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”

Part of the Way Along the Path of Racial Equity

Posted on Categories Civil Rights, Race & Law, Speakers at MarquetteLeave a comment» on Part of the Way Along the Path of Racial Equity

US Supreme Court facadeLindsey Draper recalls that when he was a student at Marquette Law School, he would sometimes pause to look at photos of previous graduating classes. He would have a hard time spotting anyone who was African American like him.

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. Continue reading “Part of the Way Along the Path of Racial Equity”

Milwaukee Sheriff’s Religious Presentations to Deputies Violated Establishment Clause

Posted on Categories Civil Rights, Constitutional Interpretation, First Amendment, Labor & Employment Law, Milwaukee, Religion & Law, Seventh CircuitLeave a comment» on Milwaukee Sheriff’s Religious Presentations to Deputies Violated Establishment Clause

Car_police Interesting public employment case. Here are the facts of Milwaukee Deputy Sheriffs’ Association v. Clarke, 08-1515 (7th Cir. Dec. 4, 2009):

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.

Representation, Outcomes, and Fairness in Legal Proceedings

Posted on Categories Civil Rights, Human Rights, Legal Practice, Marquette Law School, Mediation, Milwaukee, Uncategorized, Wisconsin Civil Litigation, Wisconsin Law & Legal System5 Comments on Representation, Outcomes, and Fairness in Legal Proceedings

gideonAs my colleague Rebecca Blemberg recently blogged about, California has moved in the direction of recognizing a right to counsel for civil litigants with critical legal needs.

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.

Continue reading “Representation, Outcomes, and Fairness in Legal Proceedings”