I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Perhaps Professor O’Hear can straighten me out on this.

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant.

Continue ReadingI Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Taking Oaths Seriously

 

Most presidents take the oath of office twice in their lives only if reelected.  Yesterday night, Barack Obama took the oath – again –  from Chief Justice John Roberts because of the miscues during the inauguration ceremony the day before.  The media’s take, thus far, is to poke fun at what is called the “do over,” the “flub heard around the world,” (MSNBC) and the “oaf of office” (courtesy of the New York Post).  Yet at the same time, we are assured that Obama’s first oath was essentially good enough or perhaps even unnecessary for him to assume the presidency because the new term began at noon on January 20, 2009 regardless.  Yale’s Akhil Amar obligingly opined on NBC that the second oath was akin to “wearing both a belt and suspenders.” 

Personally, I’d find it somewhat unsettling if Obama began wearing a belt along with suspenders, so I think it is worth our time to take seriously an event that obviously the President and the Chief Justice took quite seriously.   I am very much impressed that Obama and Roberts thought the oath significant enough to warrant the second ceremony.  Clearly it was not done to deflect the embarrassment of the day before; indeed, the second oath only underscored their abject failure to recite correctly the 35 word oath – hardly a pas de deux.  I also doubt that either Obama or Roberts fretted about the legality of the inauguration ceremony; the second oath was not intended to avoid crack pot law suits.  

Continue ReadingTaking Oaths Seriously

Supreme Court Provides for Civil Rights Claim in Peer Sexual Harassment Case

In somewhat of a shocking fashion, the U.S. Supreme Court yesterday ruled to permit victims of peer sexual harassment in the educational context to pursue civil rights claims against schools and school officials under Section 1983, even if they have separate viable claims under Title IX.  The decision was unanimous, with Justice Alito writing for the Court.

The case of Fitzgerald v. Barnstable School Committee grows out of allegations that “paint a grotesque picture of peer-on-peer sexual harassment at the elementary school level.” The case involves these facts:

On the morning of February 14, 2001, Jacqueline Fitzgerald, a kindergarten student, informed her parents, Lisa Ryan and Robert Fitzgerald, that each time she wore a dress to school — typically, two to three times a week — an older student [third-grader] on her school bus would bully her into lifting her skirt . . . . in addition to pressing her to lift her dress, [the 3rd- grader] had bullied her into pulling down her underpants and spreading her legs . . . .

[T]he police department ultimately decided that there was insufficient evidence to proceed criminally against [the 3rd-grader].  Relying in part on this decision and in part on the results of the school’s own investigation, [the school district official] reached a similar conclusion as to disciplinary measures.

Continue ReadingSupreme Court Provides for Civil Rights Claim in Peer Sexual Harassment Case