Topic: Law and Civil Liberties

Nevada Supreme Court: Education Savings Accounts Are Constitutional, Funding Mechanism Isn’t

In a landmark decision, the Supreme Court of Nevada today upheld the constitutionality of the nation’s most expansive educational choice law. However, the court ruled that the funding mechanism the legislature adopted is unconstitutional. If the legislature creates a new funding mechanism–as it could and should in a special session–then the ESA program could be implemented right away.

Enacted in 2015, Nevada’s education savings account (ESA) policy was originally scheduled to launch at the beginning of this year, but it immediately drew two separate legal challenges from the government schooling establishment and the ACLU and its allies. Nevada’s ESA provides students with $5,100 per year (plus an additional $600 for low-income students or students with special needs) to use for a wide variety of approved educational expenditures, including private school tuition, tutoring, text books, online courses, homeschool curricula, and more. Families can also roll over unspent funds from year to year. As the Heritage Foundation’s Lindsey Burke and I have explained, the ability to customize a child’s education and save funds for later are significant improvements over school vouchers:

ESAs offer several key advantages over traditional school-choice programs. Because families can spend ESA funds at multiple providers and can save unspent funds for later, ESAs incentivize families to economize and maximize the value of each dollar spent, in a manner similar to the way they would spend their own money. ESAs also create incentives for education providers to unbundle services and products to better meet students’ individual learning needs. 

Of the five existing ESA programs, Nevada’s is the most expansive. Florida, Mississippi, and Tennessee restrict their ESAs to students with special needs. Arizona originally restricted ESA eligibility to students with special needs, but has since included foster children, children of active-duty military personnel, students assigned to district schools rated D or F, and children living in Native American reservations. In Nevada, all students who attended a public school for at least 100 days in the previous academic year are eligible. 

In two separate lawsuits, opponents of educational choice alleged that Nevada’s ESA violated the state constitution’s mandate that the state provide a “uniform system of common schools” (Article 11, Section 2), its prohibition against using public funds for sectarian purposes (Article 11, Section 6), and a clause requiring the state to appropriate funds to operate the district schools before any other appropriation is enacted for the biennium (Article 11, Section 10). The court found that the ESA was constitutional under the first two constitutional provisions, but the way it was funded violated the third.

Study: Fewer Citizen Complaints After Police Body Camera Deployment

A recent randomized controlled trial found that the number of complaints against police fell dramatically after officers were outfitted with body cameras. It is the latest piece of research suggesting that police body cameras have a positive effect on police-citizen interactions. 

The study, headed by the University of Cambridge’s Institute of Criminology, studied complaints against police in seven sites in two countries. The departments involved in the study were in areas such as the English Midlands, Cambridgeshire, California, and Northern Ireland. Researchers examined 4,264 officer shifts over roughly 1.5 million hours. In the 12 months before the trial began there were 1,539 complaints filed against police in the seven sites. After 12 months of taking part in the trial there were 113 complaints, a reduction of 93%.

Officers involved in the study were told to adhere to two policies that are not required by many departments: 1) officers wearing body cameras “had to keep the camera on during their entire shift,” and 2) those same officers had to “inform members of the public, during any encounter, that they were wearing a camera.”

The study’s findings are similar to an often-mentioned trial that took place in Rialto, California, which also found that the outfitting of officers with body cameras was followed by a significant reduction (87.5%) in complaints. 

Speaking about the most recent study, Cambridge University’s Barak Ariel, who oversaw the Rialto trial, said, “I cannot think of any [other] single intervention in the history of policing that dramatically changed the way that officers behave, the way that suspects behave, and the way they interact with each other.” 

Interestingly, the researchers found that complaints fell for officers who weren’t wearing body cameras as well as those who did. According to the researchers this may be because of “contagious accountability”:

We argue that that BWCs affect entire police departments through a process we label contagious accountability. Perhaps naively, we find it difficult to consider alternatives to the treatment effect beyond the panopticonic observer effect when the reduction in complaints is by nearly 100%. Whatever the precise mechanism of the deterrence effect of being watched and, by implication, accountability, all officers in the departments were acutely aware of being observed more closely, with an enhanced transparency apparatus that has never been seen before in day-to-day policing operations. Everyone was affected by it, even when the cameras were not in use, and collectively everyone in the department(s) attracted fewer complaints.

Associated Press Finds Police Database Abuse

This morning, the Associated Press published results of their investigation into the unauthorized access of law enforcement databases by police officers. They found egregious abuses including stalking, harassment, and selling of personal information.

Unspecified discipline was imposed in more than 90 instances reviewed by AP. In many other cases, it wasn’t clear from the records if punishment was given at all. The number of violations was surely far higher since records provided were spotty at best, and many cases go unnoticed.

Among those punished: an Ohio officer who pleaded guilty to stalking an ex-girlfriend and who looked up information on her; a Michigan officer who looked up home addresses of women he found attractive; and two Miami-Dade officers who ran checks on a journalist after he aired unflattering stories about the department.

“It’s personal. It’s your address. It’s all your information, it’s your Social Security number, it’s everything about you,” said Alexis Dekany, the Ohio woman whose ex-boyfriend, a former Akron officer, pleaded guilty last year to stalking her. “And when they use it for ill purposes to commit crimes against you — to stalk you, to follow you, to harass you … it just becomes so dangerous.”

Law enforcement discipline and self-monitoring is notoriously opaque and varies jurisdiction to jurisdiction, so it is impossible to know how often these abuses happen. While it would be unfair to say that most police officers violate these laws and rules, it is unfortunately not uncommon either. Police departments should regularly audit the logins and access to sensitive personal data to protect the privacy of individuals and maintain the integrity of their own agencies.

You can read the whole AP story here. You can scroll through many of the cases Cato’s National Police Misconduct Reporting Project found that document the phenomenon on Twitter here. You can follow the project on Twitter at @NPMRP or on the web at PoliceMisconduct.net.

This is a version cross-posted from a piece at PoliceMisconduct.net

Transgender Rights Can Be Vindicated Without Constitution-Bending

The debate over transgender rights has risen in prominence in recent years, with the fight over access to public restrooms and locker rooms receiving particularly heavy public attention. The legal question at the heart of the first such lawsuit to reach the Supreme Court, however, is one not of civil rights law, but of administrative law: Should courts defer to agency interpretations of their own regulations, even when those interpretations constitute major, substantive changes to public policy via informal, non-binding pronouncements?

G.G. is a transgender high school student—minors are identified by letters in sensitive cases—who argues that Gloucester (Va.) High School’s policy disallowing him from using the facilities that correspond with his preferred gender identity violates federal law (Title IX of the Education Amendments) regarding sex discrimination in education. Upon being informed of G.G.’s conflict with the Gloucester County School Board, James A. Ferg-Cadima—a civil servant in the DOE’s Office of Civil Rights (OCR)—decided to get involved. He wrote a letter purporting to interpret the relevant regulation, stating that “[w]hen a school elects to separate or treat students differently on the basis of sex in [situations like this], a school generally must treat transgender students consistent with their gender identity.”

While the district court rejected this interpretation, the U.S. Court of Appeals for the Fourth Circuit deferred to the agency. The Gloucester County School Board now seeks Supreme Court review. Cato, along with three respected law professors (Jonathan Adler, Richard Epstein, and Michael McConnell), has filed an amicus brief supporting that petition.

We do so not because we necessarily oppose OCR’s position as a matter of policy—that’s a question for another day—but because we oppose its unconstitutional method of enacting that policy. OCR seeks to change federal law not through notice-and-comment rulemaking as required by the Administrative Procedure Act, but through an informal, unpublished letter written by a low-level bureaucrat.

Supreme Court precedent under Auer v. Robbins, 519 U.S. 452 (1997), says that courts must give such agency interpretations of their own regulations controlling deference. But deferring in this way incentivizes agencies to write vague regulations because they can be confident that they will then be free to reinterpret them at a later date without having to go through the trouble and expense of the rulemaking process—changing the law with no notice to regulated entities or the general public. Auer deference also allows executive agencies to consolidate both legislative and judicial power by effectively rewriting regulations beyond the scope delegated by Congress and then judging for themselves whether they’ve overstepped that authority.

We call on the Court to take this opportunity to overrule Auer and declare that the judiciary will no longer blindly accept self-serving agency interpretations, but make their own independent determinations based on a searching and reasoned reading of the regulations at issue. Should the Court choose not to overrule Auer, we suggest that—at minimum—it hold that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference. 

The justices will consider whether to take the case of Gloucester County School Board v. G.G. later this fall.

Gun Rights and Due Process Took a Beating Last Night

Despite a rancorous campaign season, there is at least one belief that Donald Trump and Hillary Clinton share: Americans have far too much liberty when it comes to firearms and due process.

Between Senator Clinton’s resurrection of the failed proposal to ban people on terror watchlists from buying guns and Mr. Trump’s advocacy for a nationwide “stop and frisk” anti-gun campaign, gun rights and due process took a beating last night.

 No Fly, No Buy

Hillary Clinton:

[W]e finally need to pass a prohibition on anyone who’s on the terrorist watch list from being able to buy a gun in our country. If you’re too dangerous to fly, you are too dangerous to buy a gun.

Donald Trump:

First of all, I agree, and a lot of people even within my own party want to give certain rights to people on watch lists and no- fly lists. I agree with you. When a person is on a watch list or a no-fly list, and I have the endorsement of the NRA, which I’m very proud of.

Preventing people on the terror watchlists from buying guns has some intuitive appeal, and “our opponents want terrorists to buy guns” is a whopper of a sound bite. But a cursory examination of the watchlisting process reveals the deficiency in this proposal. 

First and foremost, there is a vast chasm between “terrorist” and “person on a terror watchlist,” and due process exists precisely to prevent that chasm from swallowing our liberty whole. 

President Obama Keeps Making Unconstitutional Appointments

Under the default constitutional rule, all federal officials are nominated by the president with the “advice and consent of the Senate.” But sometimes, when an unexpected vacancy arises, appointing and confirming a replacement can take a while. Congress knows this, and that’s why it has enacted—and frequently updated—the Vacancies Act. The latest version, called the Federal Vacancies Reform Act (FVRA), authorizes the president to bypass advice and consent by appointing temporary “acting officers” to fill certain vacancies.

But Congress is keenly aware that such a unilateral appointment power can be easily abused. That’s why acting officers serve under a strict 210-day time limit. It’s also why “a person may not serve as an acting officer” if that person is nominated to be the permanent officer (with an exception only for longtime first assistants).

Nonetheless, in January 2011, President Obama nominated Lafe Solomon to be the permanent general counsel of the National Labor Relations Board (NLRB) while he was serving—and continued to serve—as the acting general counsel. When Solomon later brought enforcement proceedings against an ambulance company, SW General, that company objected on the grounds that Solomon was no longer validly serving as acting general counsel once he was nominated for the permanent job. The U.S. Court of Appeals for the D.C. Circuit agreed based on a straightforward reading of the text of the FVRA, but the NLRB appealed to the Supreme Court.

Cato has filed an amicus brief supporting SW General and urging the Court to adopt a “clear statement” rule when interpreting statutes that let the president bypass advice and consent. The NLRB’s only textual argument is that a phrase in the preamble to the FVRA’s disqualification clause, “notwithstanding subsection (a)(1),” means that the disqualification for permanent nominees only applies to a subset of acting officers.

But as the D.C. Circuit has previously explained, “notwithstanding” means “in spite of,” not “for purpose of” or “with respect to.” Courts shouldn’t strain to read statutes contrary to their natural reading—especially ones that aren’t even ambiguous in the first place. Just the opposite: The Framers recognized that “advice and consent” would be a core check-and-balance mechanism. That’s why it is only through the express act of Congress that the appointment of particular officials can be vested in “the President alone.”

It’s clear that the Framers intended such waivers of advice and consent to be the exception to the rule, and that is indeed how the system has developed. When the Constitution sets such a default equilibrium between two branches of government, the Supreme Court has recognized that the burden must always be on those who would alter that equilibrium. Absent a clear statement of Congress, the constitutional presumption is that both the president and the Senate must assent to the appointment of every high-ranking official, whether serving permanently or for a limited tenure. Giving the benefit of the doubt to an unauthorized appointment like that of Lafe Solomon would turn this presumption on its head.

The Supreme Court will hear argument in NLRB v. SW General, Inc. on November 6. Just as it unanimously did with President Obama’s illegal “recess” appointments to the NLRB, the Court should reject his overreach here.

Event: You Have the Right to Remain Innocent

The police are supposed to protect and serve the public.  Most police procedural dramas on television–perennially among the most popular shows for decades–paint a picture of officers working diligently and honestly to catch the bad guys. Many children are taught that police officers are among the most trusted members of the community and that there is no need to fear them. But is that how police work in real life?

Not exactly.

Police officers are trained to extract information from people whether or not they are criminal suspects. Indeed, one of the more common tricks officers use is getting people to give up the right to refuse a search of their person or property. With consent, police officers can rummage through your pockets and cars–or even your homes–looking for a reason to arrest you. 

For this reason, talking to police when you don’t have to is often a bad idea. So many of the wrongfully convicted people in this country didn’t exercise their right to be silent and were put away because they didn’t think they had anything to hide. How wrong they were.

On Thursday, Cato is hosting an event with Prof. James Duane, the law professor whose lecture to NEVER talk to the police went viral. He’s here to discuss his book on self-incrimination and the criminal justice system, You Have the Right to Remain Innocent. The book is engaging, informative, and easy to read. Cato adjunct Randy Barnett of Georgetown University Law Center will be commenting on the book and it will be moderated by our own Tim Lynch. 

Copies of the book will be sold at the event. You can register for the free event and lunch here. You can join the discussion online using the Twitter hashtag #6ARights. 

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