The Supreme Court and the Fate of the Ministerial Exception

Posted on Categories Civil Rights, Constitutional Interpretation, Education & Law, First Amendment, Public, Religion & Law, U.S. Supreme CourtLeave a comment» on The Supreme Court and the Fate of the Ministerial Exception

In 1999, Cheryl Perich began service as a lay teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan.  A year later, she became a “called teacher,” selected by the congregation to serve as a commissioned minister and charged with duties of a more pastoral nature, such as teaching religion classes, leading the students in devotional exercises, and participating in weekly chapel functions, though continuing to teach predominantly secular subjects.

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 After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school. Continue reading “The Supreme Court and the Fate of the Ministerial Exception”

Ratner: Even Osama Should Have Had Criminal Rights

Posted on Categories Civil Rights, Criminal Law & Process, Human Rights, President & Executive Branch, Prisoner Rights, Speakers at MarquetteLeave a comment» on Ratner: Even Osama Should Have Had Criminal Rights

Michael Ratner would have treated the pursuit of Osama bin Laden as a law enforcement matter, not as a matter of war. He would rather have seen bin Laden arrested, brought to trial, and given the rights of a criminal defendant than shot on the spot by Navy SEALS.

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.”

Continue reading “Ratner: Even Osama Should Have Had Criminal Rights”

Connick v. Thompson: Both Answers Are Right — What Was the Question Again?

Posted on Categories Civil Rights, Criminal Law & Process, Public, U.S. Supreme Court1 Comment on Connick v. Thompson: Both Answers Are Right — What Was the Question Again?

In Supreme Court cases, the majority and dissent sometimes talk right past one another, framing the question for decision so differently that they almost seem to be writing about different cases.  See, e.g., the dueling opinions earlier this week in Connick v. Thompson (No. 09-571).  Thompson was convicted of attempted armed robbery and murder, and then sentenced to death.  A month before his execution, a bloodstained swatch of cloth came to light that proved Thompson was not the perpetrator in the robbery prosecution.  The murder charge was eventually retried, and Thompson was acquitted.  In all, he served 18 years in prison based on his wrongful convictions.  Moreover, it turns out that an assistant district attorney who was part of the team that prosecuted Thompson deliberately withheld the swatch.  The District Attorney’s office now concedes that Thompson’s constitutional rights were violated under Brady v. Maryland.  The question now is whether the DA’s office should be civilly liable to Thompson for this violation.

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.  Continue reading “Connick v. Thompson: Both Answers Are Right — What Was the Question Again?”

Ryne Duren and the Integration of Minor League Baseball

Posted on Categories Civil Rights, Sports & Law5 Comments on Ryne Duren and the Integration of Minor League Baseball

Rinold George “Ryne” Duren, one of Wisconsin’s most famous baseball pitchers, passed away at his Florida winter home on January 6, at age 81.   Born in Cazenovia, Wisconsin in 1929, Duren was not permitted to pitch while a high school student out of fear for the safety of the other players; however, he did star in the amateur adult Sauk County League, where he averaged 22 strike outs per game.

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.  Continue reading “Ryne Duren and the Integration of Minor League Baseball”

Best of the Blogs (Well Mostly the Immigration-Related Ones)

Posted on Categories Civil Rights, Constitutional Interpretation, Criminal Law & Process, Human Rights, Immigration LawLeave a comment» on Best of the Blogs (Well Mostly the Immigration-Related Ones)

No More Deaths, law does not get all that much attention in the blogosphere, even on the immigration-related blogs, probably because the numbers of refugees and asylees are so low in the context of U.S. immigration as a whole.   This week, though, there was a little discussion of a new study showing that asylum-seekers’ success rates have gone up to about 50%.  The study also confirms that asylum requests (that is, requests for refugee status made by people who are in the United States already) continue to fall.  The Wall Street Journal’s Law Blog mischaracterized the study to some extent, asserting that “Recently revealed statistics show that illegal immigration is down. But another method of gaining residence in the U.S. is up: seeking political asylum,” when, as I just explained, asylum requests actually continue to fall.  It is only the rate of success that has gone up.

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.   Continue reading “Best of the Blogs (Well Mostly the Immigration-Related Ones)”

We Have Met the Other and He Is Us (Law Professors)

Posted on Categories Civil Rights, Constitutional Interpretation, Federal Law & Legal System, Human Rights, Immigration Law, Political Processes & Rhetoric9 Comments on We Have Met the Other and He Is Us (Law Professors)

In the latest development in what is starting to feel like a trip  “through the looking glass” to some bizarre version of the legal world as I understood it in law school, actual, important politicians have raised the spectre of  repealing or amending or re-interpreting the Fourteenth Amendment, specifically, its provision that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  It seems especially sad that those who want to abolish or change the long-standing, post-Civil-War principle of birthright citizenship in the United States are, mainly, Republicans: one might call the Fourteenth Amendment “one of the [Republican] party’s greatest feats,” as did the Economist in the article linked above.  In any event, the Economist article does a pretty fair job, I think, of discussing the various perspectives on the issue (including pointing out that the so-called “anchor baby” idea is almost completely a fallacy, since a child cannot petition to make his parent a citizen until after the child is 21). Continue reading “We Have Met the Other and He Is Us (Law Professors)”


Posted on Categories Civil Rights, Criminal Law & Process, Labor & Employment Law, Wisconsin Law & Legal System1 Comment on Trans-formation

A year ago, President Barack Obama issued a proclamation naming June “Lesbian, Gay, Bisexual and Transgendered Pride Month.”  The proclamation effectively incorporated the transgendered community into President Bill Clinton’s 2000 proclamation, which named June “Gay & Lesbian Pride Month.”  In honor of the transgendered community, their legal rights, and the month of June, it seems appropriate to discuss gender identity discrimination and the infamous “trans panic defense.”

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. Continue reading “Trans-formation”

May Day Tea Parties

Posted on Categories Civil Rights, Immigration Law, Political Processes & Rhetoric1 Comment on May Day Tea Parties

Most recently, the political left accused conservatives of dumbing down the President’s health care bill. It did not usher in “socialized medicine” and did not call for “death panels.” The conservatives weren’t completely wrong. The bill – both by its provisions and by anticipated responses to what are the almost certain ways in which it will fail to achieve its intended purposes – dramatically increases and centralizes public control of health care markets including decisions on what treatments are and are not “cost effective.”

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. Continue reading “May Day Tea Parties”

Arizona’s Big Mistake

Posted on Categories Civil Rights, Federal Criminal Law & Process, Immigration Law, U.S. Supreme Court3 Comments on Arizona’s Big Mistake

Arizona recently passed into law provisions that make a person’s illegal presence in the state of Arizona — currently a civil violation under federal law — a crime under state law.  The Arizona law also provides for the arrest of persons where the police have a “reasonable suspicion” that the individual is unlawfully present and where the individual cannot produce the proper documentation.  Last minute changes  were made to the law this past Friday in order to prohibit the use of racial or ethnic profiling by police in determining who to stop and question, and to clarify that questions about an individual’s immigration status should only be asked as part of an investigation of non-immigration related violations.  These changes to the original language were made to try and stave off several threatened lawsuits intended to challenge the constitutionality of the Arizona law.  

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. Continue reading “Arizona’s Big Mistake”

Civil Rights Enforcement Chief: “We Are Open for Business”

Posted on Categories Civil Rights, Speakers at MarquetteLeave a comment» on Civil Rights Enforcement Chief: “We Are Open for Business”

Thomas E. Perez, assistant attorney general for the civil rights division of the US Justice Department, had a clear and firm message when he visited Marquette University Law School on Friday: He’s aiming to do the job he has held since October energetically and thoroughly. 

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.” Continue reading “Civil Rights Enforcement Chief: “We Are Open for Business””

Intimate Associations and Public Employment

Posted on Categories Civil Rights, Labor & Employment Law, Privacy RightsLeave a comment» on Intimate Associations and Public Employment

Sexharass FirehelmetIn the past, I have written about my belief that public employees’ rights to sexual privacy should enjoy the same protection afforded First Amendment rights to speech and religion.

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.  Continue reading “Intimate Associations and Public Employment”

Supreme Court Takes Public Employee Informational Privacy Case

Posted on Categories Civil Rights, Labor & Employment Law, Privacy Rights, U.S. Supreme CourtLeave a comment» on Supreme Court Takes Public Employee Informational Privacy Case

4United States Supreme Court 112904 The United States Supreme Court granted cert today in the public employee privacy case of NASA v. Nelson, No. 09-530 (petition for cert here). The case will consider whether NASA, a federal agency, violated the informational privacy rights of employees, who worked in non-sensitive contract jobs, by asking certain invasive questions during background investigations.

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. Continue reading “Supreme Court Takes Public Employee Informational Privacy Case”