repertoire. In Beijing, Dylan sang “Love Sick” in the place of “Desolation Row,” and he ended his nearly two-hour set with the innocent-sounding “Forever Young.”

There was no “Times They Are a-Changin’ ” in China. And definitely no “Chimes of Freedom.”

Meanwhile, NPR reports that Beijing has banned words such as “luxury,” “supreme,” “regal,” and “high-class” on billboards:

The city’s new rules state that ads must not glorify “hedonism, feudal emperors, heavenly imperial nobility” or anything vulgar, according to the Global Times newspaper. They also should not violate “spiritual construction” standards or worship foreign products — leading some to believe the campaign could be targeting foreign luxury goods.

“The truth is that the party has very clearly started what is very clearly a campaign against ostentation in China,” says David Wolf of Wolf Group Asia, a communications advisory agency. “There is a pushback against things Western. And there is the desire to see those Western things take a lesser role in the development of Chinese culture.”…

China Daily reports that the campaign is aimed at protecting social harmony, quoting a sociologist who says advertisements that promote the belief that “wealth is dignity” could upset low-income residents.

Now there’s some good old-fashioned communist thinking! Of course, communists with the courage of their convictions would ban the products, not just the ad copy. But it’s nice to see the old values survive.

In some ways the government’s confirmation that it has detained Ai Weiwei is the most chilling indication of the new climate. It came in an editorial in Global Times, a vigorous presenter of the government line. Just listen to the combative language:

Ai Weiwei likes to do something “others dare not do.” He has been close to the red line of Chinese law….

The West ignored the complexity of China’s running judicial environment and the characteristics of Ai Weiwei’s individual behavior. They simply described it as China’s “human rights suppression.”

“Human rights” have really become the paint of Western politicians and the media, with which they are wiping off the fact in this world.

“Human rights” are seen as incompatible things with China’s great economic and social progress by the West. It is really a big joke. Chinese livelihood is developing, the public opinion no longer follows the same pattern all the time and “social justice” has been widely discussed. Can these be denied? The experience of Ai Weiwei and other mavericks cannot be placed on the same scale as China’s human rights development and progress.

As I’ve written before, China faces a dilemma. They have opened up their economy and reaped huge benefits, perhaps the largest advance in human well-being in the history of the world – as the editors of Global Times defiantly argue. But if China wants to become known as a center of innovation and progress, not just a military superpower or a manufacturer, it will need to open further. Investors want to put money into a country with the rule of law. Creative people want to live in a country that allows them to read, write, think, and act freely.

Way back in 1979, David Ramsay Steele, author of From Marx to Mises: Post-Capitalist Society and the Challenge of Economic Calculation, wrote about the changes beginning in China. He quoted authors in the official Beijing Review who were explaining that China would adopt the good aspects of the West–technology, innovation, entrepreneurship–without adopting its liberal values. ”We should do better than the Japanese,” the authors wrote. “They have learnt from the United States not only computer science but also strip-tease. For us it is a matter of acquiring the best of the developed capitalist countries while rejecting their philosophy.” But, Steele replied, countries like China have a choice. “You play the game of catallaxy, or you do not play it. If you do not play it, you remain wretched. But if you play it, you must play it. You want computer science? Then you have to put up with strip-tease.”

How much freedom can China’s rulers tolerate? How much repression will its citizens tolerate? How many ambitious, creative Chinese will leave the world’s largest market to find more creative freedom elsewhere? These may be the most important questions in the world over the next generation.

Another Life Taken

Bad enough that people get arrested and jailed for drug offenses, but the proliferation of SWAT teams and the tactic of breaking into homes, especially during the night, is reckless.  In this case, the break-in did not lead to any shooting, but as the 68-year old suspect was lying on the ground, complying with all the police commands, he was accidently shot and killed.

FRAMINGHAM, Mass.—A Framingham police officer who shot and killed a 68-year-old man during an early morning drug raid will not face criminal charges.

Prosecutors say the shooting was an accident and Duncan’s actions “do not rise to the level of criminal conduct.”

But attorneys for the family of Eurie Stamps said Wednesday that they will launch a civil rights investigation because the shooting was unjustifiable, his rights were violated and those responsible must be held accountable for his death.

Authorities say Duncan lost his balance while preparing to handcuff Stamps after members of the SWAT team stormed the Fountain Street home just after midnight on Jan. 5.

The Middlesex district attorney’s office says officer Paul Duncan stumbled and accidentally fired his rifle, hitting Stamps as he lay on the floor on his stomach with his hands up.

More here.

Marriage against the State

I’m pleased to announce the publication of my new Cato Policy Analysis, “Marriage against the State: Toward a New View of Civil Marriage.”

As I note in the introduction, it’s quite rare that Congress ever considers marriage as a policy area in its own right. There are comprehensive health care bills, defense spending bills, farm bills, and civil rights bills, but no really comprehensive marriage bills.

Of course, this might be a good thing, but one of the side effects is that marriage policy can be haphazard in the extreme. Inconsistencies and surprises abound. Marriage influences welfare, immigration, tax law, child custody and support, and many others besides.

Are all of these things legitimate? A popular view among libertarians is that the federal government, and possibly the states, should get out of the marriage business altogether. It’s an approach with much to recommend it, but I can’t entirely agree. For at least some areas of public policy, marriage represents a barrier to government meddling in your financial, family, and intimate life. In these areas, it’s an unqualified good. Marriage is often a defense against the state, and as such, it’s something libertarians ought to want.

Consider child custody. All children born to a married couple are presumed to belong to them. You don’t have to do anything special to assert your paternity (or maternity). You are presumed to have it. This is probably for the best. Inviting the government to prospectively examine married couples’ fitness as parents is one of the most corrosive things I could imagine doing to the nuclear family.

Or consider the gift-tax exemption for married couples. Husbands and wives may gift one another money or property without limits, tax-free. It’s an important part of the financial independence that we are accustomed to having in our families, and it allows a family to conduct an interdependent financial life with dignity and autonomy.

Yet this same exemption, oddly enough, can make a legal divorce cheaper than the breakup of a never-married relationship. A married couple can divide their assets, including houses, cars, and other properties, before they split up. A never-married couple will often have to pay taxes on their pre-breakup transfers – making the government in effect a third party to their relationship. No one would want this for all couples, of course, least of all libertarians.

Extricating marriage from other parts of federal law won’t be easy, either. For some fairly complicated reasons that I explain in the paper, the only way to make the income tax fully neutral with respect to marriage – and also neutral across families with unequal income distributions between spouses – is to adopt a flat tax. While I share the view of many of my Cato colleagues that a flat tax is a good idea, the marriage-related consequences of our current tax system aren’t always appreciated as a reason to move in that direction. They should be.

As a third example, consider immigration. Marriage to a citizen considerably hastens the process of immigrating legally. Even if that process were not unconscionably slow (which I think it is), we would probably still want the immigration of marriage partners to be a high priority. Immigrant spouses of citizens are clearly integrated to some extent into American society. The American spouses’ own liberty interests are clearly implicated. And, perhaps best of all for critics of immigration, immigrant spouses’ numbers are relatively small in any case.

Lastly, and because I know a lot of you probably skimmed up to this point, I do discuss same-sex marriage. One of the more common arguments against same-sex marriage is that those who have moral objections shouldn’t be forced to subsidize same-sex unions with their tax money.

Let’s grant the basic justice of the argument (and never mind that Quakers, Buddhists, and others could morally object to our enormous defense spending!). Still, it’s not well known that by the best available estimates, federal same-sex marriage would leave the government in a better fiscal position, not a worse one. A good way to channel less federal money to same-sex couples is actually… to allow them to marry.

Why is this? Well, some married couples still pay a marriage penalty, and gay and lesbian couples obviously would too. More significantly, spouses’ incomes and assets are declared in the means testing for federal welfare programs. Marriage would exclude some gays and lesbians from these programs. They may want marriage anyway, but on balance, it’s clearly not for grabbing federal dollars.

I discuss quite a few other marriage-related issues in this Policy Analysis, and even so, it’s not remotely comprehensive. My goal is to suggest a new way of thinking about marriage, one that evaluates the effects of various marriage-related policies using the individual right to form a family as the standard. Not every aspect of federal marriage policy stands up, but some of them do. Let’s let a new conversation begin.