Thursday, September 3, 2015

DOJ critical of Ferguson police response

EEOC Finds Women Profs Paid Less at Denver Law School | National Law Journal

Lucy Marsh, a teacher at University of Denver Sturm College of law since 1973 and a full professor since 1982 filed a complaint with the federal Equal Employment Opportunity Commission.  She alleges that Denver pays women less than men for comparable work.   A popular, innovative,and ward-winning teacher, she scores low on the prestige scale because she does not write the sort of doctrinal and theoretical pieces that academics especially value.

EEOC is a weak agency, with limited enforcement powers.  Their proposal that the University enter mediation has been embraced, however.  - gwc

EEOC Finds Women Profs Paid Less at Denver Law School | National Law Journal

by Karen Sloan

The Equal Employment Opportunity Commission has found evidence that the University of Denver Sturm College of Law has for decades paid female faculty less than their male colleagues.

The law school may owe as much as $1.2 million in back pay to female professors and could be liable for attorney costs and more for violating the Equal Pay Act, according to Equal Rights Advocates, a San Francisco-based nonprofit organization that helped represent longtime Denver law professor and complainant Lucy Marsh.

“I have considered all the evidence obtained during the investigation and find there is reasonable cause to believe there is a violation of Title VII in that there appears to be a continuing pattern or practice at the Sturm College of Law, dating back to as early as 1973, of compensating female law professors less than their male counterparts,” wrote EEOC Denver field office director John Lowrie in an Aug. 28 letter to the university.

The university knew of the pay disparity since at least 2012 but made no attempt to address it, the EEOC found. If the school does not comply with the law by granting back wages and future salary increases to the affected women law professors, the EEOC may sue, the letter warned.

“The University of Denver accepts the invitation from the EEOC and intends to enter into mediation and reach a just resolution to this matter,” according to a university-issued statement. “The University of Denver has long recognized that historic gender pay inequity was in place in the 1970’s throughout the United States, when Professor Marsh was hired.”

The statement also countered the EEOC’s conclusions, pointing to an independent consultant’s findings last year that law school faculty pay is based on current rank, performance evaluations, administrative roles and age when a faculty member’s current rank was attained. Any links between pay and gander were too weak to draw conclusions, the consultant found.

“In this era of cost containment and assessment we stand by our historical system of evaluation and merit pay,” said University of Denver Chancellor Rebecca Chopp.

Marsh, who has taught at the school since 1973, filed her complaint against the law school in 2013. She is paid $109,000 a year, compared to the median full professor salary of $149,000, according to Equal Rights Advocates.
Read more:

Racism, violence and the politics of resentment - The Washington Post

Racism, violence and the politics of resentment - The Washington Post

by E.J. Dionne

We have a choice to make.
We can look at violence and racism as scourges that all of us must join together to fight. Or we can turn the issues of crime and policing into fodder for racial and political division.
E.J. Dionne writes about politics in a twice-weekly column and on the PostPartisan blog. He is also a senior fellow in Governance Studies at the Brookings Institution, a government professor at Georgetown University and a frequent commentator on politics for National Public Radio, ABC’s “This Week” and NBC’s “Meet the Press.”View Archive
In principle, it shouldn’t be hard to recognize two truths.
Too many young African Americans have been killed in confrontations with police when lethal force should not have been used. We should mourn their deaths and demand justice. Black Lives Matter turned into a social movement because there is legitimate anger over the reality that — to be very personal about it — I do not have to worry about my son being shot by the police in the way an African American parent does.
At the same time, too many of our police officers are killed while doing their jobs. According to the National Law Enforcement Officers Memorial Fund, 1,466 men and women in law enforcement died in the line of duty over the past decade. We should mourn their deaths, appreciate the dangers they face and honor their courage.
Now I’ll admit: It’s easy for me to type these words on a computer screen. Circumstances are more complicated for those on either side of confrontations over the obligations of our police officers. Things get said (or, often, shouted) that call forth a reaction from the other side. A few demonstrators can scream vile slogans that can be used to taint a whole movement. Rage escalates.
Moreover, there are substantive disagreements over what needs to be done. Those trying to stop unjust police killings want to establish new rules and practices that many rank-and-file officers resist, arguing that the various measures could prevent them from doing their jobs. This resistance, in turn, only heightens mistrust of the police among their critics.
But politicians and, yes, even political commentators have an obligation: to try to make things better, not worse. There is always a choice between the politics of resentment and the politics of remedy. Resentment is easier.

Wednesday, September 2, 2015

How the Federal Government Built White Suburbia - CityLab

Image Mary Altaffer/AP

Levittown - the archetypal suburb - was sold with covenants to sell only to Caucasians - a fact that my fellow Levittowner Bill O'Reilly says he learned only a few months ago.  The house above is easy walking distance from the one where we lived until I finished sixth grade.  100% white.  The first time I saw a Black person in my life was at Jones Beach.  - gwc

How the Federal Government Built White Suburbia - CityLab

Federal housing policies didn’t just deny opportunities to black residents. They subsidized and safeguarded whites-only neighborhoods.

by Kristin Capps

Just two minutes into the first address at the 2015 National Fair Housing Conference on Tuesday, the conversation turned to Show Me a Hero. It was only a matter of time. Housing policy and Winona Ryder just don’t intersect that often.
But the conversation got real just as quickly. Richard Rothstein, a research associate at the Economic Policy Institute, gave a barn-burner of an address at the conference, a program convened by the U.S. Department of Housing and Urban Development.
“We’ve all forgotten how federal, state, and local governments consciously segregated our metropolitan areas by race,” Rothstein said.
His speech is a potent reminder. Rothstein delivered his address on modern residential segregation last year at The Atlantic’s “Reinventing the War on Poverty” conference. It’s worth your time to read the full talk. The rough outline below covers many of the policy levers that leaders at all level of government used to build and safeguard white residential areas.

The Federal Government Built Exclusively White Neighborhoods

  • Federally funded public housing got its start in the New Deal. From the very beginning, public housing was segregated by race. Harold L. Ickes, the U.S. Secretary of the Interior and the most liberal member of President Franklin D. Roosevelt’s brain trust, proposed the “neighborhood composition rule,” which said that segregated public housing would preserve the segregated character of neighborhoods. (This was the liberalposition. Conservatives preferred to build no public housing for black people at all.)
  • After World War II, the Federal Housing Administration (a precursor to HUD) and the Veterans Administration hired builders to mass-produce American suburbs—from Levittown near New York to Daly City in the Bay Area—in order to ease the post-war housing shortage. Builders received federal loans on the explicit condition that homes would not be sold to black homebuyers.
  • The Housing Act of 1949, a tentpole of President Harry Truman’s Fair Deal, greatly expanded the reach of the public housing program, which was then producing the most popular form of housing (!) in the country. In an effort to kill the bill, conservatives tried to tack on a “poison pill” to the legislation: an amendment that would have required public housing to be integrated.

Government Policy Guided Segregation at the Neighborhood Level

  • Way back in 1917, after the U.S. Supreme Court struck down certain segregation rules, Baltimore launched an official Committee on Segregation as a workaround. The committee organized neighborhood associations in order to promote restrictive covenants and otherwise intimidate white homeowners or real-estate agents who were selling to black buyers.
  • In St. Louis, segregated housing developments replaced neighborhoods that were roughly 55 percent white and 45 percent black.
  • San Francisco wanted to build integrated public housing near the Hunters Point Shipyard development, but the Navy wouldn’t allow it.
  • In 1984, The Dallas Morning News surveyed federally funded housing projects in 47 metro areas. All of them and their 10 million residents weresegregated by race. The white projects that remained by the 1980s had better facilities, amenities, and maintenance than the others.

Ghettoes Are the Mirror of White Suburbs

  • Pruitt–Igoe, the notorious and short-lived public housing project in St. Louis, was designed to be segregated. Pruitt was for blacks, Igoe was for whites. But by the time the development was completed in 1955, the housing shortage had grown less pressing for whites (thanks to efforts to repopulate them in the suburbs). The waiting list for Pruitt was long; Igoe experienced vacancies. Before Pruitt–Igoe met its early demise, its towers were entirely opened to black residents, like most formerly whites-only housing projects.

Courts Often Endorse a Myth of ‘De Facto’ Segregation

  • In 1974, Supreme Court Justice Potter Stewart argued in Milliken v. Bradley—a case about busing—that segregation in Detroit schools was caused by “unknown and unknowable factors.”
  • As recently as 2007, Supreme Court Justice Stephen Breyer and Chief Justice John Roberts ruled (in Parents Involved in Community Schools v. Seattle School District No. 1 ) that racially segregated neighborhoods were the result of de facto isolation, not de jure segregation. (Meaning that residential segregation was a matter of choice among residents, not consequence decided by law.)

A Federal Project Like Levittown Cannot Be Undone Locally

  • In 1947, white buyers could purchase homes in Levittown for $8,000 (which is roughly $84,000 in 2015 dollars). Today, the median housing value in Levittown is $365,000, per Census data. The Long Island suburb built more than 17,000 Levitt homes, nearly all of which were leased or purchased by whites, thanks to racial covenants guided originally by the terms of the Federal Housing Administration loans.
  • While African Americans are allowed to live in Levittown now, they by and large do not: The city’s population is 89 percent white and less than 1 percent black. New York City, meanwhile, is 26 percent black and just 44 percent white.
There’s more to Rothstein’s talk than a laundry-list of dates and figures, so read his essays about the root causes of contemporary segregation. Start hereor here or here or here. His challenge is consistent throughout.
“Government thinks things done by accident can only be remedied by accident,” he said. “Things done on purpose can only be remedied on purpose.

Tuesday, September 1, 2015

Google’s Driverless Cars Run Into Problem: Cars With Drivers - The New York Times

Google’s Driverless Cars Run Into Problem: Cars With Drivers - The New York Times

by Matt Richtel and Conor Dougherty

MOUNTAIN VIEW, Calif. — Google, a leader in efforts to create driverless cars, has run into an odd safety conundrum: humans.
Last month, as one of Google’s self-driving cars approached a crosswalk, it did what it was supposed to do when it slowed to allow a pedestrian to cross, prompting its “safety driver” to apply the brakes. The pedestrian was fine, but not so much Google’s car, which was hit from behind by a human-driven sedan.
Google’s fleet of autonomous test cars is programmed to follow the letter of the law. But it can be tough to get around if you are a stickler for the rules. One Google car, in a test in 2009, couldn’t get through a four-way stop because its sensors kept waiting for other (human) drivers to stop completely and let it go. The human drivers kept inching forward, looking for the advantage — paralyzing Google’s robot.

Direct-to-consumer drug advertising — beyond what you see on TV - Harvard Health Blog - Harvard Health Publications

Direct-to-consumer drug advertising — beyond what you see on TV - Harvard Health Blog - Harvard Health Publications


Direct-to-consumer ads must, by law, include information on a drug’s risks and side effects as well as its benefits. Often, this comes in the form of a rapidly recited list of potential problems. But because it is difficult if not impossible to cover all potential risks in a brief television spot, these ads must also point consumers to more complete information listed in a print ad or on a website. This information is usually a lengthy and technical text compiled by the drug companies — often, the very same text they give to doctors and pharmacies.
Consumers have complained that the information on side effects is so unclear and hard to read that they barely bother. In response, the FDA is now calling for a Drug Facts box that summarizes the most important risks of each drug, using plain English, color schemes, and easily readable fonts.
This change is a step toward giving consumers better “informed consent” before they decide to try a new drug. However, critics point out that the FDA has left much of what is included in the Drug Facts box up to the pharmaceutical companies. Aside from any “black box” warnings and “contraindications” (situations in which a person should definitely not take the drug), the only guideline is that the box must list the “most serious and most common” side effects. That could still leave out a lot of valuable information.
Informing consumers about new and potentially useful drugs is not a bad thing. However, a truly informed consumer should not rely solely on direct-to-consumer drug ads before making the decision to try a new one. Buyer beware: a new medication will undoubtedly be more expensive than older medications that can do the job just as well.
If you see an ad for a drug that you think might help you or be an improvement over medication you’re already taking, talk with your doctor. Be sure you understand the potential risks and side effects, both short- and long-term (and be aware that they are not as well understood in brand-new drugs). If your doctor says “no,” be prepared to hear her or him out. No matter how innovative a new drug might be, it may not be the right drug for you. And if you’re still interested after a while, you can always revisit the issue down the road.

Landmark solitary confinement settlement in California || CCR

"Solitary confinement literally drives men mad" said Associate Justice Anthony Kennedy, testifying in March 2015 at a Congressional hearing.  A Californian, he knew whereof he spoke as that state's enormous prison system has been the target of reformers.  And the Supreme court in Brown v. Plata (2011) ordered the state to reduce the prisoners it holds in order to relieve inhuman overcrowding.  The Center for Constitutional Rights has announced the settlement achieved in the federal class action suit Ashker v. Governor of California. - gwc

Center for Constitutional Rights Announces Landmark California Solitary Confinement Settlement.

This landmark settlement will effectively end indeterminate, long-term solitary confinement in California state prisons, fundamentally altering all aspects of this cruel and unconstitutional regime.  Ultimately, it is the result not merely of litigation, but of a widespread community effort led by prisoners and their families.

Key reforms include:

  • Prisoners will no longer be sent to solitary based solely on gang affiliation, but rather based on specific serious rules violations. The  Ashker settlement ends California’s status-based practice of solitary confinement, transforming it into a behavior-based system
  • Under the system challenged in the lawsuit, Prisoners validated as gang affiliates used to face indefinite SHU confinement, with a review for possible release to general population only once every six years, at which even a single piece of evidence of alleged continued gang affiliation led to another six years of solitary confinement. That evidence was often as problematic as the original evidence used to send them to SHU – for example, a book, a poem, or a tattoo that was deemed to be gang-related.
  • Under the settlement, California will generally no longer impose indeterminate SHU sentences. Instead, after serving a determinate sentence for a SHU offense, prisoners whose  offense is related to gang activity will enter a two-year, four-step, step-down program to return to the general prisoner population.  Prisoners will receive increased privileges at each step of the step-down program.
  • California will review all current gang-validated SHU prisoners within one year of the settlement to determine whether they should be released from solitary under the settlement terms.  The vast majority of such prisoners are expected to be released. 
  • Virtually no prisoner will ever be held in the SHU for more than 10 continuous years.
  • California will create a modified general-population unit for a very small number of prisoners who repeatedly violate prison rules or have been in solitary over 10 years but have recently committed a serious offense. As a high-security but non-isolation environment, this new unit allows prison administrators to begin to balance the humanity of the prisoners with the security of the prison, creating a realistic alternative to long-term solitary for the minority of  “hard cases.” Prisoners held in this unit will be allowed to move around the unit without restraints, will be afforded as much out-of-cell time as other general population prisoners, and can receive contact visits.
  • Prisoners themselves will have a role in monitoring compliance with the settlement agreement. Prisoner representatives will meet regularly with California prison officials to review the progress of the settlement, discuss programming and step-down program improvements, and monitor prison conditions.
For more detail on each of these reforms, please review our “Summary of Ashker v. Governor of California Settlement Terms.”

Saturday, August 29, 2015

Of Ferguson and Constitutional Theory // Mark Graber// Balkinization

Constitutional discourse today focuses on abstractions.  The Affordable Care Act is asserted to be an overreach because the "commerce clause" does not authorize the national government because "The individual mandate...does not regulate
existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce." (C.J. Roberts -NFIB v. Sebelius)

Same sex marriage must be recognized because it is a matter of "liberty" (Justice Kennedy - Obergefell v. Hodges).

But there is another way to approach the entire problem: how can we assure the health of our people?  Will we advance the "pursuit of happiness" by allowing people to bond in marriage regardless of sex?  That approach is a functional constitutionalism - not one that seeks to limit government.

The abstract approach leads those who write about the constitution to pay little heed to the question: how can we improve the lives of the people? Mark Graber addresses the problem. - gwc

Balkinization: Of Ferguson and Constitutional Theory

by Mark Graber

***Perhaps constitutional theory is partly returning to its late eighteenth century roots. A good deal of scholarship suggests that the main impetus for the Constitution of 1789 was a sense among elites that they were losing in state politics. Nationalizing politics would greatly improve the chance that rights elites believed were fundamental (contracts) would be protected while throwing obstacles in the paths of rights (binding instructions) less affluent Americans wanted protected. The Constitution of 1868 had a different premise. The persons responsible for the Fourteenth Amendment were far more concerned with constructing a constitutional politics that would protect persons of color than with determining the best interpretation of equal protection of the law, a matter on which they disagreed. If the citizens of Ferguson, Missouri are to be restored to their central place in American constitutionalism, we need to think more about the constitutional questions concerning how a constitutional order can be constructed that treats all persons with equal concern and respect and less about the interpretive questions historically at the margins of the constitutional enterprise.

Kim Davis Continues to Deny Same sex Marriage Applications, Defying Courts | Equality Case Files

Preliminary injunction against Dais prohibiting her from "applying her `no marriage licenses' policy" to future applications by any person qualified to marry under Kentucky law.9/3
Judge Bunning find Davis in contempt, incarcerates her until she complies 9/3
 6th Circuit orders mediate conference 9/2/15
FrCvP 70 Enforcing a Judgment
Kim Davis refuses to issue marriage licenses "under God's authority"
The contempt motion
Davis's reply brief 9/2
KY Senate Pres - Amicus Brief 9/2

Kim Davis -the Kentucky county clerk who has for two months (since Obergefell v. Hodges) refused to issue marriage licenses has petitioned Supreme Court Justice Elena Kagan for a stay of the order compelling her to issue a marriage license to a same sex couple.  Represented by Liberty Counsel (slogan Stand for marriage  Stand against Tyranny), Davis takes the stand urged by Catholic conservative lawyer/philosopher Robert George: Obergefell, like Dred Scott, is a decision that should be defied.

Davis - who is facing charges of official misconduct - seeks accommodation.  Perhaps her strongest argument is that she should be treated like conscientious objectors who refuse to carry a weapon.  But perhaps she should like Gandhi go to jail as an act of conscience, or like some C.O.'s be compelled to perform corporal works of mercy.  -gwc

Kim Davis SCOTUS Stay Application | Equality Case Files

The political ideology of American lawyers

Big survey, big database.  I suppose we're supposed to note that we're not surprised. - gwc
The political ideologies of American lawyers