Tag Archive for 'unconstitutional'

Louisiana School Intentionally Discriminates Against Pregnant Students For The Heck Of It

One of the more fortunate aspects of living in this modern age of ours is that things like racism and sexism are nowhere nearly as apparent or pervasive as they were in the past.  It’s strange to think that less than a century ago there was no civil rights movement, nor women’s suffrage.  Females were routinely treated as second class citizens, and though it may be arguable how far we’ve actually come, one thing is certain: blatant sex discrimination is now relic of the past.  Well, mostly anyway.

It’s very odd to see obvious discrimination nowadays, especially when it’s directed toward pregnant women by a school no less.  But that’s exactly what’s going down in one Louisiana school.  The Delhi Charter School recently adopted a policy requiring pregnant students to be removed from classrooms and be forced to either study at home or go to a different school.  The policy would also require students suspected of being with child to take a pregnancy test.

Fortunately, Louisiana education officials have already begun the process to force the charter school to drop its discriminatory policy.

The story is surprising on a number of levels.  First and foremost, it’s amazing that the school’s clearly prejudicial policy somehow made it through without seemingly anyone raising the fact that it was obviously unconstitutional.  One of the school board members was even quoted as saying that he had no idea the policy was illegal.

When it comes to constitutional law, it’s usually quite rare for an issue to ever be clearly weighed in one direction or the other.  But the Delhi Charter School’s new rule has somehow defied these odds by being clearly unconstitutional.

The reason is because under the Fourteenth Amendment’s equal protection clause, states are prohibited from discriminating against citizens based on race, sex, and illegitimacy (among other things).  The only way for states to get away with gender based discrimination is if it can overcome the intermediate scrutiny test.  The test basically requires the government actor to show that the discrimination is necessary to further an important government interest and is substantially related to the interest.

In case you’re wondering why Louisiana education officials can tell a charter school what to do, it’s because the school receives a large portion of its funding from the state.  Therefore, it’s a government actor and required to follow the Constitution.

More importantly though, the reason the Delhi Charter School’s policy is unconstitutional is because it specifically targets pregnant people.  And last time science checked, only women can get pregnant.  While the school could argue that the policy is designed to ensure a proper education environment where everyone can learn free of distractions, the problem is that excluding pregnant women isn’t substantially related to this purpose nor does it further it.  Because while non-pregnant students will receive a proper in-class education, pregnant students definitely won’t because they’ll be confined to home study.

Furthermore, it seems like the Delhi Charter School administration must be entirely without legal counsel because if anyone had checked Title IX of the Education Amendments of 1972, they would’ve realized the policy also violated it, too.

Clearly, whoever was behind passing this policy didn’t put much due diligence into it.  Luckily, it’s likely not going to be around for much longer.  But what do you guys think of the school’s attempted to segregate pregnant students?  It’s clearly unconstitutional, but do these types of rules ever have a place in public education and/or life in general?

Federal District Court in Maryland Rules State’s Gun Control Law Unconstitutional

It looks like gun nuts and Second Amendment proponents alike have potentially just found a new home to roost their Glocks.

Yes, I know the link I just provided was to a very long and seemingly boring Maryland federal district court opinion.  But don’t worry, you don’t have to read it because I’ll provide the “bullet” points (ba-dum-bum) for you.  The opinion in Woollard v. Sheridan just came down the pipeline a few days ago and holds as unconstitutional a Maryland gun control statute.

You read that right gun huggers, unconstitutional; as in going against the highest law in our land.

However, what’s most interesting is that the gun restrictions in the Maryland statute itself aren’t all that different then the wording you’d find in the gun permit laws of other states.  Maryland allows the carrying of concealed weapons outside the home, but only if the carrier can show “good and substantial reason” to carry a gun.  The Maryland law in question generally restricts this to people who run businesses that have a high chance of being robbed, law enforcement, judicial officials, private security staff, and those that can show an “objectively heightened threat above and beyond personal anxiety.”

Sounds groovy, right?  However, it’s the last category that the federal district court had trouble with.  The court’s ruling essentially states that it’s unconstitutional for Maryland to require people to lay out a specific objective threat and instead should allow anyone with reasonable apprehension of their safety to carry a gun outside of their home for protection.

This is huge because it means that the federal district court in Maryland is going old school with their Second Amendment interpretation and, as many critics have pointed out, is in essence condoning the carrying of guns for plain old personal protection, ala Texas.  However, I should also note that this ruling has already been reserved for appeal, so who knows what the federal appellate court will say about its underling’s decision.

The federal district court’s ruling does bring up an interesting point on the current state of gun laws in America.  As it stands today, most states don’t allow the concealed or unconcealed carrying of guns in public.

Now I’m not a gun nut by any means, but I’ve never understood the reason why most governments are so against allowing concealed carry.  Yes, I’ve heard the arguments: increase gun violence, possibility of increase gun threats, and so forth.  But these reasons aren’t very compelling to me because the whole point of gun control laws is to prevent the unauthorized use of guns.  The ironic part however is that they don’t seem to do much to prevent those in society that we want to keep from using guns from actually using them.

By this I mean, career criminals, gang members, robbers, and every other person gun control laws are aiming to stop will nonetheless use and carry guns because, well, they’re criminals and they’re going to carry and use guns no matter what.  But this isn’t to say that all former convicts are forever convicts, but rather what I mean is that if someone is planning to commit a crime where the use of a gun is necessary, that person probably isn’t going to care that they’re also breaking a gun control law.

The fact of the matter is that gun control laws only end up harming those that really need protection the most.  Chances are a law abiding citizen isn’t going to be carrying a gun and thus becomes a potential target to wrongdoers since they’ll know that their victim won’t be able to fight back as effectively.  Gun control laws remove the ability for lawful citizens to utilize a power crime deterrent.  And aside from increasing the sentence of those criminals caught with a weapon in public, gun control laws don’t do much by way of protecting citizens.

Like I said before, I’m not a gun advocate in any sense of the word, but I think federal district court in Maryland made the right decision in this case.  Even though their ruling will most likely be struck down on appeal, hopefully their opinion will gain some traction and help put the issue of gun law reform back into the public’s attention.

It seems like there should be a much easier way to restrict gun usage from the more criminally inclined in society while also allowing private citizens a chance to still protect themselves.  Something as simple as a Megan’s law type gun restriction could be the answer.  I think by simply enacting a law prohibiting gun crime convicts from carry guns in public while allowing everyone else to do so is a good place to start.

Why Going Through Airport Security is Still Better Than Being Muslim in America

I hate going through airport security.  There’s nothing more demeaning to me than walking through a machine that gets to see my junk.  If I wanted people to see me naked all the time, I wouldn’t be wearing clothes.  For me, having to deal with the draconian airport security always puts a damper on any trip I’m taking, especially considering how unprofessional they can be.

But as much as it sucks having to endure the TSA on my way to Hawaii, seeing stories like this makes me appreciate that the TSA is the only government agency I have to worry about when I travel.

It’s tough being or looking Muslim in America these days.  Not only do you have the TSA hassling you at every corner, but you also have every other government agency doing the same.  You need no further evidence than Yasir Afifi, the man in the story I linked to in the previous paragraph.  He found a freaking tracking device underneath his car for Pete’s sake (by the way, who is Pete?).  Imagine you were driving down the street and suddenly found a weird electronic device underneath your car, you’d probably freak out, too.  I know I would; if I find a bug on my windshield my day is usually ruined.

Afifi alleges that while he was getting his oil changed, he saw something shimmering underneath his car.  When he checked, it turned out to be some sort of metallic box with an antenna.  The mechanic working on his car had no idea what it was, but the internet did.  After posting pictures online, Afifi soon discovered that the weird box was actually an electronic tracking device that was only available to law enforcement.  The college student soon found out that the FBI was responsible for planting it and now Afifi is getting ready to sue like crazy.

Why is he able to sue?  Because the device was planted by the FBI without a warrant and Afifi is arguing to this sort of practice should be banned as unconstitutional.  Specifically that it violates the Fourth Amendment’s protection against unreasonable searches and seizures.  He also wants an injunction stopping the FBI from continuing to do this to him.  Oh yeah, and he’s also suing for monetary compensation.  Afifi claims this whole event has caused him to be unable to find a job and therefore it caused him to lose out on money that he would have earned had this whole thing not gone down.

Now certainly I feel bad for Afifi.  I would hate to find any sort of tracking device on my property, especially if, as Afifi alleges, there was no reasonable basis for it other than my race and travel preferences.  Unfortunately, in the legal world, his argument probably won’t get him very far, at least in terms of winning money damages.

Certainly, in a criminal case, as I’ve discussed many times on this blog, evidence obtained without a warrant is subject to the exclusionary rule.  Meaning that evidence can’t be used in court against the defendant and is excluded from the proceedings.  So perhaps Afifi may be able to get the court to rule in his favor solely on the point of ruling this sort of unwarranted search and seizure being unconstitutional, but in terms of getting it banned is an entirely different story.  The practice is already banned from a criminal defense perspective by way of the aforementioned exclusionary rule.  The problem is getting the court to ban the practice in terms of making it illegal for cops to do this.  That’s more the province of the legislature, which is tasked with making the law, not the judiciary, which is tasked with interpreting it.

Furthermore, Afifi most likely can’t win any money damages either, because, well you don’t need to have gone to law school to know that trying to show you’ve lost money from lack of employment if you haven’t been employed before is probably not the greatest argument in the world.  From a legal perspective, loss of future employment is an incredibly complex litigation area and winning these sorts of cases will be incredibly difficult for Afifi because he alleges that he would have found a job but for all of this never happening.

There are two problems that I see with his case.  One, is how can he prove that this significantly affected his job prospects; and two, what criteria would he use to measure his potential loss income?  Very complex indeed.

The only thing he’ll probably get is the injunction to stop the FBI from placing tracking devices on him, because well, they probably have already stopped doing it just because of this whole media mess.

Key Provision of Healthcare Reform Law Held Unconstitutional

A federal judge in Virginia just ruled that the “individual mandate” – the cornerstone of the healthcare reform law supported by President Obama – is unconstitutional. The individual mandate is by far the most important part of the Patient Protection and Affordable Care Act (PPACA – the official name of the healthcare reform law). Without it, there’s simply no way the other important provisions can work. As different provisions of the law go into effect over the next few years, the individual mandate is meant to be the final capstone.

It requires that almost everyone in the country who is not covered by some form of public insurance (Medicare, Medicaid, the VA, etc.) must obtain health insurance, either through their employer or by purchasing it for themselves, or pay an annual financial penalty. The government will partially subsidize the premiums for private insurance for those who cannot afford it.

The law also has provisions that will prohibit health insurance companies from denying coverage to people based on pre-existing conditions, and from dropping customers, under almost any circumstances. It also includes other reforms, such as banning annual spending caps.

Obviously, complying with these requirements will be very, very expensive. But it just so happens that a large percentage of America’s 30 million (give or take) uninsured are young, healthy individuals who simply choose to go without health insurance. It happens that this demographic is very cheap to insure, so covering them tends to be extremely profitable for insurance companies. When insurance companies take on millions of these highly profitable customers, the cost of insuring the traditionally “uninsurable” (people with pre-existing conditions, mostly) should be offset.

So, what does this ruling mean for healthcare reform? Well, if it is eventually upheld by the Supreme Court, healthcare reform (in its current incarnation) is effectively dead. Whether that’s a good or bad outcome, I leave up to the reader.

In the short term, however, none of us will see any practical difference, because the provision that the court ruled against isn’t scheduled to go into effect until 2014. Furthermore, this was just one federal trial judge (two others have actually upheld the law, in separate lawsuits challenging it). This ruling won’t mean much until the 4th Circuit Court of Appeals hears the case, after which it’s nearly certain to go to the Supreme Court, which will have the final say.

So, what are the chances that the Supreme Court will sustain this ruling? It’s hard to tell.

The plaintiffs are arguing that Congress lacks the constitutional authority to require individual Americans to buy health insurance. Now, regardless of one’s opinion on the wisdom of this type of healthcare reform, you can make a non-frivolous argument that it exceeds the constitutional scope of the federal government’s power, and there are plenty of good arguments that it does not.

Under the Constitution, the federal government’s powers are limited. Basically, if the power to do something isn’t explicitly granted to the federal government in the Constitution, the federal government can’t do it. However, some of these grants of power are extremely broad and vague, so there’s a lot of disagreement over exactly how far some of these grants of power go.

One of the most expansive federal powers laid out in the constitution is the power to regulate interstate commerce. During this nation’s first 150 years or so, the Supreme Court was pretty clear that “interstate commerce” (and the federal government’s power to regulate it) was limited to the most literal interpretation of the term: the sale and transport of goods and services across state lines.

However, during the Great Depression, Congress, along with the Roosevelt administration, began to implement some extremely ambitious programs, which involved unprecedented expansions of federal power. At first, the Supreme Court shot down a large number of these programs in close 5-4 decisions. But a sudden apparent shift in Justice Owen Roberts’ judicial philosophy led to the Court creating precedents which greatly expanded the federal government’s power under the Commerce Clause.

Now, the general rule is that the federal government can regulate any economic activities which, in the aggregate, have an effect on interstate commerce. Using this rule, the Supreme Court has ruled that the federal government can prohibit a person from growing wheat on his own property for personal use, because if such activity were widespread, it would have an aggregate effect on the nationwide price of wheat, and therefore an effect on interstate commerce.

There’s no question that the millions of uninsured have a significant effect on the national economy: hospitals are required by law to treat and stabilize all patients who come in with an emergency condition, without regard to their insurance status ability to pay. Hospitals incur serious expense in meeting this obligation, which they pass on to patients with the ability to pay out-of-pocket, or to insurance companies.

Furthermore, the uninsured strain public health resources such as Medicare, Medicaid, and the Children’s Health Insurance Program, affecting state and federal budgets.

It’s crystal clear that going without health insurance affects healthcare costs for everyone else, and therefore affects the national economy and interstate commerce. The problem, however, is that there’s no precedent supporting the idea that not doing something (in this case, not purchasing health insurance) is an “activity” that can be regulated by Congress. Of course, there doesn’t seem to be much, if any, precedent refuting that notion, either.

We’re truly headed into uncharted constitutional territory with this one. While one’s opinion on the constitutionality of the PPACA will largely depend on their policy preference, we can all agree that, whatever the final result, it’s going to be a pivotal moment in our legal history, and it’ll be an interesting ride getting there.

Common Misconceptions about Punitive Damages

Pass me more puni’s please.

We’ve all heard of punitive damages.  You know: those damages that are designed to punish people for their crimes and deter them from committing them again.

They seem to be pretty popular these days.  It’s as if nobody’s interested in victims getting compensated for their actual losses because everyone’s hung up on punishing the bad guy.

Some of these punitive damage awards can be quite hefty in terms of dollar amounts.  For example, a recent discrimination case involving a company named Novartis Corp. resulted in a $250 million punitive damages award.  That’s about $44,000 for each member of the class action suit.  Or how about the General Motors lawsuit that resulted in $1.2 billion in puni’s?  And they started off at a record $4.9 billion before a judge had them reduced to the “measly” $1.2 billion figure.

These massive damages awards are part of the reason why punitive damages are the focal point of the currently hyped-up tort reform debate.  I believe that there are many misconceptions floating around regarding punitive damages, so here are a few clarifications on these bad boys:

Misconception #1:  Punitive damages are available in all cases

Not true.  Punitive damages are only available in cases where the defendant has acted in a way that is more than negligent or accidental.  They must have acted in a way that is purposeful or malicious, because punitive damages are intended to punish someone for an intentional wrongdoing.  This rules out the majority of standard contracts cases and many negligence claims.  You can’t really punish someone for or deter them from an unintentional act.

Misconception #2: Punitive damages allow you to recover as much money as you want

Wrong again.  Supreme Court cases such as BMW vs. Gore have held that “grossly excessive” punitive damages awards are unconstitutional.  Most states follow the guidelines from the BMW case, which limit punitive damages to a max of four times the amount of actual compensatory damages.  The ratio of 4:1 is pretty standard, and courts have ruled that ratios such as 10:1 are definitely unconstitutional.  Sorry, buddy, your wallet does have bottom to it.

It is worth noting that new laws have limited punitive damages in federal maritime cases to a ratio of 1:1.  That is, punitive damages cannot exceed compensatory damages for cases dealing with oceans.  This came from the Exxon-Valdez oil spill ruling.  It will likely have major consequences for the recent Gulf Oil Spill lawsuits.

Misconception #3: You can recover just punitive damages by themselves

No, you must have your icing with at least some amount of cake.  Plaintiffs are awarded punitive damages only if they have been awarded compensatory damages first.  This means that they must have suffered some amount of economic loss before they can file for punitive damages.  This particular rule is obviously aimed at preventing people from going after the deep pockets for frivolous reasons.  Like the Beastie Boys, courts say, “I like my sugar with coffee and cream”- in a ratio of 4:1, please.

Misconception #4:  Punitive damages awards are frequent and excessive

The truth is that they are in fact pretty rare and often involve spreading the award amongst a large group in a class action suit.  Statistics from the Center for Justice and Democracy show that puni’s are only awarded in 3% of all civil claims that make it to trial, with the median award being $64,000 per plaintiff.  So maybe all the focus on the exceptional cases has muddled the public perception of how these types of damages are actually awarded.

I have to say that in certain cases like the ones mentioned above, punitive damages can admittedly be too high.  But in a society that places a high value on figures and cost-benefit analyses, I think that punitive damages are actually quite effective in getting the attention of wrongdoers.

Although money simply can’t undo certain types of wrongs, we do live in a society that measures culpability in terms of dollar amounts.  We also tend to use a lot of hyperbole when it comes to damages and prison parole sentences– for example, who can possibly serve 200 years in prison?  And in this regard punitive damage awards can be useful if you think of them as a mechanism for signaling that something has gone awry.