On February 24^th, the New York Times reported New York City’s release of its official ranking of 18,000 public school teachers. “The reports, which name teachers as well as their schools, rank teachers based on their students’ gains on the state’s math and English exams over five years and up until the 2009-10 school year. The city released the reports after the United Federation of Teachers exhausted all legal remedies to block their public disclosure,” the article said. The purpose of the rankings, according to the article, is to improve instruction, and the data has been used by principals and other school administrators in their decisions to promote, compensate, or dismiss teachers.

However, it is not entirely clear from the Times piece how releasing this data to the public is anticipated or intended to further the goal of improving instruction (the piece focuses on an evaluation of the data’s contents and reliability). Perhaps the New York City Department of Education hopes that the public pressure that could come from release of this information will spur principals and school administrators to give it greater weight in decision-making and/or be pushed to act on the data’s contents with regard to the employment status of individual teachers.

Although not discussed in the article, release of this information speaks to a tension between the rights of parents and the public to transparency regarding the system of public education and the rights of teachers and public employees to some degree of privacy regarding their employment, in this case, their performance (or their students’ performance) in relation to standardized tests.

There are several objections to raise to the release this kind of information linking employee performance data to individual names and places of work. First, considering the controversy over the truthfulness of the data and its accuracy in measuring teachers’ performance in the classroom, the public school teachers included in these rankings might have causes of action for defamation or libel.

In the private employment context, courts have held that employer defenses against defamation claims from employees may be permissible under the doctrine of conditional privilege.  For example, in Zinda v. Louisiana Pacific Corp., a Wisconsin court held that an employer’s publication of the reason for the firing of an employee in a company newsletter was covered by the conditional privilege and thus not defamatory to the employee. However, that privilege extends only to communication of legitimate common business, property or professional interests. Two ways in which an employer can impermissibly abuse its privilege for defamatory speech are by publicizing the information to persons not reasonably necessary or by publicizing information that is itself is not reasonably necessary to accomplish an intended purpose.

While the government, as a public employer, is generally given leeway in intruding into the privacy of its employees, it too is held to a general reasonableness standard in such cases; see, e.g. O’Connor v. Ortega (1986). It is difficult to imagine, however, how publication of controversial information, such as the New York City rankings, that is tied to individual employees’ identifications is reasonably necessary to improve instruction in New York City public schools.

The article states that the City itself cautioned the public against using this information as a definitive statement of teacher quality, and several experts quoted therein expressed concerns about its use, particularly in isolation. Given these concerns, it seems especially important that the data be used only by professionals who are aware of its shortcomings and who are in a position to contextualize the data, rather than take it as the end-all and be-all of teacher quality. It is reasonably foreseeable that parents will try to use this information to pressure their children’s schools into firing certain teachers or to assign their children to particular classrooms – actions which will not serve the broader purpose of improving instruction. Furthermore, parents’ interest in achieving the best educational experience for their children would be reasonably served by releasing this data aggregated by school, rather than at the granular level of individual teachers. That form of the data would still enable parents to make informed decisions about where to send their children to school. The level of detail with which the data has been released can only serve to publicly humiliate teachers and is only reasonably necessary for school administrators’ use, not the general public.

The United States Circuit Court of Appeals for the Fifth Circuit on January 10 upheld a Texas law requiring doctors to show sonograms to patients seeking abortions. The decision, Texas Medical Providers Providing Abortion Services v. Lakey,  functions as an unfortunate emblem of the court’s tendency to treat abortions as quasi-criminal acts rather than a legal medical procedures and improperly infringes upon the privacy and autonomy of patients’ and doctors’. The court cited the Supreme Court decision in Planned Parenthood v. Casey (1992) as grounds for its judgment: “States may further the ‘legitimate goal of protecting the life of the unborn’ through ‘legislation aimed at ensuring a decision that is mature and informed, even when in doing so the State expresses a preference for childbirth over abortion.’” . As long as required disclosures are truthful, non-misleading, and relevant, states are permitted to impose their use as regulation of medical practice, the court said. Information about both the fetus and the mother’s health is considered relevant. Again quoting Casey, the Fifth Circuit insisted: “In attempting to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Two key ideas underlie the court’s reasoning in this case: 1) the unborn are citizens of the state, and 2) legislation of this kind is reasonably calculated and reasonably necessary to ensure mature and informed decisions by would-be mothers.

While the first idea represents one answer to an ongoing scientific, legal, and social debate regarding the definition of personhood, the second encapsulates troubling assumptions that could implicate other legal rights of doctors and women, more generally. The suggestion that a woman visiting a doctor for the purpose of obtaining an abortion is inherently at risk for making – in the words of the Casey opinion – an “immature or uninformed decision” is blatantly condescending to female patients.

The strong strain of paternalism underlying the Texas law has manifested itself elsewhere as well in recent weeks. It has surely shown itself in the contours of a roiling national debate over health insurance coverage for contraceptives — both in the vehement response of an all-male body of religious leaders who treated the issue as a matter of religious principle without any reference to women’s health, and in the stunning display of a congressional panel on birth control at which appeared not a single woman. The same strain evident in the Texas law is also present in a new Virginia proposal which would require women to subject themselves to transvaginal ultrasounds so that they might be better “informed” of the consequences of their decisions. Like Casey and Gonzalez themselves, the Fifth Circuit’s recent ruling provides troubling precedent for these types of intrusive, humiliating rituals to pass muster.

The court supported its judgment by invoking both Casey and Gonzalez v. Carhart, the 2007 Court decision affirming the essential holding of Casey and asserting that a state government “may use its voice and regulatory authority to show its profound respect for the life within the woman.” Relying on this language, the court asserts that state regulation of medical practice—insofar as “deciding that information about fetal development is ‘relevant’to a woman’s decision-making” regarding an abortion—is justified. It is unclear how the state is to determine relevance—what support it needs in the form of justifying scientific proof and/or what due process should be required. Unlike decisions made by administrative agencies, the court articulates no procedural or evidentiary requirements for rules created by the legislature.

In what other private medical proceeding are patient-doctor interactions so prescribed? The intimacy of state involvement that courts have allowed for abortion consultations enforces the false idea that abortion is not so much a medical procedure as it is a borderline criminal act. The court should recognize the legality of performing medical abortions in this country and should act accordingly.

A few days ago, a student-plaintiff represented by the American Civil Liberties Union, Jessica Ahlquist, experienced such local backlash after prevailing on her successful Establishment Clause challenge. This time, however, community backlash took a new spin. Instead of the standard hate-letter or losing a friend or two, local florists got in the mix in order to express their disdain over Ahlquist’s recent success in court.

On January 11, 2012 the Rhode Island District Court in Ahlquist v. City of Cranston announced that a prayer mural hanging in Ahlquist’s public high school auditorium violated the Establishment Clause. The mural includes the text of a school prayer that was routinely recited by students before the practice was invalidated by the U.S. Supreme Court’s hallmark school prayer decision in Engle v. Vitale (1962). It begins with sectarian phrases such as “Our Heavenly Father” and ends with the hallmark endorsement “Amen.” City officials, however, disclaim and sectarian religious affiliation by noting the mural is a historical artifact from the school’s early days and therefore serves no religious purpose. After all, it was merely a gift from the Class of 1963, graduating coincidentally one year after the Warren Court rang the death-knell for school prayer in Engle.

In finding the mural to violate the Establishment Clause, the court declared per Judge Ronald Lagueux that: “The purposes of the Prayer when drafted, and the Prayer Mural, when installed, were clearly religious in nature…. No amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that.” The court accordingly granted a permanent injunction requiring the school to immediately remove the mural from the auditorium. Notably, Judge Lagueux also exclaimed the brave and courageous stand taken by Ahlquist against the Prayer Mural given the hostile response she faced and will likely continue to experience from the community.

As a token for her courageous action, the Freedom from Religion Foundation, an advocacy for the separation of church and state based in Madison, WI, attempted to send her a bouquet of flowers. Three florists located in Cranston—the city where Ahlquist lives, and one in a neighboring town, however, saw otherwise. Instead of fulfilling their historical role as bearers of good news, each florist rendered a new form of community backlash against Establishment Clause challenges by refusing to deliver thanks to Ahlquist.

According to a press release by the Freedom from Religion Foundation, all four florists refused to send Ahlquist flowers because of her recent success in the Prayer Mural case. See Here. The first shop, Floral Express, deceptively stated it was not available for business even though it answered the phone call. The owner of Floral Express then mentioned: “I am not able to fill this [order].” The second shop took it one step further: “I will not deliver to this person.” The third shop followed suit by unequivocally refusing to deliver only after hearing the flowers were intended for Ahlquist. And, the fourth shop, located outside Cranston, put the proverbial “cherry-on-the-top” by initially agreeing to take the order, but eventually refusing after patrons voraciously threatened to boycott the business if it delivered the flowers. As a result, the FFRF was forced to contact a far-distant shop in Putnam, Connecticut called Glimpse of Gaia, who not only agreed to deliver the bouquet to Ahlquist, but also threw in a second token bouquet with its own message: “Glimpse of Gaia fully supports our First Amendment and will not be bullied by those who do not. Here’s to you, Jessica Ahlquist.”

Many of the florists who denied delivery have ostensibly justified their actions upon non-discriminatory grounds. Local newspapers report that Raymond Santill, the owner of Flowers by Santil, one of the companies the FRFF attempted to order from, rejected the delivery because the person delivering the flowers would need police protection and identification to enter the home. Santil further averred that as the owner of the store he has the right to deliver or not to deliver to whomever he pleases. See Here. Similarly, the owner of Twin Florists, Marina Plowman, echoes Santil in stating: “I just chose not to do it. Nothing personal, it was a choice that I made. It was my right, so I did that. I’m an independent owner and I can choose whoever I want, whenever I want.” Id.

The Freedom from Religion Foundation, however, believes otherwise. And, they may be rights according to Rhode Island law, which offers heightened protection for religious liberties. Stemming back to Rhode Island’s religiously tolerant roots, Rhode Island General Law 11-24-2 makes it unlawful for a place of public accommodation to discriminatorily deny services on account of religion. According to the Freedom from Religion Foundation, then, the florists clearly violated this state law by refusing to deliver to Ahlquist because of atheist beliefs. The Commission for Human Rights in Rhode Island is currently investigating the matter in light of these allegations.

While it remains unclear whether additional litigation will ensue as a result of the florists’ discrimination against Ahlquist, one thing remains certain: student-plaintiffs often face backlash from a myriad of sources within their local communities in response to their Establishment Clause challenges. Thankfully, though, students such as Jessica Ahlquist are courageous enough to stand up for their First Amendment rights in the face of such community hostility. Kudos to you, Jessica Ahlquist.

In this article, I discuss how imageries based on the historical typification of Indians have been projected onto Latina/o immigrant populations that are in the United States without proper documentation. I also explore the risk such a typification poses to native-born Latina/o populations who are oftentimes unfairly implicated in surging anti-immigrant backlashes. Key questions this article addresses include: Is the idea of the “Latina/o Threat” materially connected to historical ideas concerning Indian savagery? If so, to what extent is this threat narrative connected to anti-Indian sentiment? How have historical representations of American Indians framed modern debates over the kinds of risks posed by Latina/o immigrants to the U.S.? How have these debates affected recent immigration policy?

In section I, I discuss how S.B. 1070, as amended by Arizona House Bill 2162, frames the Latina/o Threat narrative in subtle racialized terms. Specifically, I evaluate whether Arizona’s newly authorized alienage investigations are likely to function in ways that implicate
race in a constitutionally impermissible manner. In section II, I demonstrate how the idea of Indian savagery animated the way Americans typically perceived Indian societies. Further, I assert that the savagery that was often associated with Indians was seamlessly grafted onto Mexican immigrants and ultimately sparked an expansive xenophobic fear that drove the development of restrictive immigration laws along racialized lines. In section III, I demonstrate how the mixed-blood descendents (e.g. immigrants) of early indigenous Latina/o populations have been racialized consistent with that of their Indian forbearers. Throughout, I aim to show
how the Latina/o Threat narrative has its origins in anti-Indian sentiments which are themselves grounded in a deep-seated fear of a savage alien.

Read the full article here.

This article is about the response of one group of advocates to the practice of medical repatriation, also referred to as medical deportation, in which hospitals choose to send non-citizen patients, usually those in need of long-term care, back to their home countries for treatment without engaging the federal immigration process. Medical repatriation has emerged as one of the most controversial and complicated issues in health policy – a dramatic example of the desperation created for both patients and providers due to the expanding fissures in the U.S. healthcare and immigration systems. Mr. Jiménez’s case is, in many ways, typical: Under federal law, Martin Memorial was required to engage in a discharge planning process for Mr. Jiménez to locate the appropriate post-hospital services. However, patients without insurance or the ability to pay out of pocket are difficult to place into long-term care. Low-wage, undocumented workers such as Mr. Jiménez are not eligible for public benefits programs such as Medicaid, typically do not receive health insurance through their employers, and do not earn enough to pay for services themselves. Not surprisingly, then, Martin Memorial was unable to find a long-term care facility that would receive Mr. Jiménez. The hospital’s proposed alternative was to “discharge” Mr. Jiménez back to his home country of Guatemala, above the objections of his guardian.

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I. INTRODUCTION
“There will come a time when you believe everything is finished. That will be the beginning.” -Louis L’Amour

As civil rights lawyers, we try to get the biggest bang for our buck by aiming impact litigation to bring about the institutional reforms that will affect the greatest number of people who are suffering as a result of unconstitutional practices. For the Children’s Initiative at the ACLU of Illinois (“ACLU”), this attempt to use the law as a means for systemic change has meant taking on two large government bureaucracies that care for children in custody—the Illinois Department of Children and Family Services2
and the Cook County Juvenile Temporary Detention Center (“JTDC” or “facility”). The purpose of this Article is to explore the use of impact litigation as a tool for social change by examining the history of the litigation effort and reform process at the JTDC and the ways in which effective institutional reform can improve young people’s lives. I will argue that while impact litigation can be a powerful tool for institutional reform, filing a lawsuit and even winning or settling the litigation is often just the beginning of the struggle. The continued presence of a committed organization to monitor the implementation of the reform, as well as input and engagement from the community, is required to bring about widespread reform and lasting change.

II. BACKGROUND AND PROCEDURAL HISTORY
With 498 beds, the JTDC is one of the largest free-standing detention facilities for pre-adjudicated youths in the country. Most residents are fifteen to sixteen years old, but
residents can be as young as ten and as old as twenty-one. Nearly eighty percent of youths housed there are African American, approximately twelve percent are Latino, and approximately ten percent are girls. The average stay at the facility is nearly thirty days, but many youths are in and out in three days. Those youths who will be transferred to adult criminal court stay for more than a year. It is estimated that nearly 6000 young people are housed at the facility each year. Given the many young people’s lives affected by the JTDC each year and the considerable length of time for which a youth might be detained, the institution has the potential to have a lasting impact on a broad range of youths from all over Cook County, Illinois.

In the mid-1990s, the JTDC was a chaotic, overcrowded, mismanaged, and dangerous place. When ACLU lawyers learned about the unsafe conditions and inadequate services, we gained access to the facility in part through clients who were housed there who were also involved in our ongoing child welfare litigation. We were shocked and dismayed by the mistreatment of young residents, many of whom had not been found guilty of any charge or who had been detained for nonviolent status offenses. ACLU filed suit in 1999 in the Northern District of Illinois against Cook County and the facility superintendent(“defendants”) based on a substantive due process theory. The complaint alleged that the JTDC abused and neglected the children it housed, confined them in unsafe and unsanitary conditions, denied them access to educational and recreational programs, and provided them with dangerously inadequate health and mental health services. The federal judge certified a plaintiff class consisting of all of the youths who are or will be confined at the JTDC.

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Introduction: Imbler v. Pachtman Thirty-Four Years Later
For those of us who teach and write about the conduct of prosecutors, reading Imbler v. Pachtman thirty-four years later is a profoundly disturbing experience. Imbler is the linchpin for the doctrine that affords prosecutors absolute immunity from civil liability for actions that violate a defendant’s constitutional rights. Despite its revisionist history and dubious policy, Imbler is one of the Supreme Court’s most durable precedents, having been reaffirmed several times, including as recently as last Term.

The Court in Imbler viewed the prosecutor as a “quasi-judicial” official, much like a judge or a grand juror, for whom absolute immunity is vital to protect the judicial process from harassment and intimidation. Thus, according to Imbler, when a prosecutor initiates a prosecution and pursues a criminal case, the prosecutor is cloaked with absolute immunity from civil liability to allow the prosecutor to make discretionary decisions fairly and fearlessly without the distraction of a flood of civil lawsuits by disgruntled defendants. The Court acknowledged the hard choice between the evils inherent in either alternative but, quoting Judge Learned Hand, concluded that it is “in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”

As an open question thirty-four years ago, Imbler’s choice to afford prosecutors absolute immunity for advocacy functions was not entirely unreasonable. Although the Court invented a specially tailored common law history for absolute immunity, and concocted a public policy to spare prosecutors from having to defend civil lawsuits, Imbler’s accommodation is not without contextual justification. Civil rights litigation thirty-four years ago was much less hospitable to prosecutors; qualified immunity was not nearly as protective of prosecutors as it is today. Moreover, alternative sanctions for misconduct, such as criminal prosecution and professional discipline, were not clearly unavailable or ineffective; the Court was making an educated guess that these checks might serve as an effective deterrent to misconduct.9 Further, the Court’s attempt to classify a prosecutor’s conduct into functional categories such as advocacy, investigation, and administration, while not seamless and easily applied, seemed rational. In any event, as the Court acknowledged, these attempts may present close questions requiring linedrawing in future cases. Most importantly, however, the Court did not discuss the larger problem of prosecutorial misconduct, particularly as it relates to the prosecutor’s duty to disclose exculpatory evidence; the subject was not nearly as complex and controversial as it is today.

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The disheartening core of Ricci is that five members of the Court view the twin prohibitions against discriminatory impacts and intentional discrimination contained in Title VII of the Civil Rights Act of 1964 as being at odds with each other.2 They have signaled that they will treat efforts to comply with the disparate impact prohibition as a form of race-conscious decision making.3 The Court imported a standard from inapposite cases involving challenges to race-conscious remedies pursuant to the Equal Protection Clause, requiring that an employer must have a “strong basis in evidence” before taking voluntary action to eliminate a disparate impact.  Although the precise content of the standard remains unclear, the decision certainly makes it more difficult for employers to voluntarily avoid practices that disproportionately disadvantage minority applicants. In the process of applying the standard, the Court appears to have lowered the bar for validation of employment tests, thus making it easier for employers to justify the use of tests that disadvantage minority applicants, and diminishing their ability to challenge employment practices successfully.

The decision could have been worse. Notably, it did not reach the significant question expressly left open by the majority and discussed by Justice Scalia in concurrence: whether Title VII’s disparate impact standard is inherently inconsistent with the Equal Protection Clause. In addition, on a practical level, the opinion leaves open the possibility that well-intentioned employers and determined plaintiffs may still find room to advance equal opportunity.

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The public ethic against discrimination finds its barrier at the edge of consciousness. Almost everyone in the workplace understands that discrimination is prohibited, and this understanding reduces acts of open hostility or conscious discrimination. Far fewer people in the workplace understand how underlying stereotypes can operate at an unconscious level to affect workplace decisions. This form of discrimination, while less well understood, is also prohibited. As a result, discrimination continues to occur, even in an environment where it is condemned and even by people who share in its condemnation.

The enforcement mechanism has found its barrier in a legal environment where typical dispute resolution options are unattainable for most victims of discrimination. For most workers, it is prohibitively burdensome to obtain legal assistance or to take effective action.

Although it is necessary to address both of these barriers — the complex nature of discrimination and problems with the enforcement mechanism — this article focuses on the latter, ending with a discussion of possible solutions.

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