Monthly Archives: September 2022

Paxton Works to Safeguard First Amendment Protections for Religious Group Facing Illegal Discrimination – Texas Attorney General (.gov)

Posted: September 29, 2022 at 12:50 am

Attorney General Paxton has joined an Alabama-led multistate amicus brief in the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit, fighting to defend the First Amendment rights of a Jewish synagogue facing unconstitutional discrimination.

The case revolves around the Hillsborough Area Regional Transit Authority (HART), a publicly-funded transit system, that refused to allow Young Israel of Tampa to advertise its Chanukah on Ice program pursuant to a policy banning religious advertising. After the district court enjoined its policy, HART appealed to the Eleventh Circuit.

As the courts have ruled on several occasions, public entities violate the First Amendment when they engage in viewpoint discrimination, regulating speech based upon disagreement with the point of view being expressed. That is precisely what HART did here.

HART further departed from the First Amendment by lumping in all religious advertising with more traditional categories of prohibited advertising, such as ads containing graphic violence or nudity. It flies in the face of the First Amendment, and the American tradition of respecting religious freedom, for HART to draw a moral equivalency drawn between a synagogue hosting a community event commemorating a religious holiday and pornographic or violent advertising

As the brief states: [T]he policy is at odds with the history and tradition of the First Amendment, sends the perverse message that religious discourse is like the other subjects HART bans (alcohol, pornography, discriminatory messages, and the like), conflicts with modern First Amendment jurisprudence forbidding viewpoint discrimination, and flunks even HARTs preferred test for content-neutral speech restrictions.

To read the full brief, click here.

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It’s Not Clear Whether Public-College Professors Have First Amendment Rights When They’re Teaching – The Chronicle of Higher Education

Posted: at 12:50 am

Professors at public universities have no right to freedom of speech when they teach, lawyers for the State of Florida argued in a court filing last week. Over the past few days, many academics have expressed outrage, describing Floridas stance as a direct, troubling attack on academic freedom. Some have even called it fascist.

But theres genuine uncertainty over the extent to which the state can dictate what state-college instructors teach, two law professors told The Chronicle.

As college instructors themselves, they obviously had a stance. Yet they admitted that existing law and precedent isnt entirely clear. It remains more of an open question than those of us who are academics would like it to be, said Frederick Schauer, a First Amendment scholar at the University of Virginias School of Law.

The court filing was in defense of the states Individual Freedom Act, commonly known as the Stop WOKE Act, which bars instructors at public institutions from teaching certain ideas related to race, racism, and sex, and which at least two groups of students and professors have sued over.

The curriculum used in state universities and the in-class instruction offered by state employees count as the Florida governments own speech, the lawyers wrote. Therefore: The First Amendment simply has no application in this context.

Its a powerful argument if you can get it accepted, said Timothy Zick, a professor who teaches about the First Amendment at the William & Mary Law School. The First Amendment just drops out of the picture.

But will the argument be accepted?

Floridas filing discusses a 2006 Supreme Court decision in Garcetti v. Ceballos. In that case, the court decided 5 to 4 that state employees didnt have First Amendment rights while they were doing their jobs. (Schauer gave the hypothetical example of an anchor at a public TV station needing to read their script, as part of their job.) But Supreme Court justices at the time deliberately left unanswered the question of whether that principle extended to college classrooms.

We need not ... decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching, the since-retired Justice Anthony M. Kennedy wrote in the opinion of the court.

Since then, lower courts have often decided that Garcetti doesnt apply to college-level scholarship and teaching. The courts have recognized the virtues of relatively unconstrained academic inquiry, at least at the university level, Schauer said.

In addition, two midcentury Supreme Court cases, decided at a time when U.S. institutions were panicking about communism and trying to make professors sign anti-communist statements, linked the idea of academic freedom to professors First Amendment rights, Zick said.

But these cases stop short of establishing that something like Garcetti definitely wouldnt apply to college teaching, Schauer said. The courts didnt say whether there was anything special about professors that gave them protections that other state employees might not have, he said.

Plus, there are clearly some limits to the job. A professor assigned to teach constitutional law cant simply decide to talk about astrology instead and claim it was a free-speech issue, which Schauer offered as another example.

Schauer and Zick both sounded warnings about what public higher education might look like if Florida prevails. Both more liberal and more conservative states might flex their abilities to set curriculum mandates. A state could even require professors to say things they dont believe, Zick said.

All of this would make us far worse off, he said, in terms of what the universitys principal mission is, which is to develop knowledge and distribute it and to teach and to learn.

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It's Not Clear Whether Public-College Professors Have First Amendment Rights When They're Teaching - The Chronicle of Higher Education

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Conservatives Loved Expanding The 1st Amendment To Corporations Until Last Year. Wonder Why? – Techdirt

Posted: at 12:50 am

from the what-could-it-possibly-be dept

Right after the 5th Circuits ruling on Texas HB 20 law on content moderation came out, I wrote up a long post going through the many, many oddities (and just flat out mistakes) of the ruling.

Since then, one thing that was bothering about this ruling was that it wasnt just wrong on the law, wrong on the relevant precedents, and wrong on the 1st Amendment but it literally went against the last few decades of how conservative Federalist Society judges have been expanding the 1st Amendment to cover more and more activity by organizations (which, contrary to popular opinion, I actually think has been mostly correct).

The Daily Beast asked me to write up an analysis of the 5th Circuit ruling, and one thing I focused on was just how blatantly basically the entire Republican ecosystem completely reversed on this issue over the last year and a half since Donald Trump got banned from Twitter. I mean, at a very direct level, Republicans insisted (falsely) that net neutrality was an attack on the free speech rights of internet providers, and that the very limited net neutrality rules that the FCC put in place were the government takeover of the internet. Yet they suddenly have no problem applying much more aggressive and 1st Amendment violative rules to edge providers that are nothing like internet service providers.

And while I kept hearing people say that the Dobbs ruling showed that the Supreme Court will now ignore precedent to get to the results it wants, theres something different about the 5th Circuits ruling in the NetChoice case:

The cynical will point to things like the Supreme Courts decision inDobbs(which overturnedRoe v. Wade) and note that weve entered an era of Calvinball jurisprudencein which precedents are no longer an impediment to whatever endgame Federalist Society judges want. (The beloved comic stripCalvin and Hobbesintroduced us to the concept of Calvinballa sport in which the participants make up the rules as they go, never using the same rules twice.)

But in some ways this decision is even more ridiculous. There are pockets of the conservative world that have spent 50 years honing arguments to overturnRoe. The opposite is true when it comes to upending the First Amendment.

Indeed, the same forces that worked to overturnRoespent nearly the same amount of time working to strengthen andexpandjudicial recognition of the First Amendment rights of companiesfrom allowing a bakerto choose notto decorate a cake, to allowing companies to cite the First Amendment as a reasonnot to provide contraceptionas part of a health plan, and deciding that the First Amendment didnot allow Congress to barcertain types of expenditures in support of political candidates.

No matter how you feel about Masterpiece Cakeshop, Hobby Lobby or Citizens United, all three were cases driven by conservative arguments that relied heavily on the fundamental position that the First Amendment barred restrictions on corporate expression, including the right to not be forced to endorse, enable, or support certain forms of expression.

I pointed out how Ken White had once noted that there just wasnt a deep bench of conservative judges looking to take away 1st Amendment rights. And that actually held for a while:

As First Amendment lawyerKen White notedback in the comparatively innocent days of November 2016, regarding Donald Trumps call to open up our libel laws, You can go shopping for judicial candidates whose writings or decisions suggest they will overturnRoe v. Wade, but it would be extremely difficult to find ones who would reliably overturn [key First Amendment precedents.]

But, as if to just put a spotlight on their lack of actual principles, a huge part of the Republican establishment flipped on this point on a dime, solely to punish tech companies that they feel have become too woke. Its almost as if they only support the 1st Amendment for those who ideologically agree with them.

I mean, Justice Clarence Thomas, who almost certainly will vote to uphold the 5th Circuit, will be doing a complete 180 on his concurrence in Masterpiece Cakeshop. In that one, he argued the Supreme Court should have gone even further to make it clear that forcing a baker to decorate a cake for a gay couple would violate the bakers free speech, and dismissed the key cases the 5th Circuit relied on in the NetChoice case (FAIR and Pruneyard) as being wholly inapplicable, while highlighting the importance of Miami Herald v. Tornillo (the case that the 5th Circuit says is wholly different) on the 1st Amendment protecting the right for private operators to exercise control over the messages they send.

With Dobbs, everyone knew where it was going, because conservatives spent 50 years working up to it. But the 5th Circuit ruling lays bare how there are no principles among an unfortunately large segment of todays Republicans in both statehouses and courts. Its not about principles. It is entirely focused on punishing people they dont like.

Theres a lot more in the Daily Beast piece, but I wanted to highlight that one element that hadnt received as much attention.

Filed Under: 1st amendment, 5th circuit, andy oldham, clarence thomas, compelled speech, content moderation, hb 20, social media, texas

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Why USA TODAY Network Tennessee hired a First Amendment beat reporter | From the editor – Tennessean

Posted: at 12:50 am

Freedom Forum has funded the new First Amendment reporter to help USAT Network Tennessee develop sophisticated storytelling around critical freedoms.

Tennessee Voices: A conversation with Ken Paulson

MTSU Free Speech Center Director Ken Paulson spoke with Tennessean Opinion Editor David Plazas.

Nashville Tennessean

The Founding Fathers very clearly foresaw the danger of unchecked authority. Their writings go into great detail about the potential for government corruption, the lure of power, and the need for transparency.

This was a uniquely American concept and led to a uniquely American solution: The First Amendment of the United States Constitution. Five freedoms of religion, speech, press, assembly and petition were not to be abridged.

Yet while Americans have consistently shown overwhelming support for the ideas behind the First Amendment, their understanding of how its promises should be interpreted has varied greatly. And they continue to evolve.

Tennessee has long been at the forefront of debate and decision over how these fundamental freedoms should manifest in a pluralistic society. Were nearing the 100th anniversary of the landmark Scopes Monkey Trial in Tennessee and some of the same legal, theological and humanistic arguments that took place then are taking place today.

Hear more Tennessee Voices: Get the weekly opinion newsletter for insightful and thought provoking columns.

Sign up for Latino Tennessee Voices newsletter:Read compelling stories for and with the Latino community in Tennessee.

Debate over the banning of books, school curriculum, the place of faith, access to government records, and free speech at college campuses and on social media are just a few of the issues of our day.

Thats why weve decided at The Tennessean that it is the right time to devote a full-time reporter focused on covering First Amendment issues.

Funded by the non-partisan Freedom Forum through Journalism Funding Partners, our reporter will be one of the first in the nation to be so dedicated, allowing us to consistently focus more attention and develop sophisticated storytelling around these critical freedoms.

Whats noteworthy is our approach. Some news organizations might cover the First Amendment as related to a press issue with a journalist whose beat is the media, or a question over religious freedom with a legal or religion reporter.

By bringing the topic under a single journalist, well develop the deep sourcing, expertise and focus needed to explore these complex issues and keep them at the forefront of community discussion.

And while we will be mainly covering the issues of Tennessee, well extend our reach more broadly throughout the South and nationally as developments dictate.

The Freedom Forum has a long history in Tennessee, through John Seigenthaler and other past editors of The Tennessean, and through our parent company Gannett. The John Seigenthaler Center opened on the campus of Vanderbilt University more than 30 years ago. With such a rich legacy, it makes even more sense for the USA TODAY Network Tennessee to take this bold step.

It is no coincidence the Bill of Rights begins with the First Amendment. The rights of free speech, freedom of religion, the right to petition, to peaceably assemble and the freedom of the press are foundational to democracy.

These freedoms are exactly what distinguishes the United States from totalitarian regimes such as those found in Syria, North Korea, Iran, China, Saudi Arabia and Russia.

Sign up for Black Tennessee Voices newsletter:Read compelling columns by Black writers from across Tennessee.

Government, as Abraham Lincoln put it nearly a century after the Constitution was signed, must be of the people, by the people, for the people.

Were committed to doing our part to make that happen.

Angele Latham is The Tennessean's new First Amendment reporter. She most recently worked at The Jackson Sun as the government and business reporter.

She was editor of the Independent Appeal in Selmer, Tennessee following graduation from Middle Tennessee State University with a degree in journalism and visual communication. She is a native of Hickman County.

Michael A. Anastasi is editor and vice president of the USA TODAY Network Tennessee, which includes The Tennessean, The Knoxville News Sentinel and The (Memphis) Commercial Appeal. Write to him at manastasi@tennessean.com.

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This Should Terrify Every American: DOJ Harasses Citizens for Exercising Their First Amendment Rights – Heritage.org

Posted: at 12:50 am

The Justice Department has hit the Eagle Forum of Alabama with a voluminous subpoena that violates the organizations First Amendment rights to speak freely, engage in the political process, and talk to their elected representatives. Its an intimidation tactic, pure and simple, and shows just how partisan the department has become. This out-of-control behavior should scare every citizen and volunteer organization, no matter where they stand on the political or social spectrum.

Eagle Forum is a very small non-profit in Alabama. It only has one full-time employee and a second, part-time employee. Virtually all of its work on issues of interest to its members is done by volunteers. It is the quintessential, uniquely American grassroots membership organization that French historian Alexis de Tocqueville lauded inDemocracy in America.

As the Eagle Forumsmotion to quashthe government subpoena says, one of the issues its members have been concerned over is gender-altering medical treatment to minors and the permanent and adverse effects of such medical procedures on those minors. Those serious, lifelong effects deeply concern many physicians and parents.

Members of the Eagle Forum made their worries known by doing things every American has an absolute right to do: they spoke out, made speeches, organized meetings, talked to other residents and organizations in the state, and contacted their elected state representatives. In other words, they exercised their constitutional rights to engage in freedom of speech, to peaceably assemble, and to petition the Government for a redress of grievances. They also exercised their right to associate, recognized by the Supreme Court as implicit under the Fourteenth Amendment.

>>>Bidens DOJ Increases Power and Rewards Political Allies

None of these activities should trigger stalking by Justice Department lawyers. So how has this come about?

Earlier this year, the Alabama legislature passed the Alabama Vulnerable Child Compassion and Protection Act, which became effective on May 8. It bans puberty blockers, hormone therapy, and surgery to alter the biological sex of a minor. A huge number of left-wing advocacy organizations immediately sued the state, and the U.S. Justice Department intervened in the lawsuit, echoing their claims that the new Alabama law violates the Equal Protection Clause of the Fourteenth Amendment.

The Eagle Forum is not a party to the lawsuit. Yet the Justice Department has served what is referred to as a third-party subpoena on the Eagle Forum. This subpoena outrageously demands that the Eagle Forum and its members turn over all:

In other words, the Justice Department wants to turn the Eagle Forum inside out, forcing it to turn over its records on everything it does. This would let government lawyers paw through and scrutinize everything, including privileged communications and even personal discussions and communications with other private citizens and nonprofit organizations.

And there isnt a single, justifiable reason for the department to do this. The Eagle Forum is not a party in the lawsuit. It is not a government agency. It is not the legislature. It has no power to vote to enact this (or any) legislation or sign it into law.

Keep in mind that the lawsuit is making a constitutional claim. The plaintiffs, including the Justice Department, are arguing that the statute as written violates the U.S. Constitution. So, what do the Eagle Forums polling data or social media posts have to do with that constitutional question? What do its internal records, its policy goals, initiatives, and/or strategies, or the communications of its members with state legislators have to do with that issue?

The answer is: absolutely nothing. None of the documents or information sought by the Justice Department has any relevance to whether the text of a state law violates the Fourteenth Amendment.

>>>On Offense Against Radical Gender Ideology

This subpoena, issued by Jason R. Cheeks, an attorney in the U.S. Attorneys Office in the Northern District of Alabama, has but one intent: to harass and intimidate a conservative organization for daring to engage in the democratic process by working on an issue that inflames the Left.

The right to associate freely with other citizens who share your interests was recognized by the Supreme Court in 1959 inNAACP v. Alabama.Ironically enough, in that case, the Alabama state government was harassing the NAACP with similar demands for information due to its work on civil rights issues and legislation.

In an affidavit filed with the court in the current case, Rebecca Gerritson, the executive director of the Eagle Forum of Alabama, correctly warns:

If this subpoena is enforced, legitimate, law-abiding organizations like ours will be subject to scrutiny for engaging in constitutionally protected activities. Further correspondence by EFA, including emails, notes, presentations, speeches, interviews, etc. could be weaponized by government officials who hold (or are being required to assert) opposite political views. In addition, enforcement of the federal governments subpoena would set a precedent that would stifle other citizens who want to exercise their constitutional right to make their views known to their elected officials on public policy matters.

This is a dangerous action by the Justice Department. Its something that all Americans who value their constitutional rights should oppose.

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First Amendment rights of conservative clinics needs to be addressed before a ban can be voted – Cambridge Day

Posted: at 12:50 am

A conservative birth clinic operates in a building in Brookline; city councillors seek to keep one from opening in Cambridge. (Photo: Google)

The City Council voted unanimously to continue a hearing wrought with passionate debate about whether limited resource pregnancy centers actually provide options to clients or push people away from getting abortions. Tuesdays hearing reviewed an ordinance proposing a ban of LRPCs on the basis that they engage in deceptive practices, similar to legislation that Somervilles City Council passed in March.

The sites, also called crisis pregnancy centers, claim to support pregnant people regardless of their decisions while actually pushing people away from abortions, the ordinance alleges. City Solicitor Nancy Glowa said there is a lack of clarification in the proposed policy order defining deception that would make proceeding with it difficult.

There are no such clinics in Cambridge or Somerville, but at a June meeting, councillors identified at least nine in the state, one being as close as Brookline.

The several speakers who gave public comment, ranging from workers at pregnancy centers to Harvard law students, all opposed the proposal. Diana OToole, the executive director for the Boston Center for Pregnancy Choices, said her center creates a safe space for [people] to really think through their decision whether or not to have the baby and give it up for adoption, whether or not to keep the baby, and we provide resources to enable them to do that. OToole referred to some services the center provides as after-abortion healing counseling.

Nate Bartholomew, a Harvard Law student, said the ordinance would violate the First Amendments freedom of speech clause.

Other speakers falsely said that Planned Parenthood, an organization that unlike LRPCs offers services that include abortion, engage in deception by hiding evidence of trafficking and purposely withholding ultrasound images.

City councillor Patty Nolan said she was infuriated by the lies about Planned Parenthood, which provides a full range of services.

Planned Parenthood provides support for all pregnant people who are seeking options. In fact, I have sat with people in those counseling sessions, and they ask for advice and recommendations, Nolan said. They are not pushed one way. Its here are some options, here are the various things you can be thinking about but that is not what crisis pregnancy centers do.

By comparison, deception is at the heart of the typical [LRPC] business model. This is about deceptive practices, lack of health licensures, no medical staff on site or on payroll, and no requirement to keep patient confidentiality in an extremely volatile time, vice mayor Alanna Mallon said.

Councillor Marc McGovern agreed, saying he has worked with Planned Parenthood in his decades of social work and found them to be nothing but professional. I do find it a little ironic for folks to come up and say theyre being misrepresented and then go on to misrepresent another organization, councillor Marc McGovern said.

I guess my question is, appreciating the First Amendment: Does that mean that people can falsely advertise and deceive to get people in the door to their business, to offer something different than what they are saying they offer publicly? McGovern said. Certainly people have the right to believe and say whatever they want under the First Amendment, but I dont think youre allowed to deceive people as an organization or as a business.

In her response to the ordinance, Glowa said the proposals prohibition of LRPCs would make it a content-based regulation of protected speech, which could violate the First Amendment because it would prevent the issuance of permits or licenses as well as limit the content of written or oral statements by the centers.

To hold up against a legal challenge, the ordinances language would need to be more tightly tailored and need to show that it furthers a compelling interest by using the least restrictive means to achieve that interest, Glowa said.

Council decided to continue the debate in a later meeting and asked Glowa to reach out to the City of Somerville about how it was able to craft an ordinance that passed.

This post was updated Sept. 27, 2022, to correct attribution of some comments to city councillor Patty Nolan andcorrect the spelling of DianaOTooles name.

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Framingham passed an anti-begging law, but will it withstand legal challenges? – Boston.com

Posted: at 12:50 am

LocalFramingham City Council is hoping to reduce panhandling on city roadways. (Craig F. Walker/Globe Staff)

Framingham City Council passed an ordinance last week with the goal of stopping beggars from approaching cars, but its not like previous anti-panhandling laws which have been struck down.

Instead of restricting panhandling itself, the law limits pedestrian entry into roadways on most major roads in the city, making it illegal to walk along a road or get within five feet of a car if a sidewalk, island, median, or other such option is available.

Those who break the law would be subject to a $50 fine for the first offense, a $100 fine for the second, and a $300 fine for any subsequent offenses.

The law targets what city councilors have called aggressive solicitation on roadways, which they say is threatening public safety.

Over the past year, there has been a dramatic increase in incidents of aggressive and unsafe solicitation that create public safety hazards, especially the aggressive solicitation of cars in traffic on major roadways throughout Framingham, the Framingham City Council Ordinances and Rules Subcommittee wrote in a June 2022 letter to the larger council.

The new law has been signed by the mayor and goes into effect immediately, according to Framingham SOURCE, but it will need to be reviewed by the Massachusetts attorney general.

Even so, the law was designed to withstand legal challenges that other Massachusetts cities attempts at restricting begging have not.

Back in 2015, both Lowell and Worcester tried to ban panhandling in certain public spaces, but both of the cities ordinances were struck down after the American Civil Liberties Union of Massachusetts (ACLUM) challenged them.

In Lowells case, it tried to ban begging entirely in its downtown district, as well as prohibit aggressive panhandling. But a federal judge deemed it unconstitutional under the First Amendment right to free speech.

Worcester tried to make panhandling illegal outside banks and theaters, outlaw aggressive panhandling, and make it illegal to stand or walk on a traffic island or roadway if you are not crossing. Again, the law was struck down under the First Amendment by a different federal judge.

Then, in 2020, a Fall River law which criminalized begging was challenged by the ACLUM, and was struck down by the states highest court for violating the right to free speech.

This led Brockton City Council to repeal a similar law earlier this year for fear it wouldnt withstand legal challenges.

After proposing an initial ordinance with language much like the laws which had been deemed unconstitutional, Framingham City Council asked both their city solicitor and an independent legal group to evaluate their law.

Both the legal group and the city solicitor wrote back to the council saying that they didnt think the law would withstand legal challenges based on the Lowell, Worcester, and Fall River rulings.

The problem, the lawyers said, is that these laws were content-based, meaning they targeted a particular type of speech, in this case, panhandling.

For such a law to withstand a legal challenge, they said, courts have ruled that cities must define a specific behavior which causes danger to the public and prohibit it in the least restrictive way. Additionally, they must show that current laws that would restrict dangerous behavior, such as assault, are insufficient for addressing the behavior.

In response, city officials crafted a new, content-neutral law they say addresses public safety issues with panhandling while applying the law equally to all pedestrians and maintaining the right to use medians and sidewalks.

Please keep in mind that the proposed Median Safety ordinance may also be subject to challenge. However, it is markedly different than the solicitation ordinance and is intentionally limited in scope and specifically, narrowly tailored to address the public safety interests and issues at stake, City Solicitor Kathryn Fallon wrote to the council in an Aug. 25 letter.

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Congress Should Protect Voluntary Affirmative Action in Private Colleges and Universities – Justia Verdict

Posted: at 12:50 am

Next week, the Supreme Court will commence a new Term. The Courts docket provides the conservative super-majority with multiple opportunities to continue to radically remake constitutional law.

For example, in a case from Colorado, the Court will decide whether a website designer has a First Amendment right to take on jobs in support of opposite-sex but not same-sex marriages, despite the states civil rights law barring such discrimination. A case from North Carolina asks the Court to endorse the so-called independent state legislature (ISL) theory, which figured prominently in Donald Trumps scheme to override the 2020 presidential election and could produce similar mischief in upcoming elections. And in another case from North Carolinathis one involving the states flagship universitythe Justices could overrule precedents dating to the 1970s to hold that the Fourteenth Amendments Equal Protection Clause bars all or nearly all race-based affirmative action.

Each of those cases involves constitutional interpretation. It might therefore be thought that there is nothing Congress can do to prevent or mitigate the damage. After all, a constitutional amendment requires passage by two-thirds majorities in each house of Congress and ratification by three quarters of the states. In this view, Mitch McConnells successful blockade of Merrick Garland to steal a Supreme Court seat and the untimely death of Ruth Bader Ginsburg followed by the shameless rush to confirm Amy Coney Barrett combined to bake in the extremely conservative Court we now have.

Yet Congress has tools at its disposal. Most radically, Congress could increase the size of the Court or strip some of its jurisdiction. More modestly but crucially, Congress can combat ISL by exercising its power under Article I, Section 4 to make or alter state laws governing congressional elections and under Article II, Section 1 to determine the time of choosing the electors in a presidential election. And to its great credit, the House of Representatives passed a billH.R. 1that exercises those powers in ways that would substantially strengthen American democracy. To its great discredit, the Senate (mostly due to hesitation by Joe Manchin and Kyrsten Sinema) has not moved forward with H.R. 1.

What about those other cases? There is little Congress can do (short of Court expansion or jurisdiction stripping) to protect federal, state, and local antidiscrimination law against the Courts eagerness to provide exemptions based on speech and religion, so long as those exemptions are ostensibly found in the Constitution. Nor can ordinary legislation stop the Court from perverting the Fourteenth Amendmentadopted during Reconstruction chiefly to empower Congress to enact legislation benefiting formerly enslaved African Americansby turning it into an obstacle to diversity and inclusion.

But if the University of North Carolina and other great state colleges and universities seem doomed to succumb to the SCOTUS conservative supermajoritys hostility to affirmative action, the same fate need not befall private colleges and universities. In addition to hearing the UNC case, the Court will hear a similar challenge to race-based affirmative action in admissions at Harvard College. Congress clearly has the power to affect the outcome of the Harvard case.

Except for the Thirteenth Amendment, the Constitution constrains government and its agents, not private actors. Thus, the Fourteenth Amendments Equal Protection Clause does not impose any limits on Harvard or other private colleges and universities.

Why, then, was Harvard sued? Although the Constitution does not apply to private actors, Title VI of the 1964 Civil Rights Act does. It forbids discrimination on the ground of race, color, or national origin by entities that receive federal funds. Because of the pervasive role of the federal government in funding research and financial aid, Title VI covers nearly every private college and university in the country. And since the Supreme Courts 1978 Bakke ruling, the case law has treated the limits imposed by Title VI as coextensive with those imposed by the Equal Protection Clause on state colleges and universities.

It is conceivable that the Court could change that practice in the Harvard case. After all, if the Court is willing to change course by forbidding nearly all affirmative action, it could surely take the lesser step of changing its view that the statutory and constitutional limits are coextensive. However, that seems extremely unlikely. The text of Title VI is, if anything, easier to read as containing a principle of color-blindness than is the text of the Fourteenth Amendment. Hence, if five or six Justices construe the latter to forbid race-based affirmative action for state colleges and universities, they will almost certainly construe Title VI to have the same impact on private ones.

Yet the story need not end there. In the face of such a rulingor better yet, now, before the Court rulesCongress can amend Title VI to make clear that it does not forbid affirmative action. Doing so would be straightforward. Congress could append the following statement to the existing statute: Consideration of race, color, or national origin for the purpose of achieving the benefits of diversity shall not be deemed to violate this provision. That language would make explicit the standard under which colleges and universities have operated for decades. It would not protect affirmative action programs at state colleges and universities against the stricter standard the Supreme Court will likely adopt in the UNC case, but it would protect Harvard and other private actors.

Note that under my proposed amendment to Title VI, no private college, university, or other recipient of federal funds would be required to practice race-based affirmative action. The amendment would simply clarify that the decision whether to do so rests with the colleges and universities themselves. That fact ought to make the proposal appealing to conservatives who frequently complain about what they consider to be over-regulation. Leaving an important decision about governance to the leadership of private entities enacts a principle of limited government.

Yet one would need to be especially nave to think that any congressional Republicans would support my proposal. Indeed, it is possible that even substantial numbers of Democratic lawmakers would defect.

Unfortunately, race-based affirmative action is sufficiently unpopular that voters have rejected it when it has appeared on the ballot even in blue states. For instance, in 1996, California voters adopted Proposition 209, which drastically curtailed affirmative action at state institutions. They reaffirmed their opposition to affirmative action just two years ago, when they rejected a ballot initiative that would have repealed Prop 209. It is thus difficult to see poll-savvy Democrats in Congress embracing my proposal.

Moreover, to enact my amendment to Title VI, Congress would need either 60 votes in the Senate to overcome a filibuster or for all 50 Democrats (plus Vice President Harris) to change the filibuster rule. (Aficionados of Senate procedure might be wondering whether a mere 50 votes might suffice using the budget reconciliation mechanism; they would not; although Title VI involves federal spending, my proposed amendment does not; thus the parliamentarian would very likely rule it out of order as extraneous matter under the Byrd rule.) There is, alas, no way that even 50, much less 60, Senate votes are forthcoming.

By now readers might be annoyed with me. Why did I propose a bill that I myself acknowledge is politically a non-starter? One answer is that Im a law professor, not a politician. I see my job principally as analyzing the law and sometimes offering suggestions for improving it. If political actors responding to their constituents real or imagined views reject my suggestions, that is their business.

But there is also a practical reason to make impractical suggestions. The window of what is possible shifts over time. For the 49 years between Roe v. Wade and Dobbs v. Jackson Womens Health Org., anti-abortion activists proposed laws that either would not be enacted or, if enacted, would be struck down by the courts. They played a long game, hoping that someday their efforts would bear fruit.

So too for progressives now. With conservatives in power in most states as well as in the U.S. Supreme Court, and facing the very real prospect of losing Congress and, in two more years, the presidency, we can and should make a call for urgent action now. But in doing so, we should also understand that we aim to maintain our lawmaking muscle mass for a day when we have the ability to use it.

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Congress Should Protect Voluntary Affirmative Action in Private Colleges and Universities - Justia Verdict

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SUPERVISORS APPROVE VEHICLE MILES TRAVELED: ANDERSON AMENDMENT PUSHES FOR TRANSIT EXPANSION IN EAST COUNTY TO ALLOW MORE HOMEBUILDING – East County…

Posted: at 12:50 am

East County News Service

County News Service contributed to this report

September 28, 2022 (San Diego) San Diego Countys Board of Supervisors today approved Vehicle-Miles-Traveled (VMT) guidelines for new development in unincorporated communities aimed at fighting climate change while still allowing approximately 7,700 homes to be built faster and without expensive traffic studies.

The Boards action to adopt a new Transportation Study Guide brings County policies into sync with the state of Californias VMT law. That law aims to reduce greenhouse gas emissions from cars and fight climate change by asking proposed developments how many miles the people living in them would have to drive on average to reach jobs, amenities or transit.

The Boards vote means housing proposed in unincorporated areas where cars would travel at least 15% fewer miles than the average of all drivers in the entire county including city areas could be built without VMT studies and mitigation. That would reduce the cost and streamline the review and consideration process for infill and vehicle-mile-traveled-efficient development in areas that have higher housing densities and are nearer to roads, jobs and transit.

Projects proposed where drivers would have to drive 16% or more miles than the average regional driver could still be proposed, approved and built. But they would have to pay for VMT studies and potential mitigation. That could make it more expensive for developers to build in the Countys unincorporated areas that are often located farther away from jobs and amenities.

However, County staff calculated the new Transportation Study Guide would allow up to 7,693 homes to be built without study and mitigation within two types of unincorporated areas infill areas and VMT efficient areas.

The VMT efficient areas are places where people would drive 15% or fewer miles than drivers within the region. Infill areas are defined as those with already dense housing development with a minimum of 425 houses and 128 intersections per square mile and within 15 miles of job centers.

One of the intents of the states VMT law was to encourage infill development that would improve public health by encouraging people to walk and bike more and reduce car travel and greenhouse gas emissions.

Anderson amendments adopted to explore transit expansion in East County, along with more wineries

Supervisor Joel Anderson advocated for the County to keep as many opportunities for housing in the unincorporated area as possible as the Board implements state guidelines related to vehicle miles traveled (VMT.)

Anderson first supported Supervisor Desmonds substitute motion, which would have reverted to the VMT metric the previous Board used in 2020 and exempted affordable housing from having to meet VMT requirements. The previous VMT metric kept the housing capacity at 18,000 homes, while the new one considered by the Board today reduced the number of potential homes to about 5,870. This motion failed on a party-line vote, with Anderson and Desmond being the only Supervisors to vote in favor of it.

We are on the path to creating the biggest suburb of San Diegans in Riverside County, Supervisor Joel Anderson shared at Wednesdays Board of Supervisors meeting.

Following the failed vote, Anderson then introduced two amendments that would potentially allow for thousands of more units to be built in the unincorporated communities.

The first amendment directed staff to pursue transit opportunities in the unincorporated areas as part of the next phase of VMT implementation. The State VMT guidelines allow more homes to be built if they are near mass transit. This would therefore allow existing communities, such as Ramona or Alpine, to continue to grow to their planned capacity.

Andersons second amendment directed staff to study the potential to allow for new or expanded wineries in areas such as Ramona, Jamul, and the San Pasqual Valley. The VMT guidance as it stood did not provide enough clarity for these types of important agricultural uses.

Chair Fletcher and Vice Chair Vargas shared Andersons concerns for the unincorporated communities and agreed to accept his amendments.

Supervisor Terra Lawson-Remer praised County staff for creating guidelines that would immediately address the climate crisis, create a path to build more affordable homes and withstand legal challenge.

Weve come up with an approach that simultaneously gets us to more housing and protects our climate for future generations, Lawson-Remer said.

With their vote Wednesday, the Board also directed County staff to work with other agencies to see if more Vehicle Miles Traveled efficient areas could be created in unincorporated communities by bringing mass transit to them.

The final vote adopted the Supervisors amendments along with the recommendations and passed on a vote of 4-1, with Supervisor Desmond voting No.

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SUPERVISORS APPROVE VEHICLE MILES TRAVELED: ANDERSON AMENDMENT PUSHES FOR TRANSIT EXPANSION IN EAST COUNTY TO ALLOW MORE HOMEBUILDING - East County...

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‘Afraid of losing their power’: Judge decries GOP leaders who back Trump election claims – POLITICO

Posted: at 12:50 am

The judiciary has to make it clear: It is not patriotism, it is not standing up for America to stand up for one man who knows full well that he lost instead of the Constitution he was trying to subvert, said Jackson, who was appointed by former President Barack Obama.

In addition, Jackson said, Trump and his allies are using rhetoric about the multiple criminal probes connected to Trump that contain dangerous undertones.

Some prominent figures in the Republican Party are cagily predicting or even outright calling for violence in the streets if one of the multiple investigations doesnt go his way, Jackson said.

The judges tough remarks came as she delivered a sentence to Jan. 6 defendant Kyle Young, who pleaded guilty to assaulting D.C. Police Officer Michael Fanone in some of the most brutal violence that occurred during the attack on the Capitol. Jackson sentenced Young to 86 months in prison, one of the stiffest sentences handed down, after describing his enthusiastic participation in the mob violence against Fanone, including by passing a taser to another rioter who used it on Fanones neck. Young, she noted, was accompanied amid the mob by his 16-year-old son.

But her most notable comments were directed not at Young but at Trump and GOP leaders themselves, describing them repeatedly as so beholden to one man that it has become heresy for Republicans to contradict his claims of election fraud.

Shes not the first federal judge to rebuke Trump in the context of Jan. 6 riot prosecutions. Judge Amit Mehta lamented that many of the low-level rioters were duped by powerful figures, including Trump, into marching on the Capitol, only to suffer criminal consequences as a result. Judge Reggie Walton called Trump a charlatan for his conduct related to the election. And a federal judge in California, David Carter, determined that Trumps actions related to Jan. 6 likely amounted to a criminal conspiracy to subvert the election.

But Jacksons comments were the most stinging assessment not only of Trump but those in the upper echelons of elected GOP leadership who have echoed him. She also pushed back at claims by some Trump allies that Jan. 6 defendants had been targeted for political reasons.

You were not prosecuted for being a Trump supporter. You were not arrested or charged and you will not be sentenced for exercising your first amendment rights, she said to Young. You are not a political prisoner You were trying to stop the singular thing that makes America America, the peaceful transfer of power. Thats what Stop the Steal meant.

Jackson is no stranger to high-profile Trump-related matters. She oversaw the trial of longtime Trump confidant Roger Stone, who was charged and convicted of lying to lawmakers investigating Russian interference in the 2016 election. In that trial, she castigated Stone after an ally used his social media account to post an image of her that appeared inside crosshairs.

Jackson also presided over one of the criminal cases against former Trump campaign chairman Paul Manafort, who pleaded guilty to financial crimes but was later accused by prosecutors of lying during his cooperation agreement.

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'Afraid of losing their power': Judge decries GOP leaders who back Trump election claims - POLITICO

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