Category: Civil Rights

5

Quarantines (and Law?)

The news has, understandably, been saturated the last two days with the story of the U.S. citizen infected with a drug-resistant form of TB who has been quarantined by the federal government, the first time in over four decades that the feds have invoked such an important and exceptional authority.

Missing from nearly all of the accounts that I’ve read, though, is any discussion on the law of quarantine, an essential aspect of national security law, and yet one that has been largely neglected in the aftermath of 9/11. The seminal case, of course, is Jacobson v. Massachusetts, in which Justice Holmes held that the state’s compelling interest in protecting the public health outweighed an individual’s Fourteenth Amendment-based liberty interest. But Jacobson is over a century old, and there are lots of subsequent developments that suggest that Holmes’s open-ended reasoning may not be quite so limitless today.

All of this raises the question of why we seem indifferent to the legal implications. Don’t get me wrong — I’m not suggesting that the government lacks the authority to quarantine individuals infected with TB. 42 U.S.C. 264 seems to expressly provide to the contrary. But on the theory that every case is precedent (except Bush v. Gore, anyway), shouldn’t this case provoke at least some discussion of the current legal authorities vis-a-vis quarantine, and the constitutional issues that invocation of such a sweeping power to detain naturally raise?

Redistribution as/and Recognition

WaterBurning.jpgIn a methodologically interesting essay, Harvey Mansfield makes a silly substantive argument:

You can tell who is in charge of a society by noticing who is allowed to get angry and for what cause, rather than by trying to gauge how much each group gets. Blacks and women wanted benefits only as a sign of equality, not to give themselves greater purchasing power.

I’m much more partial to my colleague Shavar Jeffries’ point that “black people need radical substantive change in their quality of life;” symbolic politics means little in the face of inequalities that greatly reduce individuals’ chances at health care, education, and safe and affordable housing.

This is perhaps why Nancy Fraser worries that “insofar as the politics of recognition displaces the politics of redistribution, it may actually promote economic inequality; insofar as it reifies group identities, it risks sanctioning violations of human rights and freezing the very antagonisms it purports to mediate.” But unlike Walter Benn Michaels and Mansfield, Fraser believes “struggles for recognition can [legitimately] aid the redistribution of power and wealth.” Her books, including Unruly Practices, give some fascinating examples of how that can happen. If you’re tired of reading, check out Deepa Mehta’s film Water.

So why did I think the Mansfield essay methodologically interesting?

Read More

Short Course on Some Origins of Inequality

no child left behind.jpg

Recently my law school’s clinic “filed a class action lawsuit in federal court on behalf of all parents of children attending Newark Public Schools who are being denied their rights under the No Child Left Behind Act.” BlackProf regular Shavar Jeffries is lead counsel for the plaintiffs, who charge that the “Newark Public Schools district has systematically failed to meet even the Act’s minimum notification requirements.”

In honor of that effort, I’m highlighting a fascinating article from the NYT Magazine by Paul Tough on the challenges facing the No Child Left Behind (NCLB) effort. The article notes that NCLB aims to erase a persistent achievement gap between African American and white, and lower and middle/upper class, students (by 2014). It summarizes two bodies of literature on the subject:

The first is about causes; the second is about cures. The first has been taking place in academia, among economists and anthropologists and sociologists who are trying to figure out exactly where the gap comes from, why it exists and why it persists. The second is happening among and around a loose coalition of schools, all of them quite new, all established with the goal of wiping out the achievement gap altogether.

The “causes” literature is fascinating. I’ve heard about studies like Lareau’s Unequal Childhoods for some time, but the quantifications provided in the article are compelling:

By age 3, the average child of a professional heard about 500,000 encouragements and 80,000 discouragements. For the welfare children, the situation was reversed: they heard, on average, about 75,000 encouragements and 200,000 discouragements. Hart and Risley found that as the number of words a child heard increased, the complexity of that language increased as well. As conversation moved beyond simple instructions, it blossomed into discussions of the past and future, of feelings, of abstractions, of the way one thing causes another — all of which stimulated intellectual development.

I’ve heard similar explanations of a new gender gap in academics; social critics claim that boys too often succumb to a “dude culture that demeans academic achievement” and discourages expression of ideas.

So what are the solutions? They involve massive effort, and will test whether NCLB is mere opportunistic “symbolic politics” or a real effort to address inequality.

Read More

2

New Insights Into Guantanamo Bay Detention Hearings

This morning, NPR played excerpts of several Guantanamo Bay detention hearings. Portions are available here. These hearings were conducted in 2004 to determine whether the individuals should be treated as “enemy combatants.” Unfortunately, the recordings are of relatively low quality. In any case, they provide only limited insight into the totality of the process. Meanwhile, Mark Denbeaux of Seton Hall studied over 400 detentiion hearings. His conclusion: all of them ultimately resulted in the suspects being found “enemy combatants.” (On a couple of occassions, the hearings had to be redone to allow for this conclusion.) More on this from NPR as well.

28

Supporting Racially Inclusive Schools

blackwhite kids.jpgYesterday, briefs supporting school districts’ authority to adopt race conscious student admissions plans in public schools were due to the Supreme Court. The plans in both cases, Meredith v. Jefferson School District and Committee of Involved Parents v. Seattle School Board, were upheld in their respective circuits — and are extraordinarily important to anyone who is concerned about racial integration in our public schools. As the NAACP Legal Defense Fund stated in its website today, these cases give the Court an opportunity to preserve some measure of integration in our public schools, or to end the era of Brown. In interests of full disclosure, I co-authored a brief with my colleague Michelle Adams on behalf of the National PTA arguing that education in a multi-racial context is a compelling government interest. Our brief, and the many other amicus briefs submitted in the case, are available here.

Many of the multiple amicus briefs focused on the specific benefits to children from primary and secondary education in a multi-racial setting. These briefs assume that the parties have the burden of meeting the strict scrutiny standard — thus establishing that the use of race this context serves a compelling interest and that the means are narrowly tailored. Others, however, argue a very different point. As Michelle Adams noted here in June when the Supreme Court took these cases, in Judge Kozinski’s concurrence in the 9th Circuit, he disputed that strict scrutiny applied in the context of non-magnet public schools. He suggested that any admissions plan that does not involve competition between racial groups and does not favor one race over the other does not carry any sort of racial stigma — and therefore that strict scrutiny need not apply. NAACP LDF presents this argument most thoroughly and completely in its amicus brief

These cases will undoubtedly garner a great deal of attention, both because of the importance of the issues to public schools throughout the country, and also because they will give us a sense of how the loss of Justice O’Connor and the ascension of Chief Justice Roberts and Justice Alito will affect the Court’s decisionmaking on race issues more generally.

1

Blogger Wrong, Issues Embarrassing Retraction

I payoff on my bets! In a post last May, I argued that a Fourth Circuit panel in Jordan v. Alternative Resources Corp. had erroneously dismissed an employment discrimination claim. The case involved a situation where white workers watching a news account about the DC snipers had said, in front of an African-American employee, “they should put those two black monkeys in a cage with black apes and let the apes fuck them.” The court found that NO reasonable African-American man, having heard these comments at work, could ever have concluded he was experiencing a hostile environment.

I suggested that despite the conservative nature of the Fourth Circuit, this outcome was sufficiently problematic that the court would reverse en banc. MJ, in a comment, issued a bet that it would not reverse. He promised to post the lyrics to “I Was Wrong” by Social Distortion if the case was reversed. I responded that I would put up a post with the above title. Paul Gowder chimed in that he thought the case would not even be heard en banc.

Paul was right, and thus so was MJ. I was wrong. The Fourth Circuit declined to rehear the matter en banc, albeit in a 5-5 tie, with two judges recusing (Motz and Williams). Interestingly, one African-American judge, Allyson Duncan, voted to deny rehearing. Judge Wilkins – a very conservative South Carolinian – voted to rehear. I must admit, I’m not feeling much embarrassment. In my view, some folks on the Fourth Circuit should be.

13

Expertise and the Blawgosphere

TortureRack.jpgA recent, well-publicized, comment thread over at the VC caught my attention. In it, Professor Ilya Somin explained his silence on the habeas/torture legislation as a combination of humility and utility maximization:

I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others.

Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.

Marty Lederman commented:

The odd thing is figuring out why many of the VC bloggers have not been *interested* in becoming more informed about these questions, and about this legislative initiative — *not* because they are bloggers or even legal bloggers (heaven knows we don’t want every legal blog to pretend to be expert in such questions), but because many of them are committed *libertarian* bloggers who are obviously impassioned and informed about many other arrogations of state power and threats to individual liberty.

It is a debate with some bite, I think, for this blog. We aspire to be a general interest law blog, with mostly serious content. But we have demonstrated little collective interest in the habeas/torture problem. Sure, we’ve had a few posts, but nothing like the sustained attention given by Balkinization, or Opinio Juris. The question I wonder about is whether a blog that claims to be a general interest legal forum has a duty – if it is to be respected – to weigh in the big legal questions of the moment.

Read More

9

Gender and the Eve-of-Wedding Prenup

Gender wars are alive and well in the blogsphere recently. While it seems to me that more than enough cyber ink has been spilled over boobgate and the fracas over Above the Law, I do think that the role of gender in law and culture continues to be actually difficult and worth discussing. I am teaching Family Law for the first time this semester and have noticed that my students often find ideals of formal sex equality extremely unsatisfying. As an example, I offer the enforceability of the eve of wedding prenup.

wedding.jpg

Let’s imagine a couple — Catherine and Fred. Catherine is a 23 year old nurse and Fred is a 39 year old neurosurgeon. On the night before their wedding, Fred’s lawyer presents Catherine with a prenup limiting her to support payments of $200 per week with a max of $25,000 should their wedded bliss end in divorce. Catherine signs — without any legal advice. Should this be enforceable?

Read More

3

NY Court of Appeals Decides Same-Sex Marriage Case

New York’s highest court handed down its eagerly anticipated decision in Hernandez v. Robles this morning. The court first decided that New York statutes did in fact limit marriage to opposite-sex couples, then proceeded to analyze that restriction under a rational basis test, defining the relevant right as not the right to marry a person of one’s choosing, but “[t]he right to marry someone of the same sex.” It found that the New York legislature could have had rational bases for drawing a line between opposite-sex and same-sex couples:

Read More