Topic: Law and Civil Liberties

Second Amendment Legal Battle

There is a landmark Second Amendment case that is working its way up to the Supreme Court. The case is Parker v. District of Columbia and it was argued to the appeals court here in D.C. yesterday. Even if the appeals court upholds the strict handgun ban that is in place here in D.C., the plaintiffs will be anxious to get the case to the Supreme Court. 

For additional background on the lawsuit, go here. For Cato scholarship on this subject, go here.

Brookings Panel on SCOTUS and Global Warming

On Monday, I participated in a panel discussion at the Brookings Institution on the Massachusetts v. EPA case. Other participants were Stuart Taylor; David Doniger of the Natural Resources Defense Council; David Sandalow of Brookings; science journalist Gregg Easterbrook; and environmental transaction lawyer Robert Reynolds (of Alston Bird). A transcript (uncorrected) of the discussion is available here. The discussion turned out to focus less on law, my particular expertise, than on environmental policy, but I found it worthwhile nonetheless. Note there is a discussion of Pat Michaels’ climatologist amicus brief for the EPA at the very end of the transcript, during the Q&A period: the “speakers” in the brief exchange over that brief are David Doniger and me.

Open Business Models and Privacy

I’ve written here before about how Web 2.0 business models, particularly Google’s, are in conflict with current Supreme Court privacy cases denying people a Fourth Amendment interest in information they have entrusted to third parties.

Now comes a very interesting Information Week report on last month’s Web 2.0 Summit:

None other than Google – which has profited enormously from the data users submit to its services and from the data its users generate through use of its services – is thinking seriously about how to give users more control over their data. Though stopping short of a complete data emancipation proclamation at the Web 2.0 Summit, CEO Eric Schmidt said, “The more we can let people move their data around … the better off we’ll be.”

And the better off users’ privacy will be.

Should Public Schools Be Racist?

Can public schools make student assignment decisions based solely on race? That’s just one of the questions before the Supreme Court today in pair of school integration cases (Parents Involved V. Seattle School District No. 1, and Meredith V. Jefferson County Board Of Education).

My one sentence opinion on these policies:  Trying to promote meaningful integration through race-based school assignment policies is like trying to promote love through arranged marriages.

Put less briefly, these cases raise four important questions about race-based assignment:

- Is it legal (the only question the Court will address)?
- Does it do any good?
- Does it do any harm? And,
- Is there a better way to achieve the same goals?

I’ll leave a thorough analysis of the first question to the Justices and to Cato’s legal scholars, though it’s hard for me to fathom how anyone could find purely race-based student assignment decisions consistent with “equal protection of the laws.”

Do forced public school integration policies do any good? It is fair to say that the answer is no, since they have not even achieved the immediate result of integrating schools. After half a century of compulsory integration policies, public schools are little more racially integrated today than they were before such policies were introduced in the early 1970s. It is not even clear that racial balance at the school level is the right goal, since it does not necessarily produce meaningful integration. It is common for students to sort themselves into cliques along racial or ethnic lines, and to have comparatively little interaction with those outside their own group. Schools that seem “integrated” on paper do not always have meaningfully integrated hallways, lunchrooms, or even classrooms.

Do they do any harm? In numerous ways, yes. Attempting to force racial balance in schools through busing not only failed to achieve the immediate goal of public school integration, it dramatically increased residential segregation by driving the (predominantly white) middle class to the suburbs (middle class blacks fled, too, but were fewer in number). Denying students their first choice of public school based solely on race is likely to drive still more families to suburban districts that do not use such assignment policies (or to the private sector), hence further aggravating residential segregation. And clearly, denying children their first choice of school is harmful in and of itself.

Is there a better way? Of course! And better in every respect! The right solution is to introduce a system of financial assistance to ensure that all families have access to the public or private school of their choice. First of all, such programs lead to greater school-level integration and reduced residential segregation. Second, integration in the private sector tends to be more meaningful (children are more likely to choose to sit with peers of different races in private school lunchrooms than is the case in public schools). Third, the most significant educational benefits to private schooling tend to be enjoyed by African Americans, both in achievement and graduation rates.

An overwhelming body of evidence points to parental choice and market incentives as a better way of achieving meaningful integration and improved educational opportunities for minority children. Those truly concerned with advancing the cause of civil rights have to realize that race-based student assignment within a government school monopoly has been and continues to be both ineffective and counter-productive.

Double Standards and Police Shootings

Yesterday, NYT columnist Bob Herbert observed (subscr. required) that the cops involved in the shooting death of Sean Bell have still not been questioned by internal affairs detectives. Compare that situation with a John Q. Citizen who claims to have shot someone in self-defense. The cops want to question John Q. as soon as possible — especially before he “lawyers up,” as they say on TV. By the same logic, internal affairs investigators should want to quickly question cops who are involved in questionable shootings. 

The rules vary from one jurisdiction to the next, but police unions push to postpone the hour in which an officer-suspect must meet with detectives after a shooting. In Maryland, there is an incredible 10-day rule in effect.

My former Cato colleague Radley Balko has been all over the Atlanta shooting. He makes some related points about investigation double standards here. I’ll add another: In Georgia, the police are accorded special rights during grand jury investigations — rights that are not available to ordinary citizens. First, an officer can attend grand jury proceedings. Second, an officer can bring his lawyer into the grand jury room. Third, the officer’s lawyer can cross-examine the state’s witnesses. Fourth, an officer can make a “statement” to the grand jurors after the prosecutor has finished presenting his/her case. (See Title 45-11-4 of the Georgia Code). 

A case can be made that those special procedures can help a bad cop avoid an indictment or conviction. On the other hand, a case can be made that prosecutors have too much influence over grand jurors and that those procedures simply make the process more fair and balanced. Whatever the merits of those arguments, the double standard is inexcusable. If anything, the police should be held to a higher standard than John Q. Citizen.

If policymakers are not ready to end the drug war, they should at least scale back the SWAT raids and no-knock warrants, videotape the raids that do occur, and abolish the double standards that are in place when the police themselves are being investigated for illegal conduct.

News Roundup

  • Local police killed Sal Culosi by accident.  The police union is now howling over mild discipline.
  • Federal police pay restitution to Brandon Mayfield after telling the world he was a terrorist.  Taxpayers foot the bill.  No mention of agents disciplined. But unspecified “reforms” are now in place at the FBI “to avoid a similar mistake in the future.”  Similar assurances followed the Richard Jewell case, but that was then.
  • On the intelligence side, federal agents are fighting the Al-Masri case.  Al-Masri says the CIA mistook him for a terrorist and had him “rendered” to Afghanistan, where he was imprisoned for months, abused and mistreated.  When Al-Masri filed a civil suit against federal officials, the government’s response was that if this lawsuit were to proceed, government secrets would be revealed.  This case is “developing,” as they say …