Temple University’s sexual harassment code has been ruled unconstitutional. Inside Higher Ed explains why “The Court Got It Right.”
This month in an important victory for free speech on campus, the U.S. Court of Appeals for the Third Circuit held that Temple University’s former sexual harassment policy was unconstitutional. While free speech advocates from across the ideological spectrum cheered the Third Circuit’s ruling in DeJohn v. Temple University, some critics expressed dismay at what they deemed a “very ominous” example of “activist judging.” These critics are wrong — and it’s important for both students and university administrators to understand why.
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The DeJohn opinion should come as no surprise to public universities. District courts have been striking down overbroad harassment policies for nearly 20 years. Rather than reaching unexpectedly “ominous” or “activist” legal conclusions, DeJohn simply provided a reaffirmation of clearly established law.
August 18th, 2008
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Fitzroy |
Education, Law |
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The California Court of Appeals that essentially ruled against home schooling last March has reversed itself. Bowing to political pressure, the court agreed to rehear the case and issued a new, and different, opinion. The San Francisco Chronicle reports:
In its earlier ruling, the court said California’s compulsory education law requires parents to send their children ages 6 to 18 to a full-time public or private school or have them taught by credentialed tutors at home. After agreeing to reconsider the case in March, the same three-judge panel ruled Friday that parents – with or without teaching credentials – can comply with the law by declaring their home to be a private school.
According to coverage last March, the teachers union was quite pleased with the first ruling against home schools. But the public was not pleased. Governor Schwarzenegger pledged to change the law to eliminate the effect of the first ruling.
So the court changed its mind:
In a rare statement from the judiciary – which usually considers itself the ultimate authority on the meaning of the law – Croskey said the 1953 decision that applied compulsory education without exceptions has been effectively overruled in the real world.
How’s that? The binding precedent of a higher court has been overruled by the real world? The legislature did not pass a new law and no higher court made a contrary decision. Still, upon rehearing the case, the court reached a different result.
“Recent statutes indicate that the Legislature is aware that some parents in California homeschool their children by declaring their homes to be private schools,” Justice H. Walter Croskey, author of the earlier ruling, wrote Friday.
Croskey said one of those laws, a 1998 measure exempting parents from fingerprinting requirements imposed on private school employees, indicated “a legislative approval of homeschooling.” A 1991 law requires the state school superintendent to compile information on all private schools except those with five or fewer students, an exemption that was probably created for homeschools, Croskey said.
It seems to me that everything is wrong with this case – more than when wrote about the first decision. The decision of a higher court that forced the first decision still stands. The Education Code has not been amended. The Court of Appeals has said, on second thought, those authorities don’t really matter. The legislature, you see, is aware.
The first decision dealt a blow to home schooling, and home schooling is rapidly becoming the only way to educate your kids without paying private school tuition.
The fact that I support home schools, however, does not mean that California law agrees with me. The California Education Code, in fact, is hostile to home schooling. The Education Code makes attendance at public school compulsory for children aged 6 to 18, providing exemptions for children who (1) attend a private full-time day school or (2) are instructed by a tutor who holds a valid state teaching credential for the grade being taught. And the California Supreme Court has ruled that this provision is constitutional.
The Court of Appeals has now rejected the precedent of a higher court and decided that the Education Code no longer means what it says, and it did this because the public doesn’t like the law.
Thus, the court has taken on the role of the legislature in a very transparent way, bowed to public pressure, and given notice that it will not be bound by any law. Courts do this routinely, but they usually make some attempt to cover their tracks.
There were two ways to handle the problem without doing violence to the rule of law. The first ruling could have been appealed to the California Supreme Court, which could then have decided that the Education Code is, after all, unconstitutional. Whether this were done or not, the legislature could have amended the Code.
But no, the judiciary is in the habit of legislating, the legislature is in the habit of deferring to the courts, and the executive branch frequently acts as enabler – all with disastrous results.
Home schoolers may be happy with this result, but their happiness comes only from the fact that a tribunal acted arbitrarily in a way that benefits them. There is no reason to hope that this dysfunctional and undemocratic governing by the courts will produce anything but chaos in the future.
August 9th, 2008
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Andrew McCarthy advances a pragmatic and much needed solution to the judicial usurpation of power in Boumediene. Suspend the writ of habeas corpus.
“What?” you shudder. Have you lost your mind? Has this Bush-whacky Constitution-shredder finally gone off the deep end?
No. Not even a little. I’m not talking about suspending the old writ of habeas corpus, the one that protects all Americans inside the United States.
I’m talking about suspending the new writ invented on June 12, 2008. The faux writ that Justice Anthony Kennedy and his four associates in the Boumediene majority weaved out of whole cloth. The writ that runs only to the protection of America’s foreign enemies in a war Americans overwhelmingly support. The writ that purports to extend the jurisdiction of the courts – which is to say, the rule of judges – anyplace on the planet where the federal government acts and where the American military fights.
I am talking about restoring the separation of powers and the proper, limited role of the United States courts.
Let’s all refer to our copies of the Constitution, Art. III, section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art. I, section 8 lists among Congress’s enumerated powers “To constitute Tribunals inferior to the supreme Court” and “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”
The Court in Boumediene, however, decided that it has the power to alter Congress’s rules concerning the conduct of warfare and to delegate the making of new rules to the (inferior) district courts. Not content with arrogating to themselves decisions about how to conduct warfare, who the enemy is, where the battlefield is, and how the troops should go about their business,
. . . Justice Kennedy & Co. also undertake to dump the whole mess on the very federal district judges Congress cut out of the equation – as it was Congress’s perfect right to do – in the 2005 Detainee Treatment Act and, more emphatically, in the 2006 Military Commissions Act.
While McCarthy’s suggestion may sound radical, it is not. He simply suggests that Congress exercise its rightful authority to say that the Writ of Habeas Corpus is today precisely what it was for the 219 years preceding Boumediene, and that it is suspended only to the extent it was recklessly expanded by the Court.
Returning to the Constitution: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, section 9. (We can leave for another day the interesting use of the word “privilege” as opposed to “right.”)
So does Congress have the authority to suspend the writ? Is this really a case of rebellion or invasion? McCarthy points to 9/11 as sufficient grounds. I would also argue that if Boumediene’s extension of habeas corpus is based on the United States’ de facto sovereignty on foreign soil, then rebellion and invasion can also be found in the same foreign territory. Justice Kennedy also relies on the fact that Congress has not suspended the writ, and were Congress to do that, one leg of Boumediene would be eliminated.
The judiciary has enjoyed free reign for most of the past century. It has seen itself, in a gross over-extension of Marbury, as the only authoritative branch of government, and the other branches have done nothing to counter that impression. Suspending the writ on foreign soil would provide an excellent object lesson concerning the court’s overreaching, perhaps begin to turn the tide away from judicial oligarchy, and help restore a proper balance of power.
McCarthy’s article deserves a careful read.
July 23rd, 2008
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The Third Circuit Court of Appeals has thrown out the fine levied by the FCC against CBS for Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl halftime show.
Andrew Jay Schwartzman of the Media Access Project, which filed a friend-of-the-court brief on behalf of a group of TV writers, directors and producers, said the ruling “is an important advance for preserving creative freedom on the air.”
Creative freedom to do what? Have a malfunction? It’s hard to buy that excuse:
The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, “Gonna have you naked by the end of this song,” as he reached for Jackson’s bustier.
And apparently Janet Jackson had planned the stunt:
The FCC had argued that Jackson’s nudity, albeit fleeting, was graphic and explicit and CBS should have been forewarned. Jackson has said the decision to add a costume reveal—exposing her right breast, which had only a silver sunburst “shield” covering her nipple—came after the final rehearsal.
Silver sunburst shields – worn by performers everywhere in case their other garments accidentally fall off. No, the wardrobe functioned as planned.
The creative content of a Jackson’s breast – what artistic insight, what bold juxtaposition of forms, what an amazing dime-store trinket covering the areola!
But our illustrious court of appeals missed the significance of this creative breakthrough and held Jackson’s breast (so to speak) artistically mundane – so mundane that CBS didn’t have sufficient warning that flashing it on national TV during the most watched “family” event of the year might be considered indecent. The FCC, according to the court, deviated from its 30-year practice of only fining for events so “pervasive as to amount to ’shock treatment’ for the audience.”
The event was intended to shock, to stick a thumb (or whatever) in the collective eye of the unfortunate masses in flyover country, clinging to their religion and false modesty.
But our sophisticated judges were not shocked, and they don’t think the rest of us were either, even though the event was reported that way at the time and still commands significant attention more than four years later.
Rest assured that it will be harder to shock us in the future (although those who hail this decision as “preserving creative freedom on the air” will try their best) and that the courts will continue to ratchet standards of decency ever downward.
July 21st, 2008
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Great Apes are currently found in 21 countries in Africa and two countries in Southeast Asia. Those apes need to go to Spain where they will now enjoy basic human rights. MercatorNet explains:
Spain will become the first country in the world to extend some human rights to apes. From now on, the great apes – gorillas, chimpanzees and orang-utans – will enjoy the right to life, the right to the protection of individual liberty, and the right to prohibition of torture. “This is a historic moment in the struggle for animal rights,” Pedro Pozas, the Spanish director of the Great Apes Project, told the London Times. “It will doubtless be remembered as a key moment in the defence of our evolutionary comrades.”
Times Online reports that there are only 350 apes in Spain – all of them in zoos. Those apes will remain incarcerated without any right of habeas corpus, and the law inexplicably bans them from the entertainment industry where apes have historically achieved some of their greatest success.
Using apes in circuses, television commercials or filming will also be banned and while housing apes in Spanish zoos, of which there are currently 315, will remain legal, supporters of the bill have said the conditions in which most of them live will need to improve substantially.
But with its total ape population at a measly 315 to 350 apes, Spain might be criticized for making an empty, purely symbolic gesture. Anyone who really cares about simian quality of life should be helping apes to emigrate to Spain. Give Spain the chance to prove it’s serious! Soon you should be able to adopt an ape and move to the Costa Brava where your ape can enjoy its human rights in the sun and surf.
MercatorNet laments the loss of a more robust variety of leftists in Spain, who took up the plight of the downtrodden. The wimpy, Peter Singer version of leftism leaves a lot to be desired. But I think Spain can rise to the occasion, if only we send enough apes to allow the Spaniards to prove their mettle.
It will improve Spain’s image and give the apes a better place to live. You can read about the destruction of the apes’ natural habitat, by the way, at the Great Ape Trust of Iowa.
Iowa? How many apes are there in Iowa?
Image by youngrobv – Creative Commons
July 18th, 2008
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Law |
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Jean-Alix Miguel murdered his wife, a crime that earned him a paltry 7 years in prison. When he got out of prison, he got a job teaching school in Montreal. It took the school board 6 years to do a background check on Miguel, and when they discovered his murder conviction they fired him – not for being a confessed murderer, but for failing to disclose it on his application.
Not weird enough for you? Well, Miguel took his firing to arbitration, and won. It seems that the arbitrator didn’t agree that the school board fired Miguel for lying on his application. No, the arbitrator thought that was just a ruse, and that the school board actually fired Miguel for being a murderer. Can’t have that! Miguel was reinstated.
Wingless has this story of murder discrimination.
July 16th, 2008
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Education, Law |
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Beldar looks at the two controversial opinions issued by the Supreme Court at the end of the last term. In Kennedy v. Louisiana, the court held that “evolving standards of decency” precluded the death penalty in cases of child rape. But the court based its decision largely on an inaccurate assessment of the trends. Justice Kennedy wrote that Congress had recently expanded the crimes meriting the death penalty, but had not included rape or child abuse among them. Congress did exactly that, however, in the Uniform Code of Military Justice.
In Boumediene v. Bush, the court “extended American constitutional rights to foreigners held by the American military on foreign soil who are alleged to have engaged in illegal warfare against America entirely from abroad.”
Beldar sees a pattern:
Every member of the Court, and every one of their law clerks and staff members — including each of the five Justices in the Boumediene majority — have now been conclusively proven by their screw-up in Kennedy v. Louisiana to be utterly ignorant of even such important details about the UCMJ as what crimes under it are punishable by death.
Five of the same Justices who didn’t know enough about the UCMJ to know that it currently allows for capital punishment for child rapes nevertheless felt righteously, omnipotently competent to plunge themselves and the rest of the civilian federal courts into overturning — and then taking over, via their habeas corpus powers — the UCMJ-based system for determining the fates of these military prisoners.
July 12th, 2008
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William Saletan has a story in Slate about community standards.
It seems a defendant charged with purveying obscene materials on the internet is arguing that the state cannot meet its burden to show that he violated “contemporary community standards.” The relevant standard, he argues, is what people do on the internet. His defense lawyer explains that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon,” and because the interest in sexual subjects exceeds that of more mainstream topics, the materials distributed by his client are not “outside the norm.”
Saletan makes some good points, and shuns the cheap argument about hypocrisy.
We’re all hypocrites. We want our kids to avoid the mistakes we’ve made and to become better people than we are. We also want improvement from ourselves. Morality’s purpose is to prescribe, not describe. It aspires to something better than our current behavior.
Well said. There are distinctions – appropriate ones – between what we think, what we do in private, and how we behave in public.
The Internet has confused these distinctions. Now the private you can sneak around the semi-private you and become semi-public. Your fantasies are no longer confined to your head. They’re visible, in the aggregate, on Google Trends.
But a marketing consultant I know takes a different approach. He says comparing the Google statistics on “orgy” and “watermelon” proves something quite different.
The people are searching Google for “orgy” not because the community is obsessed with porn, but because porn is not readily available in public, while watermelons are, in fact, readily available, and do not need to be found online. In other words, the community standards are very much anti-porn, which is why a few folks not in step with community standards are looking in other places for things most of their local community shuns.
He has a point. The internet seems to be part of our private lives – a place where you can indulge certain urges that you might suppress in polite company. The defendant, however, was not distributing materials on the streets or at the Rotary Club. He was operating in the very un-polite world of cyberspace.
In fact, I think there is another community that needs to be acknowledged, and that is the community (or “sub-community”) you might find in the porn shops and strip clubs. Naturally I claim no particular expertise here, but the sex industry is multifaceted and brings with it other undesirable elements: crime, economic decline, personal degradation, and college professors. People who search for “orgy” on the internet may well be opting to consort with a cyber community that they find more palatable than the warm flesh congregated in the adult video store. The internet has removed one of the biggest deterrents to buying porn: standing in line at the cash register.
But I come back to Saletan’s point: “Morality’s purpose is to prescribe, not describe.” The law currently favors mere description, and this obscenity case will be decided on the basis of how the community is described. In the end, the community will get not what it wants, but only what it already has. The fact that the community may pass laws that aspire to a higher standard will be disregarded as the courts rush to the defense of any obscenity that gains a toehold.
July 7th, 2008
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Andrew McCarthy did some fact checking on Justice Anthony Kennedy, and the Justice came up short.
Kennedy’s opinion in the 5-4 ruling banning the death penalty for child rape relied on the unsupported notion that a national consensus exists against such punishment. On that basis, the court overturned the death sentence of “a grown man whose sexual assault of his eight-year-old step-daughter was so savage a forensic expert described the resulting wounds (which required emergency surgery to save the child’s life) as the worst he had ever witnessed.”
We noted the “evolving standards” fiction in “Defining Decency Down.”
Kennedy found evidence for the consensus based on the fact that 36 states have the death penalty but it applies to child rape in only 6 states. In this faulty logic, 83% of states with the death penalty agree with Kennedy. One wonders of course how a consensus can be presumed to exist against something passed by the democratically elected legislature of a state and signed into law by its duly elected governor.
Kennedy found additional evidence of a national consensus in recent congressional action, writing:
As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse…. [A]n offender is death eligible only when the sexual abuse or exploitation results in the victim’s death.
But McCarthy shows that Congress provided precisely the opposite in 1996, adding the death penalty for child rape that does not result in death to the Uniform Code of Military Justice. He shows Kennedy’s supposed national consensus to be a transparent fraud intended to justify the whims of a slim court majority.
The vaporous slogan posing as a standard is the spoon full of sugar that helps the Court’s enlightened medicine go down. The handiwork that results is not a reflection of our evolved values; it is five lawyers dragging the benighted masses kicking and screaming toward its Utopia – where brutalized eight-year-old girls, like murdered innocents and terrorized cities, are not flesh-and-blood but the props by which we measure how “maturely” we indulge their tormentors.
The case, ironically styled Kennedy v. Louisiana, should really be viewed as a prime example of Justice Kennedy versus the democratic process in all 50 states.
July 3rd, 2008
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Rolando Domingo Montez, 19, was mercilessly strangled by a telephone cord. Overlawyered recounts the tragic tale. The jail in which he was being held failed to keep adequate watch over the lethal device, although any fool could see that it might strangle someone if provoked. And Montez apparently provoked it sufficiently by using the telephone to call his mother to come get him out of jail. Shortly thereafter, he was dead. Pity Montez.
The fact that Montez undisputedly committed suicide with the telephone cord would not deter the plaintiff’s bar from seeking justice in this case. Montez’s mother sued the taxpayers and JWC Electronics, manufacturer of the telephone. In South Texas, such suits have a history of success, and indeed the jury assigned responsibility 60% to Montez, 25% to the taxpayers, and 15% to JWC.
For those who care about Texas law, because Montez was more than 50% responsible, the plaintiff cannot collect damages from the others. A court of appeals, however, was willing to overlook that technicality by finding that JWC was not liable for a tort but for breach of an implied warranty. (Manufacturers, you see, apparently give implied warranties that you will not use their product to kill yourself.) The Texas Supreme Court didn’t buy that argument and JWC got off the hook.
For those who care about living in a sane society, you should consider it progress that the jury assigned a whopping 60% responsibility to the person who conceived and executed the suicide. This is progress in a world where the New York Port Authority is assigned 68% of the blame for the 1993 World Trade Center bombing, relegating the terrorists themselves to bit players.
July 2nd, 2008
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