June 2018

  • June 19, 2018

    by Guy-Uriel Charles, Edward and Ellen Schwarzman Professor of Law and Senior Associate Dean for Faculty & Research, Duke Law School.* 

    *Charles recently served as a panelist on the Making Census of the Population and Redistricting session at ACS's National Convention. 

    The wait is over. The Supreme Court has finally decided arguably the most anticipated Supreme Court decision argued this term, Gill v. Whitford, the partisan gerrymandering case arising out of Wisconsin. However, to call the Court’s opinion in Gill a decision is misleading in this context.  The Court did not even decide the threshold question raised by the case, which is whether partisan gerrymandering claims are justiciable and did not come close to deciding the merits, the constitutionality of partisan gerrymandering claims. It’s hard to believe that we waited this long for this. (And the Court’s decision in the Maryland gerrymandering case, Benisek v. Lamone, affirming the district court’s decision to deny the plaintiffs’ motion for a preliminary injunction is barely worth mentioning). But as it turns out, the story here is not Justice Roberts who authored the majority opinion but Justice Kagan who penned a concurrence.

  • June 18, 2018

    by Caroline Fredrickson

    The FBI Director Christopher Wray and Department of Justice Inspector General Michael Horowitz are on the hot seat. This week Senate and House panels plan to grill these officials about FBI’s decision-making in the probe into presidential candidate Hillary Clinton’s use of a private server.

    I noted in a recent USA Today opinion that lawmakers conducting responsible oversight over Department of Justice should take care to avoid adding to the chaos and confusion created by the President’s ludicrous claim that he’s “totally exonerated” in the Russia probe by the IG report.The substantive allegations that Special Counsel Mueller is reviewing regarding collusion with Russia and obstruction of justice were not the subject of the IG report, and it is inappropriate to conflate these matters.

  • June 18, 2018

    by Art Leonard*, Robert F. Wagner Professor of Labor and Employment Law, New York Law School and Eric Lesh, Executive Director, LGBT Bar Association of Greater New York.

    The United States Supreme Court ruled on June 4 that overt hostility to religion had tainted the decision process in the Colorado Civil Rights Commission when it ruled that baker Jack Phillips and his Masterpiece Cakeshop had unlawfully discriminated against Charlie Craig and Dave Mullins in 2012 by refusing to make them a wedding cake.

    Even though the Cakeshop ruling devoured the headlines, there were a number of other LGBT cert petition pending before the highest court. Here are some of non-cake related LGBT controversies on that Supreme Court docket this Term.

  • June 18, 2018
    Guest Post

    by Gregg Ivers, Professor of Government, American University*

    Until the early 1960s, American college campuses were among the last places that one could expect to find raging debates over controversial ideas or alleged administrative efforts to limit the “free expression” of students, faculty or invited guests. In fact, quite the opposite was true. Slightly less than ten percent of all Americans completed a bachelor’s degree at a four-year university in 1960. And that even takes into account the enrollment boom after World War II, when returning veterans used the newly enacted G.I. Bill to attend college. By 1947, World War II veterans made up roughly fifty percent of college students in the United States. That trend continued into the 1950s after Congress enacted additional legislation to support Korean War veterans who wanted to earn a college degree. Not surprisingly, men, by 1960, attended and completed college at roughly double the rate of women. Due to restrictive admissions policies and cultural norms, many women attended private women’s colleges rather than elite private universities reserved for men or the flagship public institutions of their state.  The college gender gap did not begin to close in a meaningful way until the early 2000s. By 2013, women attended and completed college at higher rates than men, regardless of race or ethnic origin, a trend that has remained consistent through 2017.

    For African Americans in 1960, entering college and completing a bachelor’s degree were even more elusive goals. Somewhere between two and three percent of African American men and women were enrolled in four-year institutions in 1960, almost all of whom attended black colleges and universities. Although the Supreme Court had ruled well before Brown v. Board of Education (1954) that white public universities could not exclude African American students if “equal opportunities” were not available to them at black institutions within their state, most Jim Crow states of the South were dragged kicking and screaming to desegregate their ever-growing systems of higher education. Governor George Wallace’s petulant “last stand” against a federal court order to admit James Hood and Vivian Malone into the University of Alabama in June 1963 marked the formal end to segregated public higher education in the United States.

  • June 14, 2018

    by Richard Schragger, Perre Bowen Professor, Joseph C. Carter Research Professor of Law, University of Virginia School of Law*

    Recently, the Tennessee legislature voted to punish the city of Memphis for removing two Confederate statues by striking a $250,000 state appropriation that was to be used for the city’s bicentennial celebration. The mayor and city council, representing the will of the majority-black city, had previously agreed to sell the two city parks in which the monuments stood to avoid a state law preventing the city itself from removing the statues. The new private owner was under no such restriction. Unhappy with Memphis’s legal end-run around state law, the Republican-dominated legislature expressed its displeasure by cutting off funds.     

    Legislative retaliation against progressive cities is an emerging theme across the United States. Donald Trump has threatened to cut-off federal aid to “sanctuary cities”—those cities that have refused to comply with federal immigration mandates or have resisted cooperating with federal immigration authorities. The Texas legislature has adopted similar legislation that bars local officials from adopting sanctuary policies on pain of criminal and civil penalties and potential removal from office. Other states have simply overridden progressive local laws, preventing cities from mandating local minimum wages, regulating paid sick days, adopting gun regulations, passing LGBT anti-discrimination ordinances, or operating municipal broadband networks. The last half-decade has witnessed an explosion of preemptive state legislation seeking to “rein-in” wayward (often progressive-leaning) cities.