‘Marsupial Justice’ Is a Natural Product of Federal Overreach
Earlier this month I blogged about the U.S. Department of Education’s recent push to eliminate free speech and due process on campus. More and more people are starting to notice this attempt by the department’s Office of Civil Rights to force colleges — by threatening an investigation and loss of federal funds — to redefine sexual harrassment to include unwelcome flirting and sex jokes and then lower the burden of proof they use when determining whether students or staff are guilty of violating the new code of behavior.
And now we have a characteristically astute article by the Washington Examiner‘s Michael Barone. Money quote:
Education Secretary Arne Duncan has shown an admirable openness to argument and intellectual debate. Perhaps someone will ask him whether he wants his department to be encouraging kangaroo courts and marsupial justice on campuses across the country.
Unfortunately, this sort of thing doesn’t just take care of itself. Greg Lukianoff and his team at the Foundation for Individual Rights in Education have been doing a workmanlike job protecting student and academic freedoms, but at base this policy exposes the sorts of pathologies that emerge from a federal government that has too many tentacles in too many places.
What is the Department of Education doing setting any sort of standards for speech, conduct, and adjudication of campus disputes — good or bad, strict or lax? Why do we even have a federal Department of Education in the first place?
Unanimous Supreme Court Vindicates Market-Based Fees for Civil Rights Claims
It hasn’t happened that much under my watch, but it’s gratifying when the Supreme Court overwhelmingly endorses Cato’s position in a given case. Not a 5-4 split dependent on what Justice Kennedy had for breakfast or some narrow “win” that doesn’t reach the issues we care most about, but a solid across-the-board victory for our first principles.
But such was the case in Justice Kagan’s (!) opinion for a unanimous Court in Fox v. Vice, in which Cato filed a brief last December that I discussed here:
Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.
In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.
Today the Supreme Court essentially agreed 9-0 with our view that (1) the Fifth Circuit’s decision imposes prohibitive costs on civil rights enforcement of civil rights; (2) by prematurely deeming a suit frivolous and ordering the plaintiff to pay the defendant’s fees, the lower court imposed penalties that would shut down legitimate lawsuits midstream; and (3) the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court, contrary to the law’s purpose here.
In short, when a plaintiff’s lawsuit is for both frivolous and non-frivolous claims, a court may grant reasonable fees but only for the costs that a defendant would not have incurred but for the frivolous claims — so no fee awards even for work that goes towards both frivolous and non-frivolous claims. You can read the opinion here.
Thanks to our pro bono counsel at WilmerHale and to the organizations who joined us on our brief: the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech.
Due Process Stops at the Campus Gates?
People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation. As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:
If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing. It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault. According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard. So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.
As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:
Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.
Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan’s case or that of the Duke lacrosse team. Justice (what lawyers call “due process”) demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence. It is no more just for an innocent person to be smeared and forever tarnished — if not convicted and imprisoned – than it is to let a guilty man go free. Indeed, as Blackstone famously said, “Better that ten guilty persons escape than that one innocent suffer.”
What’s more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it’s not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:
California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”
This disconnect between basic principles of free speech and due process creates what Lukianoff calls “a perfect storm for rights violations”:
By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.
FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff’s indictment of the new policy.
The Department of Education needs to rescind/clarify this mess. Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.
China Cracks Down on Ideas. And Music. And Advertising.
The government of China finally confirmed that it has detained the artist Ai Weiwei. Meanwhile, Evan Osnos writes from Beijing for the New Yorker about China’s “Big Chill”:
Step by step—so quietly, in fact, that the full facts of it can be startling—China has embarked on the most intense crackdown on free expression in years. Overshadowed by news elsewhere in recent weeks, China has been rounding up writers, lawyers, and activists since mid-February, when calls began to circulate for protests inspired by those in the Middle East and North Africa. By now the contours are clear: according to a count by Chinese Human Rights Defenders, an advocacy group, the government has “criminally detained 26 individuals, disappeared more than 30, and put more than 200 under soft detention.”
Indeed, everywhere I turn today, there’s news about Chinese censorship and fear of dissent, of ideas, of art, of words like “luxury.” The Washington Post has a major article on Bob Dylan’s concert Wednesday night in Beijing. Dylan, the troubadour of the peace movement and the Sixties and civil rights, in the capital of the world’s largest Communist party-state. How’d that go? Ask Keith Richburg, whose Post article is titled “The times they are a-censored“:
Rock music icon Bob Dylan avoided controversy Wednesday in his first-ever appearance in Communist-led China, eschewing the 1960s protest anthems that defined a generation and sticking to a song list that government censors say they preapproved, before a crowd of about 5,000 people in a Soviet-era stadium.
Keeping with his custom, Dylan never spoke to the crowd other than to introduce his five-member band in his raspy voice. And his set list – which mixed some of his newer songs alongside classics made unrecognizable by altered tempos — was devoid of any numbers that might carry even the whiff of anti-government overtones.
In Taiwan on Sunday, opening this spring Asian tour, Dylan played “Desolation Row” as the eighth song in his set and ended with an encore performance of “Blowin’ in the Wind,” whose lyrics became synonymous with the antiwar and civil rights protest movements.
But in China, where the censors from the government’s Culture Ministry carefully vet every line of a song before determining whether a foreign act can play here, those two songs disappeared from the repertoire. In Beijing, Dylan sang “Love Sick” in the place of “Desolation Row,” and he ended his nearly two-hour set with the innocent-sounding “Forever Young.”
There was no “Times They Are a-Changin’ ” in China. And definitely no “Chimes of Freedom.”
Another Life Taken
Bad enough that people get arrested and jailed for drug offenses, but the proliferation of SWAT teams and the tactic of breaking into homes, especially during the night, is reckless. In this case, the break-in did not lead to any shooting, but as the 68-year old suspect was lying on the ground, complying with all the police commands, he was accidently shot and killed.
FRAMINGHAM, Mass.—A Framingham police officer who shot and killed a 68-year-old man during an early morning drug raid will not face criminal charges.
Prosecutors say the shooting was an accident and Duncan’s actions “do not rise to the level of criminal conduct.”
But attorneys for the family of Eurie Stamps said Wednesday that they will launch a civil rights investigation because the shooting was unjustifiable, his rights were violated and those responsible must be held accountable for his death.
Authorities say Duncan lost his balance while preparing to handcuff Stamps after members of the SWAT team stormed the Fountain Street home just after midnight on Jan. 5.
The Middlesex district attorney’s office says officer Paul Duncan stumbled and accidentally fired his rifle, hitting Stamps as he lay on the floor on his stomach with his hands up.
More here.
Marriage against the State
I’m pleased to announce the publication of my new Cato Policy Analysis, “Marriage against the State: Toward a New View of Civil Marriage.”
As I note in the introduction, it’s quite rare that Congress ever considers marriage as a policy area in its own right. There are comprehensive health care bills, defense spending bills, farm bills, and civil rights bills, but no really comprehensive marriage bills.
Of course, this might be a good thing, but one of the side effects is that marriage policy can be haphazard in the extreme. Inconsistencies and surprises abound. Marriage influences welfare, immigration, tax law, child custody and support, and many others besides.
Are all of these things legitimate? A popular view among libertarians is that the federal government, and possibly the states, should get out of the marriage business altogether. It’s an approach with much to recommend it, but I can’t entirely agree. For at least some areas of public policy, marriage represents a barrier to government meddling in your financial, family, and intimate life. In these areas, it’s an unqualified good. Marriage is often a defense against the state, and as such, it’s something libertarians ought to want.
Supreme Court Should Uphold Incentives to Sue the Government
Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.
In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.
Cato, joining the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech, filed a brief supporting a request that the Supreme Court reverse the Fifth Circuit and making three points:
First, by awarding the defendant fees for the entire suit based on the dismissal of one claim, the Fifth Circuit’s decision imposes prohibitive costs on the enforcement of civil rights.
Second, the exceptional timing of the fee award in this case — before resolution of the plaintiff’s related state-law claims — creates a dangerous precedent that threatens to derail civil rights actions. By prematurely deeming a plaintiff’s suit frivolous and ordering the plaintiff to pay the defendant’s fees before the conclusion of the litigation, the Fifth Circuit’s rule imposes financial penalties that would shut down legitimate lawsuits midstream.
Third, the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court. Otherwise, the threat of a fee award will improperly burden the plaintiff’s decision to bring a federal claim in state court at all — contrary to the law’s purpose here.
In addition to reversing the judgment below, the Court should reinforce that a mid-litigation fee award is improper when a plaintiff voluntarily drops a federal claim in order to return to state court. The Court will hear Fox v. Vice on March 22, with a decision expected in June.
Bulldozing Homes, Billing Homeowners
Officials in Montgomery, Alabama, are bulldozing homes in their historic civil rights district — and billing the homeowners for the cost of demolition:
Christina Walsh of the Institute for Justice writes about this injustice at the Daily Caller:
Imagine you come home from work one day to a notice on your front door that you have 45 days to demolish your house, or the city will do it for you. Oh, and you’re paying for it.
This is happening right now in Montgomery, Ala., and here is how it works: The city decides it doesn’t like your property for one reason or another, so it declares it a “public nuisance.” It mails you a notice that you have 45 days to demolish your property, at your expense, or the city will do it for you (and, of course, bill you).
Your tab with the city will constitute a lien on your property, and if you don’t pay it within 30 days . . . the city can sell your now-vacant land to the highest bidder.
The rest of her article is here. Also, see ABC News, Big Government and Reason magazine. And you can find Cato’s work on property rights here.
California’s Gay Marriage Ban Lacks a Rational Basis
I haven’t even begun to dig into Judge Walker’s 138-page (!) opinion that strikes down Proposition 8 on both due process and equal protection grounds, but here are three key excerpts. First, the conclusion that government lacks a “rational basis” for preventing same-sex couples from marrying:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.
Then the equal protection conclusion:
Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
And finally the due process conclusion:
As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” [citation omitted] Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.
In short, the court found none of the government’s asserted interests — including tradition, moving slowly on social change, and promoting different-sex parenting — to be “legitimate.” This is obviously a big deal and will be appealed – and no gay marriages will be allowed until the appellate process will have run its course (most likely up to the Supreme Court). Currently, same-sex couples can only legally wed in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C.
Cato’s chairman Bob Levy, also co-chair of the advisory board to the American Foundation for Equal Rights (which sponsored the suit) had this to say:
The principle of equality before the law transcends the left-right divide that so often defines issues in this country. Today, people from across that divide came together to fight a law that cut to the very core of our nation’s character. Prop. 8 attempted to deny people an indispensable right vested in all Americans. This Judge and this Court bravely confronted wrongful discrimination and came down on the right side – defending and enforcing equal protection, as demanded by the Constitution.
I too think this was the correct decision — reserving, of course, the right to criticize parts once I’ve done more than skim it — though I fear it will poison our politics in a way not seen from a legal decision since Roe v. Wade. Roe v. Wade is not what today’s ruling should be compared to, however — both because this was only one district judge and because Roe v. Wade was a tortured fabrication of constitutional law that no legitimate constitutional scholar really defends (not even Justice Ruth Bader Ginsburg). I would liken it more to one more step in the civil rights movement, giving all Americans equality under the law. If you want a court case to compare it to, try Loving v. Virginia (which struck down bans on interracial marriage).
I should also add that this all could have been averted if government just got out of the marriage business entirely: have civil unions for whoever wants them — which would be a contractual basket of rights not unlike business partnerships – and let religious and other private institutions confer whatever sacraments they want. If the state provides the institution of marriage, however, it has to provide it to all people.
A Bum Rap for Limited Government
Every so often an editorial comes along that is so obtuse that you wonder if it came from human hand. I allude, not surprisingly, to the item in this morning’s New York Times, “Limits of Libertarianism,” which arises from the kerfuffle over Rand Paul’s critique of the 1964 Civil Rights Act for its undermining the private right to freedom of association.
The editorial’s main target, however, lies beyond the Paul senatorial campaign. It’s the tea party movement and its libertarian, limited government themes. But from the start the Times conflates limited government with anti government. They’re not the same. More broadly, the editorial shows beyond doubt that the Times, ever the friend of “enlightened government,” finds danger lurking mostly in the private sector. (One wonders just how it is that those not-to-be-trusted private actors become so quickly enlightened once they get their hands on monopoly government power.)
Thus, we’re told that the libertarian theory of private liberty has “roots in America’s creation, but the succeeding centuries have shown how ineffective it was in promoting a civil society.” Really? What history have the scribes at the Times been reading? Their next line, presumably supporting that claim, only compounds the mystery: “The freedom of a few people to discriminate meant generations of less freedom for large groups of others.” Is that what slavery was, private discrimination, to be corrected by government?
Apparently, because following immediately is the editorialists’ main point: “It was only government power that ended slavery and abolished Jim Crow, neither of which would have been eliminated by a purely free market. It was government that rescued the economy from the Depression.”
Where to begin. Skip the Depression point; it’s been so often refuted that one does so again only with embarrassment for its authors. The first claim, however, warrants more than passing attention. Contending that only government power saved us from slavery and Jim Crow, it ignores the role of private power – the abolitionists, and the civil rights movement – that brought about that government power. More important, it invites us to believe that government had little or nothing to do with slavery and Jim Crow in the first place when in truth we would have had neither without government’s creation of those legal institutions, with legal sanctions that kept them in place. Indeed, it is limited government, government limited to securing our rights, that is the surest guarantee against those twin evils.
A Disappointing Start in Piñera’s Chile
The presidential election in Chile that brought Sebastián Piñera to power last month was good news for Chile and the region. It confirmed once again that Chile is Latin America’s most modern country, one in which Chileans chose a center-right candidate to lead the country after 20 years of center-left governments that by and large stuck to the free-market model set in place in the 1970s and 1980s and that has made the country one of the most economically free in the world. In Chile, what’s at stake in presidential contests is not a radical change of the rules of the game, but rather policies that build on or depend on high growth. Chile’s mature democracy and economy serve as a model for Latin America.
But in just over a month of being in office, Piñera has made two decisions that disappointed his supporters both inside and outside of Chile who believed that he would reinvigorate the Chilean economy and stand firmly against the populist-authoritarian model that Hugo Chávez has exported to the region. Piñera backed the re-election of José Miguel Insulza to head the Organization of American States and has proposed a tax increase on large companies. Insulza and the OAS are widely and correctly viewed as having been silent, incompetent or complicit in the face of repeated violations of basic democratic and civil rights by populist governments in the region. Whatever the domestic political reasons for Piñera’s decision, countless Latin Americans who cherish their rights—not the least of whom are Venezuelans, Hondurans, Bolivians and Ecuadoreans—were disillusioned by the endorsement of Insulza.
On Friday, Piñera proposed to “temporarily” raise taxes on large companies from 17% to 20% (and to increase mining royalties and to permanently increase tobacco taxes) to finance Chile’s post-earthquake reconstruction needs. But a number of Chile’s leading economists are criticizing the tax increase and point to other sources of revenue that would be less damaging to growth. Hernán Büchi, a finance minister in the 1980s, and Luis Larraín, head of Chile’s free-market think tank, Libertad y Desarrollo, have both written op-eds in recent weeks pointing out that one of the country’s main problems has been the steady drop in productivity in recent years. Piñera was elected on a platform to increase productivity. A tax increase would aggravate the problem. According to Büchi, 20 years of center-left governments reduced Chile’s ability to eliminate poverty and followed a path that was politically easy and consistent with their ideology: “It would be a bad omen if the first measures of a government that should represent change in this regard, went down the same path.” Larraín adds that the tax decision will reveal Piñera’s governing approach, in which there is a real danger of avoiding necessary reforms and a president content with simply being a better administrator. We shall see.
Department of Bias
The Department of Justice just invalidated a move by the residents of Kinston, North Carolina, to have non-partisan local elections. Rationale?
The Justice Department’s ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their “candidates of choice” – identified by the department as those who are Democrats and almost exclusively black.
The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters’ right to elect the candidates they want.
This, coming from the same Department of Justice officials that wouldn’t know a civil rights violation if it picked up a club and barred them access to a polling place.
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