It had been an intense, and at times tense, morning before a full house of more than 200 in the Appellate Courtroom. Meg Kissinger, a reporter for the Milwaukee Journal Sentinel, described “Imminent Danger,” the large project she authored which ran in the newspaper in recent weeks. It described how a revolution in American mental commitment laws, which began with a federal court ruling in a case involving a West Allis woman in 1972, had led to far more people with mental illnesses living outside of mental institutions. Some of them refuse treatment and a few have committed violent acts.

Kissinger and the newspaper had been strongly criticized by some members of the audience who thought the series was sensationalistic and left people with a harmful and wrong image of those with mental illnesses as dangerous. One speaker, Tom Zander, a psychologist, lawyer, and long-time prominent advocate for alternatives to mental commitment, had sharply attacked the series as based on what he regarded as false premises, including the notion that the West Allis case had led to specific horrible crimes. (Zander is an adjunct professor at Marquette University Law School.)

Throughout the morning, which included presentations by experts and by family members of people who had long-term mental illnesses, the difficulties of dealing with mental illness, the failings of the current system for helping people, and the high emotions that the subject raises were clear.

Then it came time for the speech from Roy, who was the academic advisor at Virginia Tech to Seung-Hui Cho, the student who in 2007 killed 32 others on the campus before killing himself. In 2005, Roy spent a large amount of time dealing with Cho, who people in the English department where she taught thought was dangerous. She encouraged him to get treatment, but there was little that could be done to require him to do that. When he did seek counseling, and unrelated to Roy, his situation was not handled well by counselors at Virginia Tech. Roy later wrote a book, No Right to Remain Silent: The Tragedy at Virginia Tech.

Roy said she listened with mouth open to the prior speakers. She said she had respect for what the Journal Sentinel had done and for Kissinger, but she respected those who criticized the newspaper project. She said it was important to keep in the mind the great hostility that exists among many people across the United States to those with mental illnesses. She said she has gotten responses to her work from people who literally want to kill such people.

“You would be amazed at the antagonism and the ignorance and the prejudice that exists in this country,” she said. “One of the great things about this (conference), whatever our differences, and I know we differ from each other . . . But the one thing that is true in this room is that everyone who is here today cares about those who suffer from mental illness. There is no doubt in my mind about that.

“And if we can’t find some viable, creative solutions to some of the problems that are plaguing us, who can? Probably no one. So that is why we have to persevere even when we get impatient with each other.”

“We all come from a place of suffering” if we are involved in these issues, Roy said. “All of us understand something about this situation that needs to be shared.” She called on the people in the room to bring common sense and compassion to their dialog.

She said the Journal Series stories showed “there are more enlightened paths we could take,” including more community-based treatment programs that can help the large majority of those with mental illnesses.

At the same time, she said, more needs to be done to spot and to intervene with those who may be on the path to committing violent acts. Everyone acts like they are surprised when someone such as Cho goes on a killing spree, she said, but there are often people who shouldn’t have been surprised. She asked, “At what point does surprise become denial” that something might have worked to avoid tragedy?

There may be no way to stop all such tragedies, Roy said, but “there are windows of opportunity (to reduce the number), and they present themselves rarely.” She urged those who are involved to work together so that when those chances are presented, the response is successful. “It’s time for us all to respond together,” she said.

The conference was co-sponsored by the Law School and the Journal Sentinel. A video of the event can be viewed by clicking here.

The U.S. Constitution’s 14th Amendment provides, among other things, that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Constitution’s text actually provides no comparable limitation on the federal government, but the U.S. Supreme Court in 1954 held that the 5th Amendment’s Due Process Clause, which does apply to federal law, encompasses a nearly identical guarantee of equal protection.

But this equal protection guarantee gets used with rigor by judges, in their review of challenged laws, only when the government is discriminating on certain grounds (e.g., race or ethnicity), when the law impinges on certain fundamental rights, or, every so often, when a court believes that the government has acted so arbitrarily or perniciously that the government’s action cannot fairly be sustained.

It is the initial set of these circumstances—discrimination on the basis of race, ethnicity, or ancestry—that may seem, at least at first blush, to be rather problematic when it comes the government’s relationship to Indian tribes and their members. After all, tribal membership—which is a prerogative of the tribes, but is in some manner sanctioned by the federal government—almost always requires proof of tribal ancestry, often described in terms of a blood quantum such as one-quarter (a grandparent) or one-eighth (a great-grandparent).

Thus, when the government treats Indians differently from non-Indians, it is effectively, even if indirectly, treating persons differently on the basis of race or ethnicity or ancestry. In turn, one would think that the equal protection guarantee would be operating in full gear every time a law or regulation is enacted or enforced that relies on the distinction of being an Indian tribe or tribal member. To pose the issue more dramatically, why isn’t Title 25 of the U.S. Code, which after all is labeled “Indians,” one large conglomeration of presumptive equal protection violations?

The U.S. Supreme Court unanimously issued its formal answer to this question in 1974 in a case titled Morton v. Mancari, which involved a challenge by non-Indian employees of the Interior Department’s Bureau of Indian Affairs to the Bureau’s promotion preference for Indians. The Court rather matter-of-factly declared that “this preference does not constitute ‘racial discrimination’” and “is not even a ‘racial’ preference.” In a critical footnote, the Court explained that “[t]he preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes. This operates to exclude many individuals who are racially to be classified as ‘Indians.’ In this sense, the preference is political rather than racial in nature.”

In other words, the fact that the tribes are sovereign entities means that relationships, including employment relationships, between the federal government and one or more tribes or its members (who are citizens of these separate sovereigns) can and ought to be viewed as fundamentally political in nature, at least from a constitutional perspective. What the Court sidesteps, of course, is the above-noted reality that the citizenry of these separate sovereigns is overwhelmingly a function of ancestry or race or ethnicity and, as is not the case with foreign sovereigns, the federal government has regularly approved, directly or indirectly, this type of tribal citizenship criterion.

Intellectually, the Mancari opinion can leave one quite disappointed if not perplexed, especially if one focuses narrowly on the Court’s analysis within the confines of equal protection doctrine. There is, of course, more to the complicated history of federal-Indian relations, and thus to the Mancari decision, than any clause-specific analysis can attempt to capture, and the striking inadequacy or superficiality of Mancari’s reasoning can no doubt be partly explained on that basis.

Nevertheless, the reality is that there remains a degree of tension—culturally and constitutionally—inherent in the special relationship between the federal government and the Indian tribes and tribal members within the nation’s borders. Perhaps there will come a time when the Court can speak with greater precision or candor, or within a different doctrinal landscape, and this tension can be diminished as a result. That said, the Court has ventured close to the meaning of Mancari only once in recent decades, in a 2000 case involving Hawaii, and has otherwise shown little interest in either revisiting or clarifying its original reasoning. Thus we are left with Mancari, with the tension that it leaves unresolved and the questions that it leaves unanswered.

For further reading, I recommend Bethany R. Berger, Reconciling Equal Protection and Federal Indian Law, 98 California Law Review 1165 (2010).

One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.

At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban?  The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is.

The expression of political speech receives the greatest protection under the First Amendment when it takes place in a public forum:

Speech restrictions in traditional public forums are generally subject to the most exacting forms of judicial scrutiny. A government entity may never restrict all forms of communicative activity in these spaces. Public forum doctrine also requires that all restrictions based upon the content of the speech must be subject to strict scrutiny; that is, they must further a compelling state interest in a narrowly tailored way. Courts strike down restrictions on speech in traditional public forums when the restrictions do not satisfy strict scrutiny. In traditional public forums a government may, however, impose content-neutral time, place, and manner restrictions as long as those restrictions are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Michael J. Friedman, Dazed and Confused: Explaining Judicial Determinations of Traditional Public Forum Status, 82 TUL. L. REV. 929, 933 (2008).

In contrast, a far lower form of judicial scrutiny applies to evaluate speech restrictions in nonpublic forums. In a nonpublic forum, speech restrictions need only be reasonable and viewpoint-neutral. See id. at 935.

In Gaylor v. Thompson, 939 F. Supp. 1363 (W.D. Wis. 1996), District Judge Barbara Crabb held that the Wisconsin State Capitol is a public forum. This ruling is unsurprising. The interior of the Wisconsin State Capitol building has traditionally been a site for public expression and protest. As a result, any restrictions on speech within the Wisconsin State Capitol building must meet the stricter standard described above.  As stated by Judge Crabb:

In this instance, the state of Wisconsin has opened the capitol rotunda to a variety of displays and exhibits and must be considered a public forum for the purpose of First Amendment analysis. However, that decision does not mean that the state is prohibited from imposing certain regulations on the time, place and manner of the displays. The state can implement such restrictions provided they “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

However, in the case of Bynum v. U.S. Capitol Police Bd., 93 F. Supp.2d 50 (D.D.C. 2000) the court ruled that the United States Capitol is not a public forum.  The court noted that as early as 1946 the U.S. Congress had passed a law banning protests and demonstrations inside of the U.S. Capitol. That law, coupled with a lack of a tradition of public access to the U.S. Capitol building for protests, and the exclusive control that Congress exercises over the District of Columbia, led the court to conclude that the U.S. Capitol is not a public forum:

Which brings the Court to what may seem a somewhat surprising conclusion that the inside of the United States Capitol is a nonpublic forum for First Amendment forum analysis purposes. While in many respects the Capitol must be viewed as sui generis, it appears that its designation as a nonpublic forum most closely conforms with Congress’ intent and the forum-based approach adopted by the Supreme Court. As a nonpublic forum, the government may restrict First Amendment activity in the Capitol so long as the restrictions are “viewpoint neutral” and “reasonable in light of the purpose served by the forum.” [citations omitted]

Because it found the U.S. Capitol building to be a non-public forum, the court evaluated restrictions on speech within the U.S. Capitol building under the more forgiving standard of reasonableness.

However, it is important to note that, even under this lower constitutional standard, the court still found that the only reasonable justification for government rules restricting speech would be the disruptive effect of the protestor’s conduct. Therefore, even under the nonpublic forum standard, the United States Capitol Police were still prohibited from banning expressive conduct that was non-disruptive.

In the case of plaintiff Bynum, he was a pastor who led a small group in prayer and meditation, in a conversational tone, within Statutory Hall and other portions of the Capitol Building. The Bynum court held:

The Court, however, cannot conclude that the regulation is reasonable in light of the purposes it could legitimately serve. While the regulation is justified by the need expressed in the statute to prevent disruptive conduct in the Capitol, it sweeps too broadly by inviting the Capitol Police to restrict behavior that is in no way disruptive, such as “speechmaking . . . or other expressive conduct. . . .” Because the regulation’s proscriptions are not limited to the legitimate purposes set forth in the statute, it is an unreasonable and therefore an unconstitutional restriction on speech. [citation omitted]

The Bynum court issued an injunction ordering the U.S. Capitol Police not to enforce restrictions on First Amendment conduct within the Capitol Building unless they are addressed towards disruptive or obstructive conduct.

Therefore, even under the lesser standards applicable in a nonpublic forum, the First Amendment prevents the U.S. Capitol Police from completely banning small, non-disruptive protests within the U.S. Capitol building. Any statement in the current written policy of the U.S. Capitol Police that purports to completely ban protests inside of the U.S. Capitol cannot be enforced. For example, in one highly publicized recent case, the U.S. Capitol Police apologized to an individual for mistakenly removing her from the Capitol Gallery for wearing a T-shirt with a political slogan.

[Note: Unlike the interior of the U.S. Capitol building, the grounds surrounding the building are a public forum. See Lederman v. United States, 291 F.3d 36 ( D.C. Cir. 2002).]

The bottom line is that it makes a difference for the constitutional analysis of the new DOA policy that the Wisconsin State Capitol is a public forum.

Might the legislators in Madison pass a bill declaring that the Wisconsin State Capitol is no longer a public forum? Not really, because once a location has become a public forum by tradition the government may not arbitrarily remove that status. In any event, such a law would violate the Wisconsin State Constitution, which provides that the doors of the State Capitol shall remain open while the legislature is in session. There is, of course, no analogue for this provision in the federal Constitution. Even though the Wisconsin Supreme Court has recently treated the “open doors” provision of the Wisconsin Constitution in a rather cavalier manner, it is difficult to conceive how any legislative attempt to completely foreclose protests within the State Capitol building could survive a state constitutional challenge.

It should be obvious by now that the permit policies currently in place at the United States Capitol are completely irrelevant to the First Amendment analysis that applies to a public forum like the Wisconsin State Capitol. As I previously wrote, the new DOA policy is overbroad because it allows fees to be imposed on the indigent as a condition of protesting, it vests unbounded discretion in the Capitol police to determine whether to impose advance fees for security costs, and it requires permits from small groups of four or more protesters. These restrictions fail to meet the strict standards used to evaluate limitations on speech in a public forum. Even in a nonpublic forum like the U.S. Capitol, the federal courts have enjoined attempts to prevent small groups from engaging in non-disruptive protests without a permit.

By looking to the policies in place at the U.S. Capitol, the defenders of the DOA policy have fallen into a logical trap. The advocate thinks to himself, “If only I can argue Proposition X, then I will win the argument.” So the advocate searches high and low for evidence in support of Proposition X. Alas, arguing backwards from a conclusion never works.

Here, Proposition X is the assertion that “Restrictions on speech in the United States Capitol reflect what may be constitutionally restricted in the Wisconsin State Capitol.” As the above discussion illustrates, this assertion rests upon a myriad of mistaken assumptions.

By drafting an overbroad policy with little or no guidance for how the security staff is supposed to implement it, the Department of Administration has placed the Wisconsin State Capitol Police in a very difficult position. Rather than continue in its attempts to justify restrictions that indefensibly infringe upon the First Amendment rights of citizens, the DOA should withdraw its new policy and start from scratch.

The most controversial aspects of the new policy are the fact that it applies to small groups of individuals (four or more), the fact that it would require the filing of a permit application 72 hours in advance of any planned event, and the fact that it allows the state to require the advance payment of a bond to cover security costs when such payment is determined to be necessary by the State Capitol Police. The rules contain an exception to these requirements for a defined category of “spontaneous events.”

The requirement that a fee be paid in advance of the exercise of First Amendment rights constitutes a prior restraint on the exercise of free speech. See Forsyth County, Ga. V. Nationalist Movement, 505 U.S. 123 (1992). Advance fee requirements are recognized as a prior restraint because some individuals will forego the exercise of their rights rather than apply for advance permission or pay the fee. Prior restraints on the exercise of free speech are highly disfavored under constitutional law. While they are not per se unconstitutional, prior restraints will be subjected to heightened scrutiny. The Supreme Court has articulated the following standard for evaluating the constitutionality of government permitting schemes:

Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

Nathan Kellum, Permit Schemes: Under Current Jurisprudence, What Permits Are Permitted?, 56 DRAKE L. REV. 381 (1985).

The Supreme Court’s precedent in the First Amendment area has been criticized by academics for lacking a clearly articulated standard that successfully reconciles the Court’s various (and varied) holdings. This is a common complaint in areas such as First Amendment jurisprudence, where the Court’s decisions are typically closely tied to the particular facts of the case before it. Nonetheless, in the context of fees charged in advance as a condition of exercising the right of free speech, the Court’s precedent establishes at least three principles:

1. Fees Cannot Be Imposed If They Deny Speech to the Indigent

The Court has emphasized that the indigent cannot be denied their First Amendment rights solely because they are unable to pay a required fee. The lack of an “indigency waiver” is not fatal in circumstances where an alternative means of expression exists that is available to the demonstrator, however where no such alternative exists there is ample precedent striking down restrictions on speech that do not take into account the demonstrators ability to pay. See Sullivan v. City of Augusta, 511 F.3d 16, at footnote 15 (1st Cir. 2007).

This conclusion is not surprising. As summarized by Professor Eric Neisser:

In addition to what is formally referred to as the public forum doctrine, there are other strands of law designed to maintain ready access to opportunities for public expression. For example, even avenues of expression not strictly designated as public forums, such as the voting booth or the elective ballot, must be kept open to persons or groups of limited income, although it remains unclear which avenues will be held subject to indigents’ access and how poor one must be to qualify for protection. Clearly however, financial obligations cannot be fixed at a level or applied to groups or persons in a manner that effectively bars access to protected forums.

Eric Neisser, Charging for Free Speech: User Fees and Insurance in the Market For Free Ideas, 74 GEO. L. J. 257 ( 1985).

The State Capitol building is a unique location for the expression of protected speech, and there is no equivalent alternative location available to would be protestors.

2. Fees May Not Be Imposed By Government Officials Left With Unbounded Discretion

The Supreme Court has struck down advance payment requirements when officials are left with unbounded discretion to determine when the fee may be required and when it may be waived. Instead, the Court has demanded that the official charged with implementing the fee requirement must be given objective criteria to guide their decision. The ability to impose or waive a fee without any objective criteria allows the government official the ability to favor one viewpoint over another, and unbounded discretion transforms an otherwise content neutral regulation into a regulation that is directed at the content of the speech.

In the Forsyth County, Ga. Case, the Supreme Court struck down a permit process that gave the county administrator unbounded discretion to assess advance fees from a nominal amount up to $1,000 in order to defray security expenses. The Court said:

Based on the county’s implementation and construction of the ordinance, it simply cannot be said that there are any “narrowly drawn, reasonable and definite standards” guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time–or even whether to charge at all–is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county’s established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official. [citations omitted]

The new DOA policy allows the State Capitol police to determine, with no objective criteria, whether or not to impose advance fees for public safety and in what amount, all in the context of groups containing as few as four protestors.

There is some argument over whether fee policies must still contain written objective criteria for police in the context of parades and marches. The First Circuit has held that no objective written criteria are necessary when police officials estimate costs related to traffic control, street closures and parade security. See Sullivan v. City of Augusta, 511 F. 3d 15 (1st Cir. 2007). However, the Ninth Circuit has disagreed and ruled that the delegation of unbounded discretion to the police is a violation of the First Amendment even when it occurs in the parade context. Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation v. City of Seattle, 550 F.3d 788 (9th Cir. 2008). And, in the context of a march and rally, the Eleventh Circuit struck down a regulation that allowed police to pass along the costs of additional police protection to those demonstrating in a public forum as a pre-condition to the granting of a permit. See Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th Cir. 1985).

Regardless, the new DOA policy does not apply to parades, but rather to government facilities and in particular the State Capitol building. There is no dispute that the lack of objective criteria for the police to determine whether extra security is required violates the Forsyth prohibition on unbounded discretion when it occurs outside of the parade context — such as when advance fees are charged to cover security for campus speeches, Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010). See also Driver v. Town of Richmond, 570 F. Supp.2d 269 (D. R.I. 2008) (involving unbounded police discretion to issue permits for permission to post signage).

3. Fees May Only Be Imposed When Necessary to Advance Significant Government Interests

The government may not use fees on First Amendment activities as a revenue raising device, but instead must clearly demonstrate that any fee is necessary to advance a legitimate interest in regulating the time, place and manner of speech. See Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943). The state does have a significant interest in safeguarding public safety and property. However, the new DOA policy allows the police to charge for extra security for groups as small as four persons.

The legitimate state interest in safeguarding public safety is not advanced by charging advance fees for groups of such small size. The state cannot demonstrate that a group of four persons will of necessity require the assignment of any extra security at all. Parades, rallies and concerts, where large numbers of attendees are expected, may justify the need for extra security and therefore may provide the state with a sufficient interest in charging an advance fee for security expenses. See, e.g., Thomas v. Chicago Park District, 534 U.S. 316 (2002) (upholding advance permit requirement for events of 50 or more people). However, the fact that fees may be imposed on events attended by large groups does not lead to the conclusion that fees may be imposed in advance any time the state wishes.

The Supreme Court has expressed concern over regulations that act to restrict the political expression of individuals or of small groups of people. In the case of Watchtower Bible & Tract Society v. Village of Stratton, 536 U. S. 150 (2002), the Supreme Court struck down a village ordinance that required advance permitting of every door to door solicitor, saying:

The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to “residents casually soliciting the votes of neighbors,” or ringing doorbells to enlist support for employing a more efficient garbage collector.

The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.

Reviewing the First Amendment precedent, attorney Nathan Kellum concludes:

The constitutional hurdle of demonstrating a legitimate governmental interest before any regulation of speech can be constitutionally valid leads to inquiries about the size of the group impacted by a permit scheme and whether the government has an interest in regulating singular individuals and small gatherings. One of the most frequent justifications for the use of a prior restraint is the preservation of public safety and order. This oft-cited purpose of safety and order only gains practical legitimacy, however, if the ordinance in question seeks to regulate large group activities, such as parades and rallies. Courts entertaining this issue routinely hold that a permit requirement imposed on individual or small group speech to be overly burdensome.

See Nathan Kellum, Permit Schemes, supra.

The Ninth Circuit summarized the precedent on the issue in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009):

It is therefore not surprising that we and almost every other circuit to have considered the issue have refused to uphold registration requirements that apply to individual speakers or small groups in a public forum. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039 (9th Cir. 2006) (“As the cautionary language in our earlier opinions indicates, the significant governmental interest justifying the unusual step of requiring citizens to inform the government in advance of expressive activity has always been understood to arise only when large groups of people travel together on streets and sidewalks.”); see also Grossman, 33 F.3d at 1206 (holding that the possibility that the ordinance at issue could reach “the actions of single protestors” rendered it unconstitutional); Rosen, 641 F.2d at 1247-48 (invalidating a one-day advance registration requirement because it applied to individuals and therefore “regulate[d] far more than mass conduct that necessarily interferes with the use of public facilities”); Cox v. City of Charleston, 416 F.3d 281, 285 (4th Cir. 2005) (“[U]nflinching application” of a permitting requirement “to groups as small as two or three renders it constitutionally infirm.”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“[A]pplying the permit requirement to groups as small as ten persons compounds our conclusion that the parade permit ordinance is not narrowly tailored [to advance the government's interest in protecting the safety and convenience of users of public sidewalks and streets.]“); American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down a permit requirement as “hopelessly overbroad” on the ground that the requirement could conceivably apply to groups as small as “two or more persons”).

In summary, the new DOA policy is susceptible to legal challenge on the grounds that it is a facially overbroad infringement upon the First Amendment rights of protestors. This is because, as written, the new policy can be applied in a way that allows the state to impose advance fees on the indigent, on the basis of unbounded police discretion, and in circumstances where the size of the group affected does not justify any purported state interest in public safety. Potential plaintiffs do not need to wait and bring an “as applied” challenge to the law when it is actually applied against them in an unconstitutional fashion. This is because there is a long established First Amendment exception to the “as applied” rule that will permit a facial challenge to be brought. See Forsyth County, Ga., supra.

The federal courts have approved advance fee requirements in certain contexts, such as overnight camping, parades and rallies. However, courts have consistently rejected regulations on the exercise of free speech that are so broad that they reach expressive conduct by small groups of people, whether by regulatory design or because government officials possess the discretion to apply the rules in such a fashion. The drafters of the new DOA policy seem to have taken language from a variety of permitting policies from other jurisdictions that have survived constitutional challenge, without regard to whether advance fees were imposed by those policies, or the relative size of the groups affected by the policies, or the context in which public expression was subjected to those policies. It is a mistake to assume that because advance fees may be imposed under the First Amendment in some circumstances that fees therefore may be imposed any time the state wishes.

The state is not prevented from charging advance fees that are tied to objective criteria, such as the number of anticipated attendees, and that do not violate the three principles discussed above. The state is not prevented from assessing fees after the fact, in order to receive compensation for any damage actually caused by protestors. However, any prior restraint on the exercise of free speech should be designed carefully and crafted narrowly. The new DOA policy announced on December 1 does not meet this standard.

It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies.

In the first of the new cases, Fisher v. University of Texas, Abigail Fisher and a number of other unsuccessful white applicants to the undergraduate program at the University of Texas argue that they were denied the opportunity to attend the university because of its policy of taking race into account in making some of its admissions decisions.

The University of Texas uses an admissions system that guarantees admission to students who graduate in the top ten percent of their Texas high school classes. This system accounts for 81% of admitted students, but the other 19% are chosen through a competitive process in which race is taken into account as one of multiple factors used to determine which students will be offered admission. The policy was adopted following the Supreme Court’s decision in Grutter in which a similar practice by the University of Michigan Law School was upheld.

Fisher’s suit was dismissed by the federal district court on the grounds that this issue had been resolved by Grutter. On appeal to the Fifth Circuit, the three-judge panel unanimously upheld the decision of the district court, although one of the three, Judge Emilio Garza, filed a concurrence in which he forcefully questioned the correctness of the Grutter decision.

Fisher then petitioned for an en banc hearing, which was denied, although by a narrow vote of 9-7, with Chief Judge Edith Jones filing a dissenting opinion which was joined by four of her colleagues.

Fisher then petitioned to the United States Supreme Court for a writ of certiorari, and the petition remains on the Court’s current docket. To date, the University of Texas has, somewhat mysteriously, refused to respond to the petition, although at least six amicus briefs have already been filed. The Supreme Court has already taken the unusual step of formally requesting a response from the University, which now has until November 30, 2011, to file a reply or request an extension of the time to do so.

Should cert be granted, it is still possible that Fisher could still be argued before the full court during this term.

Two questions jump out in regard to this case. The first has to do with the personnel changes on the court since 2003. Is there now a five-justice majority willing to overturn the Court’s Grutter decision? Many observers think there is. Presumably, Chief Justice Roberts shares the affirmative action views of his predecessor Chief Justice Rehnquist, but there are strong reasons to believe that Justice Alito’s views are more in line with those of strongly anti-affirmative action justices Scalia and Thomas than they were of his predecessor, Justice Sandra Day O’Connor. However, the matter is somewhat complicated by the increasingly unpredictable views of Justice Kennedy, who could conceivably shift over to the pro-affirmative action side.

The other interesting issue raised by Fisher involves a question of standing. No court has yet ruled that either Abigail Fisher or any of her other co-appellants would have been admitted to the University of Texas had it not been for the school’s practice of taking race into account. This is a recurring problem in reverse discrimination cases: how does a plaintiff establish conclusively that he or she has Article III standing to challenge an allegedly unconstitutional admissions system that may (or may not) have affected them adversely?

It is possible, of course, that the trial court could reach such a conclusion, as it apparently did in Bakke and Grutter, but in this case there was really never an opportunity to do so, since the district court believed the question to be irrelevant under Grutter.

The Supreme Court may (or may not) have reached this issue in its 1999 decision in Texas v. Lesage, a Section 1983 action filed by an unsuccessful white applicant for a graduate program at the same University of Texas. In that case, the Supreme Court unanimously dismissed the plaintiff’s action, but there the trial testimony had included evidence that Lesage would not have been accepted to the program, even if all of the available slots had been filled by Caucasians. (My friend Vik Amar has written a very intelligent commentary on this question which can be found at http://verdict.justia.com/2011/10/28/an-update-on-the-fisher-v-university-of-texas-affirmative-action-case.)

The second of the two new cases involves an amendment to the Michigan state constitution enacted after the Supreme Court’s decision in Grutter. The amendment was designed to achieve what the Gratz-Grutter litigation had not. Similar state constitutional amendments had earlier passed in California and Washington.

The Michigan Civil Rights Initiative, formally known as Proposal 2, was a proposed amendment to the Michigan Constitution that was adopted by a public referendum in 2006, by a vote of 58% to 52%. The amendment prohibits any agent of the state from discriminating against, or giving preferential treatment to, anyone on the basis of race, sex, color, ethnicity, or national origin.

The Proposal 2 amendment was sponsored by a number of groups, including noted black anti-affirmative action activist Ward Connerly and the Michigan Civil Rights Initiative, whose executive director was Jennifer Gratz, the successful plaintiff in Gratz v. Michigan.

A number of different legal challenges have been filed against Proposal 2. An effort to have it removed from the ballot in 2006 as inconsistent with the federal Voting Rights Act was unsuccessful; however, after its adoption, it was again challenged on the theory that the amendment violated the Fourteenth Amendment to the United States Constitution.

In 2008, the United States District Court for the Eastern District of Michigan upheld the constitutionality of the Michigan Amendment, but that decision was recently reversed by a 2-1 decision of the Sixth Circuit Court of Appeals in Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. At the end of June, the court ruled that the amendment “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” The state of Michigan has petitioned for a hearing en banc, and as of the end of November, no ruling on the request has been issued.

While the Michigan case will not be part of the Supreme Court’s 2011-12 docket, it may well hear the matter the following year.

The Supreme Court has avoided making a conclusive ruling on the constitutionality of race-based affirmative action for almost forty years now, but the issue has a way of coming back time after time. However, with all the evidence pointing toward a sharply and evenly divided court, it is unlikely that these cases, if they are in fact heard, will be the end of the story.

Interestingly, the language of the 13th Amendment, viewed acontextually, does not foreclose their claim.  It states simply that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”  It does not speak of persons or citizens, as do so many other constitutional guarantees, but rather focuses on and prohibits the acts of slavery and involuntary servitude.  Moreover, while the Thirteenth Amendment (or at least its prohibition on slavery) was substantially drafted and ratified for the benefit of black Americans in slaveholding states, the text is not limited to any particular group or class.  Certainly we have seen other constitutional provisions, such as the guarantees of due process and equal protection, judicially extended well beyond their originally envisioned scope.

Does this mean, then, that the orcas’ lawsuit stands a fair chance of prevailing?  I highly doubt it.  Despite the complaint’s concededly sympathetic recitation of facts concerning the species-specific harms visited upon the orcas in question, the lawsuit appears to face at least two serious potential obstacles.

First, while it is true, as alleged, that section 1 of the 13th Amendment has in some instances been described as self-executing (i.e., not needing the medium of a federal enforcement statute), that characterization was often made in particular circumstances at particular points in time and should not today be accorded significant weight.  In fact, the bulk of contemporary federal court authority, generally from district courts, suggests that there is normally not a private cause of action to enforce the 13th Amendment.  As stated by a district judge in the Southern District of California—the very court where the orcas’ suit has been filed—“[f]ederal courts have held that the Thirteenth Amendment does not give rise to an independent cause of action against private parties; plaintiffs must instead base such claims on one of the statutes implementing the Thirteenth Amendment . . . .”  Del Elmer; Zachay v. Metzger, 967 F. Supp. 398, 402 (S.D. Cal. 1997).  To be sure, “[n]either the Supreme Court nor the Ninth Circuit nor, for that matter, any circuit at all, has directly addressed this question.”  Jane Doe I v. Reddy, No. C 02-05570 WHA, 2003 WL 23893010, *9 (N.D. Cal. Aug 04, 2003).

Importantly, the orcas’ suit is filed directly under section 1 of the 13th Amendment and not under one or more federal enforcement statutes authorized by second 2 of that Amendment.  While it may be that these statutes are not broad enough to cover all of the harms alleged in the suit, the more likely reason for avoiding the use of the federal statutes is that they, unlike the 13th Amendment, do employ terms like “person” and thus would pose a serious obstacle to would-be plaintiffs, like orcas, that are not persons in any ordinary sense of the word.

The second serious obstacle potentially facing the orcas’ lawsuit is that of line-drawing.  The judiciary has always experienced unique difficulty defining or delineating rights-bearers under the Constitution, even when the alleged rights-bearers are arguably or even undeniably human beings.  To ask courts to venture via the Constitution into the realm of non-human species, which is exactly what the orcas’ lawsuit is asking, will strike many if not most judges as at best unpalatable and at worst improper.  It would demand of them entirely new doctrines and analysis, would likely expand their docket immensely, and would embroil them in controversies that, at least in the short run, could cause significant damage to their institutions.

Perhaps fifty or one-hundred years from now, constitutional or other legal claims on behalf of non-human beings will be commonplace.  At this point in time, however, there is good reason to think that such claims are beyond the capacity of the written law and beyond the capability of courts to handle them with any degree of competence, consistency, and, not least, authority.

A. The Right to Vote Under the U.S. Constitution

The text of the United States Constitution does not expressly guarantee the right to vote. Nonetheless, in Harper v. Virginia State Board of Elections the United States Supreme Court ruled that the right to vote in state elections is a fundamental right protected by the Equal Protection clause of the United States Constitution. A large body of precedent has reaffirmed the primacy of the right to vote under our constitutional structure, holding that the ability to vote cannot be arbitrarily abridged or denied to groups of otherwise legitimate voters.

Notwithstanding the recognition that the right to vote is fundamental, the United States Supreme Court has declined to apply strict scrutiny to all election regulations which place some minor, even-handed burden on the ability to cast a ballot. Beginning in the case of Anderson v. Celebrezze, and continuing in the case of Burdick v. Takushi, the Court has held that state election regulations are subject to a sliding scale of judicial review, with laws that significantly burden the right to vote receiving greater scrutiny than laws of general application which operate merely as an inconvenience to voters. This sliding scale of scrutiny has come to be called the Anderson/Burdick test.

B. Crawford v. Marion County Election Board

The key United States Supreme Court case analyzing the constitutionality of state voter ID laws is the 2008 case of Crawford v. Marion County Election Board. In 2005, Indiana passed a state law requiring every person casting a ballot in person to present a government-issued photo ID. The law did not apply to votes cast via absentee ballot. Various exemptions allowed indigent individuals and those with religious objections to being photographed to cast a provisional ballot which would be counted if the voter traveled to the circuit court clerk within 10 days after the election date and executed an affidavit. Under the Indiana law, residents are entitled to free state-issued photo IDs.

The Indiana Democratic Party, among others, filed a lawsuit challenging the Indiana Voter ID law. The plaintiffs alleged that the Indiana Voter ID law was unconstitutional on its face because the requirement of a photo ID imposed a substantial burden on the right to vote as guaranteed by the Fourteenth Amendment.

In a fractured ruling by the United States Supreme Court, a total of six Justices voted to uphold the Indiana Voter ID law but none of the written opinions was joined by more than three Justices. In a plurality opinion authored by Justice Stevens, and joined by two other justices, the Court applied the Anderson/Burdick balancing test. The plurality opinion weighed the legitimate state interests of Indiana in passing the regulation against the burden that the law’s requirements placed on those wishing to vote. Justice Stevens concluded that the plaintiffs had not provided evidence of widespread impediments to voting under the law sufficient to outweigh the state’s interest.

The plurality opinion identified Indiana’s interests in passing the law as being the deterrence and detection of voting fraud, the prevention of voter fraud, and the safeguarding of voter confidence in the integrity of the electoral process. Justice Stevens accepted the validity of these state interests as unquestionably legitimate. The plurality did not require Indiana to provide evidence of past voter fraud, nor did it demand evidence of the greater potential for fraud associated with in-person voting as opposed to absentee voting, nor did it ask Indiana to provide evidence of the asserted connection between voter ID legislation and increased voter confidence. In fact, the plurality expressly noted the absence of any evidence in the record to support the existence of these three state interests. Yet it found these state interests to be legitimate nonetheless.

Against these interests, the plurality weighed the burdens imposed by a photo ID requirement imposed on voters. Justice Stevens noted that IDs can be lost or stolen, but considered the denial of the right to vote under these circumstances to be infrequent. The plurality found that the fact that Indiana provided free IDs meant that the most common burden faced by those who did not already own a photo ID would be limited to traveling to the department of motor vehicles, gathering the required underlying documentation, and posing for a photograph. While certain individuals might find these actions burdensome, for most of the population they would be nothing more than an inconvenience.

For those limited number of persons who did find compliance with the law to be more difficult than the average voter, the plurality opinion stated that the Indiana statute’s grant of a right to cast a provisional ballot without obtaining a photo ID would mitigate the severity of the burden caused by an ID requirement. The lack of a serious burden on a widespread basis, and the fact that the law’s burdens were imposed on all voters on an even-handed basis, led Justice Stevens to conclude that the plaintiffs had failed to meet the heavy burden of persuasion necessary to overcome Indiana’s interests. Therefore, the plaintiffs failed in their facial challenge to the Indiana Voter ID law.

A facial challenge to a statute asserts that the law may rarely if ever be constitutionally applied. To succeed, a plaintiff must demonstrate that there are no possible circumstances under which the law is valid. In contrast, an “as applied” challenge is a claim that a statute is unconstitutional in a particular case. The plurality opinion left open the possibility that a challenge to the Indiana Voter ID law might be possible on an “as applied” basis if a particular voter or group of voters could demonstrate that the law imposed an unjustified burden specifically on them.

In a concurrence, Justice Scalia argued that the plurality opinion should have applied the Anderson/Burdick test in a manner that is even more deferential to the state. He argued that only laws that “severely” burden voting rights should be subjected to heightened judicial review. Because he viewed any generally applicable, non-discriminatory voting regulation as incapable of placing a severe burden on the exercise of voting rights, Justice Scalia argued that the Court should defer to the state legislature’s judgment that the regulation is justified. He concluded that neither a facial challenge to the Indiana law nor an “as applied” challenge should be permitted.

In the absence of facts demonstrating a severe burden, Justice Scalia would hold that the Constitution requires nothing more than that the Indiana law not significantly increase the typical burdens associated with the voting process, and that Indiana identify an interest in the law sufficient to justify any minimal burden imposed. Only when state laws impose severe and unjustified burdens on the right to vote, according to Justice Scalia, should the Court proceed to apply heightened scrutiny to the state law.

However, only two Justices joined Justice Scalia’s concurrence. Instead, the three Justices in the plurality and the three dissenting Justices applied the Anderson/Burdick test in a way that required the Court to balance state interests against the burden placed on the right to vote in all cases, however slight the burden, and not just in cases where the particular burden might be characterized as “severe.” In addition, these six Justices also appeared to agree with the proposition that, even if the plaintiffs in the Crawford case had failed to meet the high burden required to prevail on a facial challenge to the law, it remained an open issue whether the Indiana law might be unconstitutional on an “as applied” basis.

Two dissents were filed in the case. The dissenting opinion authored by Justice Souter (joined by Justice Ginsburg) argued that the proper application of the Anderson/Burdick test requires the state to provide factual evidence in support of its proffered interests before the Court will allow the state interest to overcome a demonstrated burden on the right to vote. The dissenting opinion authored by Justice Breyer argued that Indiana had failed to explain why it could not satisfy its purported interests in a photo ID and still permit the use of a broader array of IDs, such as student IDs or employer-issued badges.

The Crawford decision has been criticized for misapplying the Anderson/Burdick test. Critics have argued that the plurality opinion in Crawford applies the balancing test in an overly deferential way that approximates mere rational review of the Indiana statute. However, the Court’s original explication of the Anderson/Burdick test indicates that, while something less than strict scrutiny should be applied to laws uniformly burdening voting rights, the Court intended to preserve some form of heightened scrutiny in order to ensure that the state can document that the voting regulation at issue is justified. These critics believe that the dissenting Justices in Crawford applied the Anderson/Burdick test correctly.

Admittedly, the original language the Court quotes setting forth the Anderson/Burdick test is vague and confusing, leading other critics to focus not on the Crawford decision but instead cast blame on the Anderson/Burdick test itself. These critics argue that, by adopting a balancing test for challenges to non-severe and even-handed restrictions on the ability to vote, the Supreme Court’s rulings in Anderson and Burdick essentially overturned prior precedent recognizing that the right to vote was a fundamental right. In addition, the Anderson/Burdick test itself can be criticized for allowing a judge’s subjective opinion of what is and is not a “severe” restriction on the right to vote to determine the standard of judicial review.

C. The Implications of the Crawford Decision for Future Litigation

In the wake of the Crawford decision, it is clear that four significant hurdles stand in the way of any future litigation challenging a state voter ID law. First, the Court has imposed a heavy burden on plaintiffs who wish to bring a legal challenge to a state voter ID law. To succeed, plaintiffs would have to provide factual evidence of widespread and significant burdens that a photo ID requirement actually imposes on individuals who wish to vote. In addition, should a plaintiff in such a case actually acquire a photo ID at any time after filing suit, they would no longer be injured by the law and their claims would become moot. In other words, in order to succeed in a challenge to the law the plaintiffs must provide both factual evidence of widespread barriers to the possession of a photo ID and, concurrently, the plaintiffs’ ongoing inability to successfully obtain an ID. Gathering this empirical data and identifying the appropriate plaintiff(s) will not be easy.

Second, the Crawford plurality rejected the plaintiff’s argument that all laws burdening the ability to cast a ballot should be subjected to strict scrutiny. Instead, the plurality applied a balancing test whereby the court must weigh the burden imposed by a voter identification law against the relevant and legitimate interests of the state. A balancing test is inherently subjective, and gives individual judges leeway to apply pre-existing biases, opinions and/or political philosophies to the weighing process.

Third, the Crawford plurality explicitly found that the state’s interest in preventing potential fraud, and in maintaining public confidence in the integrity of the voting process, was sufficient to outweigh the burdens imposed by the Indiana law. The state of Indiana was not required to produce any evidence of actual voting fraud in prior elections.

Finally, none of the typical burdens associated with voter ID laws was found to be sufficient to outweigh the state’s interest. The Crawford plurality recognized that voter identification laws may require persons to travel significant distances to motor vehicle licensing centers, and that many people would find it difficult to reach these centers using public transportation, and that the elderly and the indigent might find it difficult to obtain identifying documents such as birth certificates. None of these typical burdens associated with a photo ID requirement were found to be sufficient enough to outweigh the interests of the state of Indiana.

D. Possible Legal Theories Still Viable to Under the U.S. Constitution

Despite the barriers to future litigation erected by the Crawford decision, there remain at least two viable legal theories by which to challenge a state voter ID law under the U.S. Constitution.

1. Proof of a “Disguised” Poll Tax

In Harper v. Virginia Board of Elections, the U.S. Supreme Court found that a state law conditioning the right to vote on the payment of a poll tax was an invidious restriction on the right to vote, because the ability to pay the poll tax is unrelated to any legitimate voter qualification. The Crawford plurality opinion did not purport to modify or overrule this precedent, and, in fact, suggested that the failure to provide free photo IDs would have been fatal to the Indiana Voter ID law.

2. Possible “As Applied” Challenges to a Voter ID Law

A successful “as applied” challenge to a Voter ID law would require empirical data on the number of registered voters who do not already possess an acceptable photo ID and, in addition, either cannot obtain an acceptable ID under the law or else would face a significant burden in obtaining an acceptable ID.

On the one hand, it might be possible to provide empirical evidence that under the Wisconsin Voter ID law a distinct population of Wisconsin residents is absolutely denied the right to vote. For example, individuals who are homeless and who live on the street may find it impossible to satisfy the requirement to demonstrate residency in order to obtain a photo ID. However, specific data on the number of homeless persons who live on the street in Wisconsin, and who cannot provide acceptable evidence of residency under the law, would be difficult to collect.

More likely, it might be possible to gather empirical evidence demonstrating that distinct populations within the state face a more significant burden under the law than the typical voter. Post-Crawford, an “as applied” challenge might be possible on behalf of those who 1) find it prohibitively difficult to travel long distances to nearest available department of motor vehicle office; 2) lack access to mass transit or other forms of transportation (especially in in rural areas); 3) or are unlikely to possess the underlying documentation necessary to obtain a photo ID (passport, birth certificate, etc.) due to the passage of time or due to geographic distance from their place of birth.

Distinct populations that might share one or more of these characteristics include the elderly, the disabled, the indigent, students who are residents but who are from out of state, and voters whose current name differs from the name on their birth certificate. A successful “as applied” challenge might be brought on behalf of one or more of these groups if there were empirical evidence that 1) large numbers of persons in these groups did not already possess an acceptable photo ID and 2) complying with the law would impose a significant burden on these individuals.

E. The Voter ID Law and the Wisconsin Constitution

In general, state laws which set forth the time, place and manner in which elections are conducted will be upheld provided that they do not impermissibly infringe upon a fundamental right, do not apply unequally to state residents, and do not contravene express provisions in the state constitution that limit the legislature’s ability to place restrictions on the exercise of the franchise.

1. Equal Protection

An argument can be made that state laws requiring voters to present a photo ID when voting in person violate the equal protection clause of the state constitution because not all voters are equally burdened. In particular, absentee voters are not required to possess or present a photo ID in order to vote. In addition, some state supreme courts have interpreted the equal protection clause of the state constitution to provide a broader scope of protection than the equal protection clause of the United States Constitution.

For example, in Weinschenk v. Missouri, the Missouri Supreme Court struck down the Missouri Voter ID law, relying in part on the fact that the Missouri Constitution has been interpreted to provide greater equal protection against unequal rights than the federal Constitution. The Weinschenk opinion also noted that the equal protection clause of the Missouri Constitution required the court to apply strict scrutiny to state laws that impinge on fundamental rights, and that Missouri precedent provided a strong basis for concluding that the right to vote is a fundamental right protected under the Missouri Constitution.

Wisconsin courts often have used language suggesting that the right to vote is a fundamental right protected by the Wisconsin Constitution. Where a state law touches upon important individual rights, the Wisconsin Supreme Court would normally apply a heightened form of judicial scrutiny in order to assure a close fit between the law’s means and the law’s ends. This analysis would suggest that the Voter ID law should receive heightened scrutiny under the equal protection clause of the Wisconsin Constitution.

However, precedent interpreting the Wisconsin equal protection clause does not typically grant that clause a more expansive scope than the 14th Amendment of the United States Constitution. Instead, Wisconsin precedent generally emphasizes that Wisconsin’s own equal protection provision is to be interpreted as co-extensive with the equal protection provision of the federal Constitution. In the absence of strong precedent indicating that the state constitutional provision has a broader scope than the 14th Amendment of the U.S. Constitution, it appears unlikely that a Wisconsin court would apply strict scrutiny to the Wisconsin voter ID law. Instead, were it to reach the issue, the Wisconsin Supreme Court might be expected to follow the approach used in the Crawford decision and to evaluate any state law regulating the right to vote under a more deferential balancing test.

2. Article III Right to Vote

A second, although related, argument in favor of expanded protection of voting rights under a state constitution is that constitutional provisions listing the qualifications of voters are the exclusive permissible qualifications on the right to vote. Therefore, the state legislature may not make substantial changes to these qualifications, or add additional qualifications, in the absence of an amendment to the constitution. This argument stresses that the legislature lacks the power under the state constitution to amend the list of voter qualifications contained in the constitutional text merely by passing a statute. In order to prevail under this argument, however, the plaintiff must convince the court to interpret the state constitution’s listing of specific voter qualifications as if the specified qualifications were the exclusive qualifications permitted.

In addition, the explicit voter qualification provisions located within state constitutions also support the argument that the right to vote is more of a fundamental right under a state constitution than it is under the federal Constitution. After all, the federal Constitution lacks any provision listing the explicit qualifications for casting a ballot, and instead largely leaves the regulation of elections to the states. Therefore, the argument goes, state constitutions should be interpreted to provide greater protection for voting rights than the federal Constitution. This argument was stressed by the Missouri Supreme Court in the Weinschenk case.

Article III of the Wisconsin Constitution contains the following provisions:

Electors. Section One. Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.

Implementation. Section Two. Laws may be enacted:

1. Defining residency.

2. Providing for registration of electors.

3. Providing for absentee voting.

4. Excluding from the right of suffrage persons:

a. convicted of a felony, unless restored to civil rights.

b. adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside.

5. Subject to ratification by the people at a general election, extending the right of suffrage to additional classes.

It is possible to argue that Article III should be interpreted to create an absolute right to vote on the part of the electorate so long as the qualifications of Section One are met. Under this interpretation, age, citizenship and residence are the exclusive qualifications for casting a ballot in Wisconsin, and the Wisconsin legislature may not add additional requirements to the list contained in Section One. In contrast, Section Two, which is titled “Implementation,” allows the legislature to define residency and to provide procedures for registration, but it does not allow the legislature to add additional substantive qualifications to the list in Section One. The possession of a state-issued photo ID might be viewed as a substantive qualification limiting the pool of eligible voters, and therefore beyond the constitutional authority of the legislature.

However, arguing against this interpretation is the fact that the right to vote in an election is not explicitly guaranteed by the language of Section One of the Wisconsin Constitution. In addition, nowhere does the text of the Wisconsin Constitution explicitly state that the qualifications listed in Section One should be read to comprise the exclusive list of permitted qualifications in the absence of a constitutional amendment.

It is relevant to note that, while the Missouri Supreme Court interpreted the Missouri Constitution to contain an exclusive list of voter qualifications in Weinschenk, a case that pre-dated the Crawford decision, subsequent to Crawford the highest state courts in Indiana, Georgia and Michigan have all declined to interpret their state constitutions in such a fashion. Instead, these later cases read the photo identification requirement as akin to a “time, place and manner” regulation that occasionally operates to prevent votes from being cast, such as a provisions dictating when polling places open or close, and not as an attempt to add an additional qualification for voting rights.

F. Conclusion

Litigation challenging the constitutionality of state laws imposing a voter ID requirement faces an uphill battle under existing judicial precedent. Individuals and advocacy groups concerned about the possibility that voter ID laws may act to disenfranchise certain populations should not look to litigation as a “magic bullet” to overturn such laws. Instead, critics of voter ID laws should consider working to elect representatives who will amend or repeal such legislation. Alternatively, critics should consider forming or supporting non-profit entities that work at the grassroots level to identify and assist anyone who needs help in obtaining a photo ID.

On Wednesday of this week, the world lost several visionaries. Rev. Fred Shuttlesworth, a prominent civil rights activist, and Steve Jobs, co-founder of Apple, Inc. both died.  But there was a third visionary whose light went out on Wednesday:  Derrick Bell.

Bell was a visiting professor of law at New York University School of Law when he died. He is considered a pioneer of critical race theory, which theory examines issues of race, racism, and power in law and legal institutions.  But while he had spent most of his life as an academic, his roots – and his defining experiences – were in civil rights. Bell graduated with an LL.B. from the University of Pittsburgh School of Law in 1957 and, after a short stint in the Civil Rights Division at the U.S. Justice Department, went to work for the NAACP Legal Defense Fund, working closely with Thurgood Marshall, who recruited him.  According to Bell’s biography on TheHistoryMakers, while he was at the NAACP Legal Defense Fund, he oversaw more than 300 school desegregation cases.  His experience with those desegregation cases factored significantly in his developing interest convergence theory, which he wrote about in law review articles as well as in the 2004 book Silent Covenants:  Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform.

I read Silent Covenants last year.  It is an amazing text that directly challenges the iconic U.S. Supreme Court decision in Brown v. Board of Education.  While that decision seems to remain what Bell called “the Holy Grail of racial justice,” Bell found the decision to be less about racial equality and more about national security.  Claims Bell, in the aftermath of World War II and rise of the Cold War, America found itself in a bit of what one might call a public relations bind.  It billed itself as a world leader in democracy, yet at that time de facto if not de jure segregation prevailed across the country. African Americans who enlisted in the armed services to fight (in their segregated units) Hitler and fascism in the name of freedom and justice returned home to find that they still were not allowed to eat at the same lunch counters or stay in the same hotels or go to the same schools as the whites for whom they had risked their lives.  This discrepancy did not go unnoticed by the Soviets, whom some feared would use America’s racial inequality to recruit members for the communist party.  So when the NAACP brought the Brown case to the U.S. Supreme Court, the timing was right to make some changes in America’s racial policies.

Said Bell in Silent Covenants, “Black rights are recognized and protected when and only so long as policymakers perceive that such advances will further interests that are their primary concern.”  Thus Bell introduces his interest convergence covenants, events in history where black rights were recognized but the underlying reasons were not recognition of the rights for their own sake but recognition because such rights served broader interests.

In his view, Brown should not have dismantled Plessy v. Ferguson as it did.  In fact, Bell claims, the Court should have upheld Plessy and actually enforced the “equal” part of “separate but equal.”  In this way, Bell believed most school districts would either be able to truly equalize their segregated schools or degregate on their own because they would not be able to afford to equalize.

It was typical of Bell to find that race mattered in a whole host of ways in a whole host of situations.  In fact, one of the criticisms levied against him was that he was often too quick to “play the race card.”  But he probably isn’t wrong.  Perhaps Bell saw racism everywhere because it is everywhere, although sometimes it manifests only in the most subtle of ways.

Thank you, Professor Bell, for your contributions to legal theory.  You will be missed.

RIP Derrick Bell, Pioneer of Critical Race Theory

In June 2004, however, Perich developed symptoms of a medical disorder, eventually diagnosed as narcolepsy. Despite obtaining in February 2005 a doctor’s certification of her ability to return to work, the school had already made alternative arrangements and proposed that she resign her call. After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school.

Immediately she filed a charge of discrimination and retaliation with the EEOC, which eventually initiated a federal district court action against the school. Though the school prevailed at the district court level, it then lost before the Sixth Circuit Court of Appeals.

Underlying the district court’s ruling, and rejected by the Court of Appeals, is a doctrine called the “ministerial exception.” Her case—and indeed the fate of the ministerial exception—are now before the U.S. Supreme Court, which granted review of the Sixth Circuit’s decision last spring and is scheduled to hear oral arguments on October 5.

What, then, is this “ministerial exception” and why is her case potentially of great significance? In essence the ministerial exception is a judge-made exemption from several federal civil rights statutes, such as Title VII and the Americans with Disabilities Act, that the courts believe is compelled by the Constitution’s religion clauses. The exemption extends to religious organizations’ employment decisions where the employee, regardless of his or her title, serves functions comparable to those of traditional clergy. Importantly, it is a categorical exemption, potentially barring suits alleging discrimination on any statutorily protected basis, including race and gender.

From the petitioner’s initial standpoint, as evidenced in its principal brief on the merits, the issue was simply the Sixth Circuit’s application (or, in its view, misapplication) of the exception. The respondent, however, has effectively challenged the validity of the exception itself, capitalizing on two critical realities: first, that the Supreme Court itself has never adopted the exception, even though every federal circuit court (beginning in the 1970s) has done so, and second, that the exception is seemingly at odds with the Supreme Court’s free exercise doctrine, which it substantially reworked in 1990. It thus comes as no surprise that the bulk of the petitioner’s reply brief only cursorily dwells on Cheryl Perich’s actual circumstances and instead spends most of its pages vigorously defending the exception itself.

Thus, all of a sudden, though not entirely unpredictably, the case has now become a vehicle for potentially abrogating over thirty years of lower court rulings. Will the Court view the exception as a misapplication of the Free Exercise Clause, which in 1990 it held does not ordinarily shield religious conduct from the application of neutral and generally applicable laws? Or will the Court view the exception as a viable component of the Establishment Clause insofar as the government is unduly entangling itself in the internal affairs of religious bodies? The fact that the lower courts have unanimously adopted the exception in one form or another is, to be frank, not necessarily the Court’s problem or concern, and the fact that the lower courts have grounded and conceptualized the doctrine in several ways only works against the supposed significance of their unanimity.

The October 5th oral arguments will ideally shed light on the Court’s inclinations, but given the stakes and the multi-tiered nature of the case, not to mention the very able counsel on both sides and a literal deluge of amicus briefs, the likelihood of such illumination is not great. The only definite aspect of the case, it seems, is that Cheryl Perich and her disability-related claims—the very genesis of the litigation—have become merely a secondary story in what is now a major contest over the First Amendment.

This almost certainly doesn’t put Ratner in the mainstream of American opinion, but it is consistent with what Ratner has advocated as president of the Center for Constitutional Rights, a New York-based non-profit organization, and as an attorney who has played key roles in defending the legal rights of prisoners at the military prison at Guantanamo Bay and in opposing interrogation techniques Ratner considers torture.

Ratner visited Eckstein Hall last week to speak to about 20 people at a lunch session of the American Constitution Society for Law and Policy, Milwaukee Lawyer Chapter.

Ratner realizes where the preponderance of American opinion lies on the killing on May 1 of bin Laden. “No one really cares whether he was lawfully killed or not,” he said. “People wanted him killed.”

President Barack Obama said justice was done. But to Ratner, justice being done would have meant putting bin Laden on trial. “The US has never actually put out the evidence that he (bin Laden) was” the master planner behind the attacks on September 11, 2001, against the World Trade Center in New York and the Pentagon in Washington, D.C., Ratner said.

Ratner said his organization has strongly advocated using the law enforcement model in approaching terror suspects, which is why it has led efforts to give those detained at Guantanamo rights such as habeas corpus. The US Supreme Court has ruled in favor of extending at least some rights to those at Guantanamo in cases in which Ratner played a role.

Ratner had little praise for President Obama’s work on issues such as using techniques many consider torture in dealing with terrorism suspects.  “We all had these great hopes for Obama,” he said. But two years after Obama became president and said he wanted to close Guantanamo, the military detention operation there looks more permanent than ever, Ratner said.

Ratner said that on the issues that are his priorities, Obama “has not been great.”  He gave the president credit for eliminating the secret prisons US agents had operated around the world. But Obama said at one point that the US should look forward, rather than backward, when deciding whether to consider action against those who gave permission to engage in extreme techniques for questioning terror suspects during the administration of President George W. Bush. Ratner called that “one of the most disingenuous statements I could hear. “ He said, “He’s looking forward to a country that may well torture again.”

Prior cases interpreting 42 U.S.C. § 1983 (the federal civil rights law Thompson invoked in his lawsuit) reject vicarious liability for the government when a government employee violates consitutional rights; in order to recover, as matters unfolded, Thompson was obliged to show that the District Attorney had been deliberately indifferent to a need to train his subordinates regarding their Brady responsibilities.  Prior cases also establish that a “failure to train” claim must ordinarily be based on multiple violations of constitutional rights; a single violation, such as that suffered by Thompson, would require extraordinary circumstances to justify relief.

So much everyone agreed on. 

For the majority, the case presented a highly abstract legal question: whether there is something particular about the difficulty and frequency of Brady questions confronting line prosecutors that imposes a general duty on DAs to provide Brady training, such that a failure to provide training could fairly be characterized as a deliberate indifference to defendants’ Brady rights.  The majority sensibly answered this question in the negative, reasoning that prosecutors, as licensed attorneys, are perfectly capable of educating themselves about Brady.  Taking the case on the majority’s terms, Thompson had to lose — to hold otherwise would effectively invite the federal courts to micromanage the CLE programs of DAs’ offices across the country.

But the dissent framed the issue quite differently.  In the dissent’s view, the case presented the much less abstract question of whether the specific evidence presented by Thompson at his civil trial permitted an inference that the DA had been deliberately indifferent to Thompson’s rights.  The case was not about Brady training as a general proposition, but whether a particular DA in a particular set of circumstances was obliged to do more to instill a greater respect for and understanding of Brady rights in his office.  Framed this way, the case was more favorable to Thompson:

Abundant evidence supported the jury’s finding that additional Brady training was necessary to ensure that Brady violations would not occur: (1) Connick, the Office’s sole policymaker, misunderstood Brady.  (2) Other leaders in the Office, who bore direct responsibility for training less experienced prosecutors, were similarly uninformed about Brady.  (3) Prosecutors in the Office received no Brady training.  (4) The Office shirked its reponsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements.

Part of what drives the different perspectives of the majority and dissent is a different view of the scope of a failure to train claim.  For the majority, such a claim is merely about the transmittal of information about constitutional rights; if subordinates already have the information or can easily discover it themselves, then there is no need to train.  On the other hand, the dissenters see training as also involving a drawing of attention to constitutional rights — it’s about conveying not merely the content of the rights, but also their importance.  Thus, the dissent faulted the DA’s “cavalier approach to his staff’s knowledge and observation of Brady requirements,” which “contributed to a culture of inattention to Brady.”  For instance, the dissent noted, the DA “never disciplined or fired a single prosecutor for violating Brady.”

What will the impact of Connick be?  Read for all it’s worth, the majority’s reasoning (training is about transmitting information, and prosecutors are perfectly able to learn this stuff on their own) would seem to leave little room for failure to train claims against prosecutors — perhaps even in multiple violation cases.  On the other hand, the majority defined the question before it so narrowly that future plaintiffs may still have good grounds for distinguishing their cases if they have any office-specific evidence to rely on, as opposed to a generic theory that all DAs should provide Brady training.

Cross posted at Life Sentences Blog.

He signed a professional contract with the St. Louis Browns in 1949, and later pitched for seven different major league teams between 1954 and 1965.  He is best remembered as a star relief pitcher for the New York Yankees from 1958 to 1961.  In that role, he was instrumental in the Yankees victory over his home state Milwaukee Braves in the 1958 World Series.

Although his career statistics were fairly modest, a 27-44 won-lost record with 57 saves and a life time ERA of 3.83, Duren was well-known to baseball fans of the late 1950’s and early 1960’s.  Perhaps the hardest thrower of that era and one of the first pitchers to have his fastball clocked at over 100 mph, Duren was a three-time all-star who averaged 9.6 strikeouts and 6.0 walks per nine innings for his career. 

In 1958 and 1959, he was one of the best relief pitchers in major league baseball, but in most seasons, his lack of control limited his effectiveness.  In 1960, for example, he struck out an average of 12.3 batters per nine innings while holding opposing batters to a .160 batting average.  However, his lack of control, which led him to walk an average of one full batter per inning, caused his earned run average to balloon to 4.96.  Even though he pitched relatively few innings each year, he also several times ranked among league leaders in hit batsmen and wild pitches.

Although he was an accomplished pitcher for several years, Duren was best known as the original “Wild Man” relief pitcher.  (He was the prototype for the Charlie Sheen character in the movie Major League.) Although he was an athletic 6’2”, 190 lbs., Duren had extremely poor eyesight (20/200) and wore coke bottle thick eye-glasses.  He also had a severe drinking problem and frequently pitched while badly hung over and occasionally while intoxicated.  The combination of his wicked fastball, his lack of control, the coke bottle glasses, which he occasionally chose not to wear, and his well known penchant for drinking made him a very intimidating figure.  

Duren’s inspirational autobiography, I Can See Clearly Now (2003), tells the story of his triumph over alcoholism in the years following his retirement from baseball.

What has not been mentioned in any of the tributes that have appeared since his death was Duren’s role in the integration of minor league baseball in the American South in the early 1950’s.  In his book  Brushing Back Jim Crow: The Integration of Minor League Baseball in the American South, historian Bruce Adelson tells several stories about Duren coming to the defense of his black teammates. 

In 1955, Duren was pitching for the San Antonio Missions of the Texas League.  Even though the Texas League had been racially integrated in 1952, it still had very few black players and included several all-white teams.  Many of the league’s fans clearly resented racial integration.  That year, Shreveport Sports manager Mel McGaha regularly ordered his pitchers to throw at black batters. 

According to Duren’s San Antonio teammate Willie Tasby, a black outfielder, Duren would retaliate on Tasby’s behalf by throwing 100-mph fastballs at Shreveport batters.  Apparently, Duren would sometimes take off his glasses and throw at Shreveport batters in the on-deck circle so that they would not be able to take first base when they were hit by his pitch.  Apparently, this tactic worked, and white pitchers stop throwing at Tasby.  The year before, Duren had also reportedly gone out of his way to befriend black San Antonio teammate Joe Durham who was not permitted to room or eat with his teammates in the Jim Crow South.  

Playing minor league baseball in the South in the early 1950’s was no picnic for black baseball players, but the existence of sympathetic white teammates like Ryne Duren made it more bearable, and safer. 

Duren spent most of his life in Wisconsin and his name appears on the Wall of Honor at Miller Park.  Hall of Famer Ryne Sandburg, born in 1959 in Spokane, Washington, during Duren’s best season, was named after Duren by his Yankee-fan father.

The increased success rate is surely due to the fact that more asylum seekers are finding legal representation:  as the study explains, unrepresented asylum seekers have a success rate of about 11%, while those with attorneys have about a 54% chance of winning asylum.  The study also shows that the dramatic disparities in grant rates by different judges continues (e.g., in the New York Immigration Court, judges’ asylum grant rates ranged from 6% to 70%).

In any event, the other statistics referred to in that WSJ Law Blog post are from a Pew Hispanic Center study showing a dramatic decline in the population of undocumented immigrants in the United States over the past few years.   ImmigrationProf’s take on this data is that “It’s the (Labor) Market, Stupid.” In related news, Edward Schumacher at the Washington Post shared data that he received from the chief actuary of the Social Security Administration that undocumented immigrants’ contributions to Social Security  represent between 5.4 and 10.7 % of the fund’s total assets, roughly twice as much as previous estimates.  The decline in the undocumented population thus increases the Social Security trust fund’s solvency crisis.

There were a few other interesting legal developments in immigration law this week.  The Ninth Circuit, in a 2-1 decision, overturned the conviction of a humanitarian border activist, who had been convicted of littering because he left water in the Arizona desert, in an effort to prevent migrants from dying of thirst.  As the court explained,

Millis concede[d] that he placed water on refuge trails, but argue[d] that his conduct did not violate § 27.94(a) because the bottles of purified water did not constitute “garbage, refuse, sewage, sludge, earth, rocks, or other debris” within the meaning of the regulation. The United States counter[ed] that the bottles constitute “garbage.”

The majority, applying the rule of lenity and the ordinary meaning of the word “garbage,” decided that it was ambiguous whether jugs of water left for human beings to drink in the desert were “garbage,” and therefore threw out the charges.  The dissenter, Judge Jay Bybee would have upheld the conviction, unconvinced that there was any ambiguity as to whether leaving the bottles of drinking water in the desert was “littering” or the discarding of “garbage.”  David Luban over at Balkinization couldn’t help but point out that this same Jay Bybee “thinks that terms like ‘torture’ and ‘severe suffering’ are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.”

And I cannot help but point out that 170 human beings have already died trying to cross the border this year, mostly due to heat-related illness.

In other news, there were a couple more skirmishes in what seems to be a brewing battle over the vitality of Plyler v. Doe.  Seton Hall University Law School’s Center for Social Justice filed an amendment to its claim against the state of New Jersey for its new policies eliminating Medicaid benefits for some legal immigrants. And the DOJ reportedly has sued a network of Arizona community colleges because they required noncitizens to provide their green cards in order to be eligible for hiring.

Finally, a busy week for the DOJ:  the agency just filed a new lawsuit against Sheriff Joe Arpaio, seeking declaratory and injunctive relief forcing the Sheriff to cooperate with the DOJ’s investigation into national origin discrimination that allegedly pervades the Sheriff’s police and jail operations.

If you read this blog regularly, you will not be surprised to learn that abolishing birthright American citizenship seems like a terrible idea to me.   One more sally in the current  assault against immigrants, against the “other,” along with the police checkpoints for schoolchildren walking to school near the border, the Arizona law, the “deportation madness,” and the opposition to building mosques.  What’s more, it would be a terrible development for our society, a recipe to increase crime and instability, by enlarging and making permanent the underground world of people who reside here, even were born here, but are afraid to interact with the legitimate authorities and institutions of our society.

One of the more interesting blog posts about the Fourteenth Amendment controversy was posted by three law professors (Paul Finkelman, James Anaya, and Gabriel Chin) at the Huffington Post a couple of days ago.   They offer strong, well-supported historical, legal, and political arguments against the proposal.  But what’s most striking is their personal appeal–each of these professors is himself the grandchild of undocumented immigrants.  They write,

We are struck by what the absence of birth citizenship might have meant for our parents and us, and what it might mean for others in the future. Looming is the caste problem — if the children of undocumented immigrants are not citizens, then perhaps their grandchildren and great-grandchildren are not citizens either.

This admission is a rather dramatic rhetorical move, coming from law professors in the United States.  We lawyers are trained to do just the opposite, for the most part — to craft powerful legal arguments that give the audience an image of the worst consequences of the law we oppose, while avoiding any personal or individual connection to those consequences.   So the post is interesting from a rhetorical point of view.  The historical and legal argument is strong too, though:

In the past, America has come to regret policies denying citizenship to particular groups, policies like Dred Scott, and the racial tests for naturalized citizenship in force from 1790 to 1952. These policies always rested on the idea that some immigrants — almost always non-white — would not make good citizens. Doubt about the ability of the United States to take in and benefit from every branch of the human family has always been proved wrong, and, we have no doubt, will be here as well.

I came upon another post in the same vein this week, a video on youtube, actually an 1947 U.S. War Department-produced video called “Don’t Be a Sucker” (you can see the original in the internet archive).  The youtube poster has tacked the image of a waving American flag and an admonition to “Never Forget We Are Nothing Without Equality” at the end of the War Department PSA, an addition that actually fits fairly well with the video’s heavy-handed tone.

*The terrific Deportation Madness art accompanying this post is used by permission of the artist Dmitri Jackson and the Texas Observer, where it accompanied an article with the same title, written by Melissa Delbosque.

The overall struggle that transgender people face is similar to the struggle that gays and lesbians face, but for transgender people, the progressive change for their legal rights seems to be slower.  Currently, in 38 states it is still legal to discriminate based on gender identity.  Comparatively, 30 states have not yet developed laws against sexual orientation discrimination.  Wisconsin was the first state to ban employment discrimination based on sexual orientation, and it did so in 1982.  However, as of yet, it has not created equal legislation regarding gender identity.

Discrimination based on gender identity is more commonplace than most people realize.  According to the Human Rights Campaign, transgendered individuals suffer from a wide array of injustice including hate crimes, work place discrimination, housing discrimination, credit discrimination, public accommodation discrimination, and even health care discrimination:

[F]emale-to-male transsexual Robert Eads of rural Georgia developed cervical cancer but [he] could not find a doctor to treat him. Twenty simply refused to do so.  He eventually found one more than 130 miles from home, but by then, Eads’ partner said, it was “just too late.” He died in 1999.

Even in the states that have established anti-discrimination gender identity laws, the fight for equal treatment in the workplace is not a closed book.  Organizations like the Traditional Values Coalition (TVC) continue to advocate against the protection for transgender individuals on the basis that schools would be required to keep teachers who undergo sex changes.   TVC argues that children should not be “subjected to [a transgendered] man’s bizarre sexual transformation,” as it claims transgender individuals are “seriously mentally disturbed,” despite psychological studies that say otherwise.

One  blog post offered the conservative estimate that transgendered individuals are over ten times more likely to be murdered than individuals of the general population.  The “trans panic defense”—a variation on the classics of insanity, diminished capacity, provocation, and self-defense –has been introduced as a means to justify, or at least excuse, some of these murders.  Cousin to the “trans panic defense” is the “gay panic defense,” which was used in the case involving the high profile murder of Matthew Shepard.  Both defenses are built around the psychological phenomenon called homosexual panic. Psychiatrist Edward J. Kempf in 1920, who coined the phenomenon, described it as an acute, brief reactive psychosis suffered by the target of unwanted advances by homosexual or transgendered individuals.

The phenomenon and its subsequent legal defense seem ludicrous on a number of grounds.  First, it is troublesome that as legal defenses they seem to reinforce and promote negative stereotypes about homosexual and transgendered individuals as sexual deviants and sexual predators. Second, they are unsettling because the defenses seek to substantiate a subconscious bias in favor of heteronormativity, which is prevalent in today’s hetero-centric society. Lastly, a disturbing analogous defense comes to mind. Should there be a similar justification for unwanted or unsolicited flirting with women by heterosexual men, and what would that mean for the male population?  The last critique is somewhat tongue-in-cheek, but the point remains that this phenomenon gives an unbelievable amount of legal weight to what might be a simple come-on.

By and large, as this blog has acknowledged, jurisdictions across the US are progressively restricting the use of the “insanity defense.”  Thus, a call for the elimination of the “trans panic defense” in cases concerning mental defect might be unnecessary.  But the insanity defense is only half of the issue.  These defenses, when tied to claims of provocation, have been relatively successful.  The use of the “gay panic defense” and the “trans panic defense” in the judicial system show no real signs of going away.

But the folks on the left also had a point. Although one cannot expect mass political movements to be marked by the dispassionate and, we hope, carefully reasoned discourse to be heard in the court room or lecture hall, supporters of the health care bill argued (with some justification) that the over the top rhetoric obscured rather than clarified. Tea parties, they said and still say, are exercises in political hysteria and ignorance in which honest differences of opinion are turned into existential conflict and ordinary political opponents are portrayed as extraordinarily evil. Mass opposition to disfavored legislation and politicians is fine as long as it is accurate and temperate. This is what they say.

Except when they don’t.

I am not overly enamored with the prospects for Arizona’s so-called Support Our Law Enforcement and Safe Neighborhoods Act. My initial reaction is to call for an immediate and unforgiving ban on self congratulatory and tendentious titles for legislation. I mean it. Zero tolerance.

My second reaction is that, as an effort to reduce illegal immigration, the law is probably futile. It seems to me that we may  – with some substantial difficulty – be able to reduce illegal entries at the border or reduce demand by making it difficult to employ those who are here illegally(although efforts to date have been ineffective). But rounding up people after they have crossed the border and moved across the country is a bit like trying to reassemble a shattered bottle. It would, in any event, require far more intrusive regulation than Arizona contemplates. The state – which bears a disproportionate burden from what is rather schizophrenic national policy - is trying to make a point about federal inaction. I don’t know if this legislation can do  anymore than that.

My final – and lasting –  reaction is that the response to the bill is just as over the top as the most silly Tea Party. We are told, it is “racist,” “hysterical nativism,” and evocative of Nazi Germany and Communist Russia. It is cause, we hear, to read Arizona out of the civilized community.

But, near as I can tell, the law (or, at least, that part which draws the most attention) gives Arizona law enforcement no power that the federal government  does not already possess. In fact, the bill seems to have been written to be consistent with federal law so as to avoid the preemption problems that doomed more restrictive state immigration laws in California. If the law legalizes racial profiling or “outlaws Hispanics,” Congress did much the same thing years ago. If we are to boycott the Arizona Diamondbacks, we ought to want to ostracize the Washington Nationals as well.

The law might be unconstitutional but, if it is, it is likely because it is preempted by federal law -not that it violates the constitutional rights of individuals, creates a police state or is evocative of Nazi Germany. Yet, in the coverage of Saturday’s protests, I noticed no signs demanding that Arizona respect the sacred doctrine of field preemption. Marchers were not crying out in support of a God given right to be stopped only by agents of the federal government on matters related to the control of our national borders. Paeans were sung to the 4th and 14th amendments, not to the Supremacy clause.

The bill empowers local officials to interrogate persons who are “reasonably suspected” of being in the United States illegally. Frank Rich, who seems to be genuinely convicted of the notion that anyone who believes that a federal government that consumes 18-20% of GDP is “racist” and “hateful,” calls Arizona’s “tilt to the dark side” the “show me your papers law.” But resident aliens are already required to carry documentation at all times. While that requirement does not apply to US citizens, federal law also expressly provides that immigration officials can interrogate and, under certain circumstances, even detain persons who they have reason to believe are in the United States illegally.

Of course, there is a danger, in this context, that a “reasonable suspicion” standard will result in racial profiling. Perhaps that is sufficient reason not to permit stops of this sort. While the Arizona law expressly prohibits racial profiling, that doesn’t guarantee it will not occur.

But federal law  – supported over the years by Democrats and Republicans – permits the same activities and utilizing the same standard. In fact, stops based on “reasonable suspicion” have long been thought to be constitutional (remember Terry v. Ohio) and the ability of federal agents to do so in the context of enforcing the immigration laws has been upheld. There is a developed body of law defining what is and is not reasonable suspicion and it is not simply that a person “looks Hispanic.”* It is not self evident that empowering state law enforcement to do that same things results in a legal regime that is different in kind than that we have lived with for years.

As noted earlier, I think the law a largely futile response prompted by the federal government’s failure to enforce its own laws – a failure that seems to be attributable to ambivalence about (or even opposition to) enforcement of the law, the nasty demagoguery that has grown up around the immigration issue and the extreme difficulty of policing a lengthy border that millions of people have a powerful incentive to cross.

I am not much of a hawk on immigration. I do believe that liberal immigration laws have changed the character of a number of European nations in a way that longstanding residents might reasonably oppose and, in a forthcoming piece in WI Interest, I talk about whether  communities have a right to define themselves through exclusion. But the largely Hispanic immigration into the United States has generally not raised those issues. It has not created serious cultural conflict and, with the possible exception of places like Arizona into which there has been a huge influx of poor persons without the means of survival, it has not resulted in increases in crime. It is, for the most part, an economic issue.

As Professor Fallone argues, it is certainly not blameworthy for persons to want to come to the United States for a better life. But it is not self evident that it is in the interest of the United States – particularly the interest of  low skill workers in the United States – to permit that to happen. I agree that immigration into the United States is a regulatory problem, but regulation may well involve restriction and restriction may require the application of coercive measures to those – including employers seeking to save on labor costs – who will not comply.

What sort of restrictions and enforcement are appropriate is something on which reasonable people may differ. But if the health care debate (and it is not over) is not be furthered by charges of “death panels,” the discussion of immigration reform is not aided by charges of fascism and racism.

These changes to the law may diminish the likelihood that the Arizona state statute will be found to violate the Fourth Amendment and the Equal Protection Clause.  However, the most likely ground for a ruling that the Arizona law violates the Constitution was, and remains, that any state attempt to regulate the border is preempted by the pervasive scheme of federal immigration legislation.  While many observers will anxiously await the outcome of these constitutional challenges, it is important to recognize that there is a separate and more fundamental reason why the Arizona law is a mistake.  The law perpetuates a trend by our elected officials, identified by Professor Jennifer Chacon and others, that mistakenly conflates the criminal law with immigration law.  The convergence between these two separate areas of the law began in the 1990s and gathered momentum after September 11, 2001.  This process needs to be stopped and reversed.

The recent convergence of the criminal law and immigration law can be observed in several areas.  First, both public opinion polls and the rhetoric of politicians have increasingly associated undocumented immigrants with a propensity for criminal conduct, despite the lack of any statistical evidence to support this association.  The recent shooting of a peace officer by drug smugglers in Arizona provides an example.  Early news reports cast the episode as an example of violence by “illegal immigrants.”  The word “immigrant” refers to someone who seeks to change their country of residence.  Marijuana smugglers are not “immigrants” in any sense of the word; all these criminals want to do is deliver their illegal goods to a buyer in the United States and return to Mexico where they can live lavishly and bribe the police to avoid capture.  Allegations that an Arizona police officer was shot by an “illegal immigrant” are not only inflammatory, they reflect a fundamental mischaracterization of what the word “immigrant” means.  Any attempt to associate illegal immigrants with criminal conduct in the minds of the public merely serves to mask the true economic and social issues  that need to be addressed by a sensible system of immigration control.

Second, since the 1990s Congress has increasingly expanded the list of non-immigration related crimes that trigger the subsequent deportation of aliens.  The most notorious example of this is the “aggravated felon” designation.  The appellation “aggravated felon” was originally reserved for aliens that committed serious crimes such as murder and drug trafficking.  However, it has repeatedly been expanded so that it now includes more and less serious offenses, and it also applies retroactively to crimes that would not have led to deportation at the time that they were committed.  As a result, removal from the United States is now the consequence of virtually any non-misdemeanor criminal conviction (and even some misdemeanors).

Third, there has been an increased prosecution of violations of the immigration laws as separate federal crimes, with harsher and more frequent criminal consequences.  For example, illegal re-entry into the country, after having previously been deported, is now a crime punishable by incarceration.  In addition, in the past decade Congress created the federal crime of “aggravated identity theft,” which the Justice Department promptly applied to prosecute undocumented aliens.  The result is that, since 2004, immigration-related prosecutions have topped the list of criminal prosecutions brought in federal court, comprising almost one third (32%) of the total nationally. This is a stunning statistic.

The most obvious result of this convergence of the criminal law with immigration law has been that criminal categories, processes and techniques have been imported wholesale into the enforcement of the immigration laws.  Critics have complained that this process results in the punitive aspects of the criminal law being imported into immigration law, but without any of the accompanying procedural safeguards that protect defendants in the criminal system.  The one aspect of immigration law that most resembles punishment — the identification of individuals subject to forcible removal from the country — has become more severe while at the same time our basic concepts of due process are ignored.

Less appreciated by critics has been the manner in which the convergence of these two areas of the law has worked in reverse.  Last Thursday, I moderated a panel discussion entitled “The Intersection of Criminal and Immigration Laws: Padilla v. Kentucky and Other Recent Decisions of the Supreme Court” at the Annual Meeting of the Eastern District of Wisconsin Bar Association.  The panel included Attorney Maria Baldini-Potermin, Attorney (and proud MU alum) Sara Dill, and AUSA Jonathan Koening.  During our presentation, I was struck by how the Supreme Court’s recent decisions in the Padilla v. Kentucky and Flores-Figueroa v. United States cases interpret criminal law and procedure in a manner that reflects the influence of immigration law.  [Interested readers can order an audio CD of the panel discussion here.] 

Decided just last month, the Padilla v. Kentucky decision  held that defense counsel’s failure to advise a non-citizen of the immigration-related consequences of a criminal plea bargain violated the accused’s Sixth Amendment right to effective assistance of counsel.  The Supreme Court recognized that deportation has become “an integral part” of the penalty that non-citizens face when pleading guilty to a crime.  As a result, criminal defense attorneys now have a constitutional duty to know which criminal convictions lead to removal under the immigration laws, or at least to know those instances where the prospect of removal is sufficiently “succinct and straightforward” under the immigration laws that the client should be informed prior to entering a plea of guilty to a criminal charge.

Significantly, a guilty plea to criminal charges can lead to other types of serious consequences besides removal under the immigration laws.  Criminal convictions can lead to civil commitment, civil forfeiture, loss of voting rights, loss of public benefits and loss of professional licenses.  Does defense counsel also have a constitutional duty to advise clients of these consequences of a guilty plea?  The Supreme Court’s desire to help non-citizens make informed plea bargains may have implications for a great variety of citizen criminal defendants as well.      

 Flores-Figueroa v. United States  involved the interpretation of the federal “aggravated identity theft” statute.  That statute makes it a crime to “knowingly” possess or use ”a means of identification of another person,” with a mandatory two year prison term if convicted.  Federal prosecutors were bringing criminal charges against undocumented workers using fake social security cards, even where the undocumented workers had merely plucked the social security number out of thin air without knowing whether the number belonged to a real person or not.

The Supreme Court ruled that the word “knowingly” should be applied to require proof both that the accused knew that they possessed the false ID and also that the accused knew that the numbers on the ID card belonged to a real person.  The Court was influenced by the fact that a failure to read the word “knowingly” to apply to “another person,” in addition to the possession or use of the ID, would make the imposition of a two year prison sentence turn on whether the undocumented worker was unlucky enough as to select a real social security number when making a fake ID.  Workers lucky enough to choose a number that had not been assigned to a real person could not be charged.

It is not unusual for the Supreme Court to read a mens rea requirement into a criminal statute that lacks one, especially when the failure to do so would allow prosecutors to bring charges in cases involving non-blameworthy conduct.  Examples of prior cases along these lines involve the Court’s interpretation of statutes involving mail fraud, money laundering, and the “innocent” possession of firearms.  However, what is interesting about the Flores-Figueroa decision is that the Court suggests that in the future it will assume that the word “knowingly” used in a criminal statute should be read to apply to all of the elements of the crime.  If this is indeed a new canon of construction that the Court plans to apply across the board in future cases, then the Court’s sympathy for the plight of undocumented workers caught undeservedly in the criminal law may lead to benefits for all sorts of criminal defendants.

Like the Padilla and Flores-Figueroa opinions, the Arizona law is an example of the way in which two formerly separate areas of the law are increasingly blending into one.  Regardless of whether the criminal law is having a greater influence on immigration law, or vice versa, the convergence of these two areas of the law is problematic.

Arizona’s big mistake is not that it chose to trample on the civil rights of one third of its population, although that is a choice that may come back to haunt legislators who supported the bill.  Nor is Arizona’s mistake the embrace of racism, fascism or any other form of “ism,” although there are plenty of unsavory undertones lurking below the surface of this legislation.  The real mistake behind Arizona’s law is the knee-jerk assumption that immigration enforcement can be reduced to a criminal problem, rather than regulated under civil law.

If the federal government continues to make this same mistake as a matter of federal law, by continuing to conflate the criminal law and immigration law, then all of the federalism and preemption arguments in favor of striking down the Arizona state law will count for nothing.  As I argued recently on Wisconsin Public Radio, immigration (in both its legal and illegal forms) is an ongoing economic, social and political phenomenon that needs to be managed so that its benefits and burdens are allocated fairly throughout our nation.  The desire to live and work in our country, even without permission, is not morally blameworthy conduct (as seen in the condemnation of Arizona’s law by many religious leaders).  Moreover, illegal immigration simply cannot be deterred solely through the imposition of criminal sanctions.  Legal avenues for the immigration of unskilled workers, for example, are absolutely necessary in order to decrease illegal immigration.  Blurring the line between criminal law and immigration law does little to address our nation’s immigration problem, other than distracting us from the real solutions.

That wouldn’t seem like a noteworthy statement, except for the political context of Perez’ situation and the controversies that attend many of the areas of enforcement in the civil rights division. 

Perez said he would prefer to be like “the proverbial Maytag man,” sitting around with no one needing his services. But that is hardly how he described the work load of his division. 

Perez spent almost all of his remarks, lasting about a half hour, defending the need for civil rights enforcement in today’s America and pointedly hitting the theme that the division is “open for business.”

 “We’ve got a lot to do, and we had a lean eight years from ’01 to ’09,” Perez said, a reference to the administration of President George W. Bush, whose record on civil rights enforcement was strongly criticized by civil liberties groups.

 Perez said that while the United States has made great strides toward improving the climate for civil rights, he does not agree at all with some who argue that the free market can deal with discrimination or that the need for federal enforcement has waned.

 “We need laws against discrimination in order to ensure a functioning economy,” he said. He said discrimination is still a reality in education, employment, lending, and law enforcement, among other arenas.

 “An unfettered market is not always good for America,” he said, citing cases such as discrimination in home lending and hiring. He said even defenders of free market forces such as the Hon. Richard Posner of the US Court of Appeals for the Seventh Circuit had come to recognize that “the unfettered market is not working for everyone.” 

 Perez recounted the cases brought by the civil rights division last week, which he called :”retro week” because some of the cases, such as an educational opportunity case in Louisiana, involved the kind of discrimination some people think no longer occurs. He said there continues to be both “discrimination with a smile,” done in subtle ways, such as in steering people toward or away from housing because of their race, and discrimination that is asovert and hostile as there was in the pre-civil rights era.

 “We are, indeed, open for business,” he said as he concluded the list of recent cases.

 “We still have along way to go in Milwaukee and we still have a long way to go in this country” to reach the dream of equal justice under law advocated by Dr. Martin Luther King Jr., Perez said.

 Perez spoke to about 40 people, many of them attorneys from organizations with specific interests in the issues he deals with. He also took questions for about a half hour. The visit was among several he made in the Milwaukee area on Friday.

 Perez was deputy assistant attorney general for civil rights under Attorney General Janet Reno during the Clinton administration and has worked in numerous other government positions and as a law professor. A local note: he is married Ann Marie Staudenmaier, an attorney with the Washington Legal Clinic for the Homeless, whose parents live in the Milwaukee area.

So far, courts have been unreceptive to my claims that post-Lawrence v. Texas, the right to sexual privacy represents a heightened constitutional right which should lead only to employer interference with that right if the employer has a legitimate and substantial justification for so doing.  The most recent example of courts’ lack of receptivity to this argument comes from the Eleventh Circuit yesterday. 

Ross Runkel provides the following summary of the 11th Circuit case of Starling v. Board of County Commissioners (11th Cir 04/06/2010), in which the court upheld a public employee’s demotion where the firefighter had been caught in an extramarital affair:

Starling sued the employer under 42 USC Section 1983 for violation of his First Amendment right to intimate association. The trial court granted the employer’s motion for summary judgment. The 11th Circuit affirmed.

The court framed the question in the appeal as whether the employer violated a firefighter’s First Amendment right to intimate association by demoting him for an extramarital affair with one of his subordinates. The court concluded that the public employer’s interest in discouraging intimate association between supervisors and subordinates was so critical to the effective functioning of its fire department that it outweighed Starling’s interest in his relationship with the subordinate in the workplace. The court assumed arguendo that Starling’s right to intimate, extramarital association with a subordinate was fundamental, but did not address whether the First Amendment protected intimate, extramarital  association.

I have many issues with not only the conclusion of the court, but also, perhaps more fundamentally, about the way the legal issue is framed (and I’m not sure if this is the fault of the plaintiff’s attorney or the court):

1.    I do not think there is such a thing as a claim to intimate association under the First Amendment.  I read Roberts v. U.S. Jaycees as finding an expressive association right under the First Amendment, and an intimate association right under the substantive due process provisions of the Fourteenth Amendment.  I am aware of Stanley v. Georgia and the right to have pornography in one’s home, but I submit that is not an intimate association case at all.

2.  Even if Roberts‘ location of the intimate association claim is properly in the Fourteenth Amendment, I do not think that a public employee plaintiff would get much constitutional protection under this precedent. Courts have been reluctant to give heightened protected to intimate association claims in the 25 years since the Roberts case was decided.

3.  I would have argued that the right here is one of sexual privacy under Lawrence v. Texas.  I would have also argued that although it is unclear as to what the appropriate standard of scrutiny is in Lawrence cases, at the very least some form of heightened scrutiny is involved.  Indeed, I would compare Lawrence to the Pickering line of First Amendment cases and ask the court to conduct a balance of the employee’s sexual privacy interests against the rights of the public employer to run an efficient government workplace.  Unless the employer had a legitimate and substantial justification for demoting/firing the employee, I would find that sexual privacy interest had been violated by the public employer’s actions.  I do not believe that all cases of sex between supervisors and subordinates automatically meet this standard but we would need to inquire more into the nature of the relationship.

4. What is striking about this case is that the court assumes arguendo that there is a fundamental right to intimate association, but that such fundamental right is outweighed by the efficiency interests of the employer.  If indeed the intimate association right, wherever found, is a fundamental one, I would think the narrowly tailored means to meet a compelling state interest standard would be involved and a mere government interest in efficiency would hardly be enough to permit the demotion in these circumstances. Note also that the court affirms a summary judgment, holding that there is no genuine issues of material fact and the case can be decided as a matter of law.  But my approach in #3 suggests many important disputed facts need to be determined by a fact-finder.

General Kagan, for the government, filed the petition for cert and is asking the Court to overturn the 9th Circuit decision which directed a district court to issue a preliminary injunction on behalf of contract workers at NASA’s Jet Propulsion Laboratory (JPL) operated by the California Institute of Technology under a contract with the federal government.  The General maintains that the privacy expectations of the employees are minimal because they have are in the government employment context, these are standard background forms that the government is using, and the Privacy Act of 1974 protects this information from disclosure to the public.

The case was originally brought in 2007 by twenty-eight scientists and engineers employed as contractors at JPL on behalf of a potential class of 9,000 employees that NASA classifies as low-risk employees. Questions included in the background check ask about “any treatment or counseling” for illegal drug use, and forms issued to references seek “adverse information” about the workers’ employment, residence, and activities regarding violations of the law, financial integrity, abuse of alcohol or drugs, mental or emotional stability, general behavior, and “other matters.”

This will be an interesting case for a number of reasons. First, it does not squarely fit into either the public employee drug testing cases (Von Raab & Skinner), nor does it focuses on a public employee’s privacy rights in their physical belongings (Ortega). Rather, it focuses on an area of public employment constitutional law that has received less attention: the informational privacy rights of these employees.  The Court has “hinted” at a constitutional right to informational privacy in two cases in the 1970s and then “never said another word about it.” Judge Kozinski is his dissent from denial of rehearing en banc (citing Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977)).

Normally, because of the fact that the government is acting in its employer capacity, it would have more latitude to infringe on its employee’s rights under the Fourth Amendment. This means that a balancing test is most appropriate. Such a test would balance the need of the employee for informational privacy against the needs of the government employer.  In this case, it would appear that employees are seeking to protect confidential and potentially embarrassing personal information against the government’s need to obtain information to protect and secure its federal facilities.

I do not know how such a balance will be made in this case (or even if one will be made (Judge Posner in the 7th Circuit said a “search” hasn’t even occurred under these circumstances)), though one thing that appears to favor the workers is that they are employed in low-risk, non-sensitive positions.  This clearly distinguishes Nelson v. NASA from the Custom Agents who were required to undergo drug testing in Von Raab.  Finally, one might say that the legitimate expectation to privacy for employees in the post-9/11 environment might lead the Court to conclude that whatever privacy expectations they have are minimal.

My early prediction: the Supreme Court will overturn the 9th Circuit. I suspect the decision to recognize a right to informational privacy under the 4th Amdt, but to suggest in this context that the right is only minimally burdened by the government’s background check documents.

As Draper (L ’75) looked out at about 50 people, many of them African Americans who are current law students, in Eisenberg Hall Wednesday evening, he agreed that the situation, not only in the Law School but across the American scene, has improved for black people in recent decades.

But Draper, who went on to be an assistant district attorney and a court commissioner in Milwaukee County, and three other community leaders emphasized how far things still have to go before it can be rightly said that America has become a “post-racial” society. The four took part in a panel discussion on the state of black America sponsored by the Black Law Students Association.

There are still gaps, huge and small, between the opportunities and circumstances of white and black people in the United States, the panelists agreed. The election of Barack Obama as president is a milestone, and he and his wife, Michelle, provide powerful role models for black youth, the panelists agreed. But, as much as a black president was unimaginable a few years ago, his election was only one step toward change.

To Margaret Henningsen, co-founder and vice president of Legacy Bank, the continuing problem shows up in what she perceives as more attention her bank gets from federal regulators (“13 white guys in suits,” as she described the auditors who come in frequently) than a white-owned bank would get. To Draper, the problem can be seen in a white person he works with in his current position as a consultant to the state Office of Justice Assistance. The colleague can’t bring himself to refer to Obama as president, but has lots of other pejorative labels for the Commander-in-Chief. To Ald. Willie Hines, president of the Milwaukee Common Council, it can be seen in the large number of foreclosed homes in his central city district. To Judge Charles N. Clevert Jr., chief judge for the Eastern District of Wisconsin,  it can be seen in reports on nationwide statistics on racial gaps in economic opportunity and anecdotes from friends who say they are still not given work as readily as comparably qualified white people.

“People expect more from us,” Henningsen said. Hines responded that it isn’t fair, but, if necessary, black people need to work “as hard as it takes” to succeed in careers. “If it’s twice as hard (as white people), so be it,” he said.

Clevert said anyone who is new or different in a workplace or other situation is going to stand out and get more scrutiny. He urged African Americans seeking jobs to do as much networking as possible, and to handle all the details carefully when they are given opportunities.

Henningsen said that black youth need more role models. She urged each person in the audience to seek out 10 students they can encourage and help.

Clevert said that by 2050, America is projected to be a nation where white people will be in the minority, so it is in the nation’s interest to pursue paths that improve the picture of opportunity. “We have to become less racist, and I think we are on the way to a more tolerant society,” he said.

Despite complaints from other employees, the [religious group, the] Centurions, made presentations during 16 roll calls between May 9 and May 16, 2006, during which they distributed the flyers and books featured at the leadership conference.

The union argued that the employer’s actions, allowing the religious group to make religious presentations during mandatory employee meetings to Sheriff deputies, had the purpose or effect of advancing religion.The union sued the Milwaukee County Sheriff under Section 1983, alleging that the religious meeting violated their rights under the Establishment Clause of the First Amendment.

The Seventh Circuit affirmed the district court and unanimously held:

Because the group’s presentations during mandatory employee gatherings gave, at the least, the appearance of endorsement by the Sheriff’s Department, we conclude that the defendants violated the Establishment Clause . . .

In this case, the Centurions gave a heavily Christian-focused presentation at a mandatory
conference for government employees, and the Sheriff subsequently invited them to present at mandatory roll calls during work hours, granting them unfiltered access to a captive audience of subordinates. At each roll call, they were personally introduced by the Sheriff’s command staff and were permitted to distribute additional Christian-focused literature. Even more telling was the Sheriff’s refusal to cease the presentations after some of the deputies complained of the Centurions’ proselytizing. He took no steps to disentangle himself or the Department from any of the religious message . . . and his actions, at the least, appeared to place the Centurions’ in the same category as the other “partnering” organizations, like Johnson’s Bike Company—all of whom presumably received the Department’s approval.

I agree with the court that, “it would be difficult to interpret the Sheriff’s actions as anything other than endorsement.”

One last point. The court also considered the free speech rights of the religious group to speak to the Deputies under a First Amendment free speech forum analysis.  On this ground, the court concluded:

The Sheriff is mistaken that the department has created a forum of any kind and so, the Centurion’s desire to access the deputies present at the leadership conference and roll calls does not trigger a Free Speech forum analysis.  The Supreme Court recognizes a distinction between claims asserting access to a forum and claims asserting access to a captive audience. Minn. State Bd. for Cmty Coll. v. Knight, 465 U.S. 271, 286 (1984).

In all, this case is a welcome reminder that public places of employment may not purposefully expose their employees to religious proselytizing, no matter how benign the purposes.

The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

For instance, the final report of the Access to Justice Committee of the Wisconsin State Bar in 2007 cited research establishing that unrepresented litigants were dramatically less successful in Equal Rights Division hearings on probable cause:

[T]he Equal Rights Division of the state Department of Workforce Development tracks outcomes in probable cause hearings and found that complainants with counsel are successful more than 42% of the time while complainants without are successful only 17% of the time. In a probable cause hearing, the ERD determines whether there is enough believable evidence of job discrimination to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims who are unrepresented give up before the case comes to a final hearing. Abuse victims who are represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition stops.”

Likewise, statistics show that immigrants who are represented by counsel stand a greater chance of avoiding deportation, on average. Specifically, according to a report from Minnesota Advocates for Human Rights (reporting to the United Nations, on the United States’ compliance with its international obligations to protect civil and political rights), the Executive Office of Immigration Review’s own statistics for the years 2002 through 2006 demonstrate that

in cases involving represented, non-detained immigrants, 34 percent secured relief; but only 23 percent of unrepresented, non-detained immigrants received relief. Similarly, in cases involving represented detained immigrants, 24 percent secured relief as compared with only 15 percent of their unrepresented counterparts. More pronounced disparities appear in political asylum cases: 39 percent of represented, non-detained asylum seekers received political asylum compared with 14 percent of unrepresented, non-detained asylum seekers; 18 percent of represented, detained asylum seekers were granted asylum, compared to three percent of unrepresented detained asylum seekers. [footnotes and citations omitted, and emphasis added]

In other words, not only do represented immigrants have a better chance of avoiding deportation, that advantage is greatest in some of the most critical cases: aliens in detention and aliens seeking refuge from persecution.

Similar examples abound. The Brennan Center’s Civil Right to Justice web pages document, for instance, the “crisis in legal representation” arising out of the current foreclosure crisis. Wisconsin courts have seem a sharp uptick in foreclosure filings: last year was a record-setter for Wisconsin foreclosure actions, with more than 25,000 actions started, and this year (according to the Law School’s foreclosure mediation program web page) is on pace to pass that record.

Imagining our courts swamped with foreclosure actions suggests another potential benefit of civil Gideon: maybe access to counsel would improve not only fairness but also efficiency? Rather than promoting wasteful litigation, lawyers might help people present their claims more clearly and effectively. They might even convince some who lack a genuine defense to give up the legal fight. (In a similar vein, the National Coalition for a Civil Right to Counsel links to a number of different studies and reports tending to show economic and social benefits resulting from the provision of civil legal aid for the critical legal needs of those who can’t afford attorneys.)

Well, as so often seems to be the case, I have no tidy ending for this post. I just wanted to draw together in one spot various news items and blog posts that had recently caught my attention, at a moment when the question of fairness in critical legal proceedings seems to be on many minds. As always, I welcome your comments and criticisms.