The Howard Fuller You Probably Don’t Know: An Advocate’s Remarkable Life

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Category: Civil Rights, Education & Law, Milwaukee, Milwaukee Public Schools, Public, Speakers at Marquette
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Fifty-five minutes into Thursday’s one-hour “On the Issues with Mike Gousha” program, prominent education advocate Howard Fuller finally began talking about the last 20 years of his life. Because the conversation was dragging on? Definitely not. It was because Fuller has led such a remarkable life, with so many chapters (and so many stories to tell) that talking about earlier years was appealing and confining even a well-paced interview to an hour was hard.

Many people in Milwaukee associate Fuller with his nationally significant role as an advocate for private school vouchers and charter schools in the last couple decades. But the full story of his life offers not only a remarkable personal narrative, but provocative perspective on the development of political thinking and advocacy among African Americans in the United States since the 1950s.

Fuller, 73, provided a healthy dose of that narrative and perspective in the session with Gousha, Marquette Law School’s Distinguished Fellow in Law and Public Policy, before a capacity audience in the Appellate Courtroom of Eckstein Hall. In much more detail, it is what he provides in his autobiography, No Struggle, No Progress: A Warrior’s Life from Black Power to Education Reform, published this month by Marquette University Press. Read more »

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7th Circuit Affirms District Court Ruling Invalidating Wisconsin’s Marriage Amendment

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Public, Seventh Circuit, Western District of Wisconsin
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same sex hand holdingJudge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.

The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).

Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” (*6).

The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument. Read more »

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Wisconsin Becomes 27th State to Allow Same-Sex Marriage

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Category: Civil Rights, Constitutional Law, Public, Western District of Wisconsin
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On Friday afternoon, June 6, 2014, marriage equality arrived in Wisconsin. Judge Barbara Crabb of the United States District Court, Western District of Wisconsin, held Wisconsin’s “marriage amendment” to be unconstitutional.

Article XIII, section 13 of Wisconsin’s constitution provides that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state.” This amendment was passed by Wisconsin voters in November 2006. Since that time, however, a number of states have extended the right to marry to same-sex couples, and other state bans on same-sex marriages have been struck down by federal judges. At the federal level, the United States Supreme Court last summer struck down the Defense of Marriage Act, thus requiring the federal government to recognize state-sanctioned marriages of same-sex couples.

Earlier this year, the ACLU filed Wolf v. Walker in federal court, challenging the marriage amendment. The plaintiffs in Wolf are eight same-sex couples who live in Wisconsin. Some of those couples have been legally married in other states and want Wisconsin to recognize their marriages; others want to marry and would do so in Wisconsin but for the marriage amendment. On Friday, June 6, 2014, they got their wish. Read more »

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The Gender Wage Gap and Equal Pay Day

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Category: Civil Rights, Feminism, Public
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paydayMy brother and I used to love to play the game of Life. We’d always go to the college route because it didn’t take much to see that going straight into business was going to get you the lowest pay on the board ($12,000, at the time). We’d grumble if we ended up teachers (the next lowest pay at $24,000) and always wished for that coveted doctor salary (the highest pay at $50,000). Ironically, we both became teachers in the real game of Life.  But that aside, one thing in that game was always certain: if we both ended up with the same occupation, the pay was the same every payday, for him and for me.

The real game of Life isn’t like that.  Today is Equal Pay Day—the date on which the average woman earns what the average man made in the preceding year.  Except it’s taken the average woman an extra 98 days to earn it.

We’ve heard much about the gender wage gap; the fact that the average woman makes 77 cents for every dollar a man makes. It’s a number that has stubbornly resisted change for about a decade. And when you break it down further, women of color suffer from an even wider gap than white women when comparing their salaries with white men—64% for African American women and 53% for Latinas. Yes, the gap does close somewhat, if you adjust for education and occupation, but there’s always a gap. Read more »

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Ninth Circuit Rules on Free Speech Issue in Schools

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Category: Civil Rights, Constitutional Law, Education & Law, First Amendment, Public, Race & Law
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clip_image002Late last month, in Dariano v. Morgan Hill Unified School District, the Ninth Circuit held that the Principal of Live Oak High School properly exercised the school’s rights when he offered students wearing T-shirts bearing the American Flag on Cinco de Mayo the choice to either turn their shirts inside out or go home for the day.  The Principal’s action came on the heels of threats of violence from Mexican-American students earlier in the day and the occurrence of a slight physical altercation on Cinco de Mayo 2009.  The students were not disciplined in any way for their decisions to go home rather than turn their shirts inside out.

The court rested its decision on the First Amendment challenge made by the students on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, 393 U.S. 503.  In Dariano, the Ninth Circuit applied Tinker to find that the school could restrict student speech based upon officials’ reasonable belief that the T-shirts would cause a “material and substantial” disruption in school activities.  The Ninth Circuit distinguished the facts of Dariano from those of Tinker by finding that in Tinker, there was no threat of disruption from the wearing of the armbands, whereas there were actual threats of violence throughout the day at Live Oak High School. Read more »

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Hallows Lecture Examines Little Noted, but Pivotal Civil Rights Decision

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Category: Civil Rights, Constitutional Interpretation, Legal History, Public, Race & Law, Speakers at Marquette
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“Remarkable but relatively obscure” – that’s how Judge Paul T. Watford of the United States Court of Appeals for the Ninth Circuit described the 1945 U.S. Supreme Court decision, Screws v. United States. In presenting Marquette Law School’s annual Hallows Lecture on March 4, Judge Watford aimed to lift the decision from some of its obscurity and increase awareness of “the birth of federal civil rights enforcement,” as the title of his lecture put it.

The case began with the vicious and fatal beating of Robert Hall, an African-American man, by M. Claude Screws, the sheriff of Baker County, Ga., and two of Screws’ deputies. Judge Watford said the circumstances of Hall’s death provide a window into how African Americans of that era had to live with the “ever-present reality” of unwarranted violence against them by white law enforcement officers. Even given the many witnesses to Hall’s death, Georgia authorities declined to prosecute Screws and his deputies. But, in what Watford described as an unusual development for that time, a federal indictment was issued against them for violating Hall’s civil rights.

Ultimately, a splintered Supreme Court did not do all that civil rights advocates would have wanted, but the justices upheld the application in situations such as this of 18 U.S.C. § 242, prohibiting violation of civil rights by someone acting under the color of law. The majority of justices rejected the argument that civil rights violations were a matter to be left to the states, although no single opinion commanded a majority.

“Had Screws come out the other way, and been decided against the federal government, federal civil rights enforcement would have been stifled,” Watford said. “Instead, it was given new life, and that helped change the course of history, particularly in the South, in the second half of the twentieth century.”  Read more »

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Historian Tells “Difficult Truths” About Slavery and American Colleges

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Category: Civil Rights, Public, Race & Law, Speakers at Marquette
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“The task of the historian is to tell difficult truths as honestly as we can and to tell help the reader understand both the complexities and the disturbing realities of the past.”

Professor Craig Steven Wilder, head of the history faculty at Massachusetts Institute of Technology, offered that thought as part of describing his new book, Ebony and Ivy: Race, Slavery, and the Troubled History of America’s Universities, during an “On the Issues with Mike Gousha” program at Eckstein Hall on Wednesday. The book serves the purpose he set forth, describing the painful and long history of involvement of colleges and universities in the American colonies and in the United States with slavery and promotion of “scientific racism,” pseudoscience that promotes the superiority of white people.

Wilder described, both in the book and to the audience at Marquette Law School, how major institutions such as Harvard and Yale had long and close relationships with the slave business. That included recruiting the sons of slave traders and plantation owners as students, benefitting from large donations from very wealthy businessmen who were involved in slavery, and promoting thinking that black people and American Indians were inferior and should be suppressed. It also included the fact that many students in the slavery era brought their slaves with them to campus, including in the north. Read more »

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In (Partial) Defense of Liz Cheney

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Cheney sisters

Is it possible to support a loved one’s life choices if you believe those choices should not exist? Consider the following hypotheticals:

Scenario #1: Your teenage daughter tells you she is pregnant from her no-good former boyfriend, and that she wishes to terminate the pregnancy. You are pro-life. Yet you realize that your daughter is the only one who can decide what to do (assuming she is not subject to parental consent laws, and perhaps even if she is). So you drive your child to her doctors’ appointments. You also tell her that despite your fundamental objections to abortion, you will do your best to make peace with her decision.

Scenario #2: You strongly believe children are entitled to information about their genetic parents. For this reason, you think sperm and egg banks should be allowed to work only with donors who consent to the disclosure of their identity and some basic information, and who agree to a minimum number of visits with any genetic offspring. Your sister has a baby conceived with sperm from an anonymous donor. You were beyond thrilled when she told you about her pregnancy, and you love your new nephew to pieces. Your views on the need for regulation of sperm and egg donor banks have not changed.

If these scenarios sound plausible, it is because our moral convictions don’t always dictate our personal interactions. Nor should they. The ability to appreciate that others may embrace values that are different from our own, and to react to their decisions with understanding and even respect, is a sign of maturity. Read more »

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Lewd and Lascivious Behavior Laws: A Milwaukee Story

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Milwaukee, Public, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System
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The Accused

Lee Erickson’s bio attests to his national prominence. Among other things, he served on the Choral Panel of the National Endowment of the Arts and as dean of the American Guild of Organists. But in Milwaukee, he is best known as the conductor of the chorus of the Milwaukee Symphony Orchestra (MSO). Erickson was appointed associate director of the MSO Chorus in 1978, and he has served as the chorus’s director since 1994. By all accounts, the group has flourished under his leadership. The MSO website quotes music director Edo de Waart as saying: “The MSO has the good fortune of having a first-class volunteer chorus. With a chorus of this caliber, the options for performing great works in the repertoire are immense.” Frequent guest conductor Nicholas McGegan has called the chorus “a real gem,” and Tom Strini of the ThirdCoast Digest referred to it as “the jewel in Milwaukee’s cultural crown.”

If you type Erickson’s name into the Google search box, however, these achievements aren’t among the first results that appear on your screen.

Read more »

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Still Dreaming: The 50th Anniversary of the March on Washington

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Category: Civil Rights, Human Rights, Legal History, Public, Race & Law
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untitled2Today marks the 50th anniversary of the March for Jobs and Freedom, more commonly known as the March on Washington. Today, in 1963, an estimated 250,000 people—of all ages, races, and creeds—descended on the Lincoln Memorial in a peaceful show of solidarity for full civil rights for African Americans. It was also the day that Martin Luther King, Jr. gave his famous “I Have a Dream Speech.”

There have been a number of interesting pieces presenting the story behind the march, behind the people who organized it, and the people who participated. You can find some of those pieces here, here, here, here, and here (linking to writer and broadcaster Jean Shepherd’s incredibly interesting radio broadcasts about his participation in the march; the popular movie “A Christmas Story” is based on Shepherd’s autobiographical stories). Or just click on today’s Google doodle to find a host of links.

While reading a good number of pieces on the march, I realized that I cannot recall once in my entire 19 years of public schooling (elementary and secondary schools, plus public college and law school) that I ever read or heard about that event and never, not once, did I ever read or hear King’s speech. Read more »

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(Marriage) Equality and the Popularity Paradox

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=Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition. Read more »

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Edward Snowden: Whistleblower or Traitor?

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Category: Civil Rights, Computer Law, Constitutional Law, Intellectual Property Law, International Law & Diplomacy, Public
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1371935280000-AP-NSA-Surveillance-Snowden-1306221711_4_3_rx404_c534x401Earlier this month, I learned that as a Verizon Wireless customer, my cell phone records, and those of family, may very well be sitting in some National Security Agency (NSA) analyst’s cubicle.

According to The Guardian, which first reported the story June 5, Verizon is under a court order to turn over on an “ongoing, daily basis,” information such as “the numbers of both parties on a call . . . location data, call duration, unique identifiers, and the time and duration of all calls,” and more.  However, no subscriber’s personal information or contents of a call are covered by the order.

Shortly after the story broke, Edward Snowden, a 29-year-old former NSA contractor, came forward as the informant. Time Magazine quotes Snowden as saying, “The public needs to decide whether these programs and policies are right or wrong.” He has since been charged with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person.  Snowden may currently be in Moscow and is rumored to be heading to Ecuador to seek political asylum there.

Because the information that Verizon turns over is considered metadata and not communications, the NSA needs no warrant to access it. Even so, by putting together enough metadata, one can fairly easily put together a profile of who is calling whom, for how long, and from where.  While no actual content is turned over to the NSA, the breadth of this program—code named PRISM—should frighten any American because the information is handed over wholesale; no probable cause or suspicion of wrongdoing needed.  And, boom.  The NSA is keeping tabs on you. Read more »

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