We welcome expressions, support, and collaboration from like-minded organizations

 

 

CIVIL RIGHTS POLICIES, ANALYSIS, AND RESOURCES

The Civil Rights Domain tracks and reports on policies that deal with voter rights, police brutality, free speech, the right to privacy, and other human rights enshrined in our constitution. This domain tracks policies emanating from the White House, the Justice Department, Department of Homeland Security, the Department of Housing and Urban Development, and state legislatures. Our Principal Analyst is Rod Maggay who can be reached at rod@usresistnews.org.

Latest Civil Rights Posts

 

President Trump’s Plan To Rollback Civil Rights Protections Starts With The “Disparate Impact Rule”; White House Policy

President Trump’s Plan To Rollback Civil Rights Protections Starts With The “Disparate Impact Rule”; White House Policy

Policy Summary: For the past year, there has been a movement in the Trump Administration to roll back civil rights protections by targeting a legal rights standard that has been used for decades – the disparate – impact rule. In 1971, the U.S. Supreme Court decided Griggs v. Duke Power Co. which first recognized the disparate – impact rule. The case dealt with racial discrimination under Title VII of the Civil Rights Act of 1964 and the hiring practices of the power company. The Court there stated that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” The rule was thus recognized as a legal theory to bring a lawsuit and the legal standard to prove discriminatory actions. This legal rule is the opposite of the disparate treatment legal rule. That rule permits a lawsuit if a plaintiff can prove that a party or policy was enacted with the purposeful intent to discriminate against a certain group of individuals. Both theories are available as parts of various agency regulations while others have been enshrined in statutes, such as voting rights laws.

For the last year, the Trump Administration has focused on only supporting disparate – treatment claims (intentional discrimination claims) and has made efforts to try and rescind disparate – impact rules, most notably at Housing and Urban Development (HUD) and with racial disparity school discipline guidance rules at the Department of Education. LEARN MORE 

Analysis: The key thing to remember about the disparate – impact and disparate treatment legal rules is that a disparate – impact claim can be brought in court if there is a policy that does not appear to be discriminatory based on the text or words of the policy but the effect of the policy as implemented results in discrimination against a protected class of people. A disparate treatment legal theory is one where the words or text of the policy is clearly discriminatory against a class of people.

This distinction is important because it helps to illustrate the direction that the Trump Administration is trying to chart in the field of civil rights. The reason that the Trump Administration and conservatives want to eliminate disparate – impact rules from federal agency regulations and other areas of the law is because they prefer to only punish those who intentionally engage in the various types of discrimination. They do not find it fair that a neutral policy that inadvertently discriminates against a class of people should end up with someone punished when there was no intent to discriminate. However, supporters of the disparate – impact rules argue that the disparate – impact rules are necessary because it can often be difficult, if not impossible, to prove that a person or entity intentionally discriminated against a class of people. Most people are more careful in their communications, such as e-mail, and will take care to not say anything that could implicate themselves. And, critical documents can be lost with the passage of time and essential decision – makers eventually die which makes it harder to prove that there was an intentional effort to discriminate.

The efforts currently going on at HUD and the Department of Education to try and eliminate this useful legal theory is disconcerting and could have far – reaching implications beyond HUD and DOE. The issue could likely affect transgender issues (serving in the military, gender identity bathrooms) and the ability to pursue a claim collectively as a class. The same can be said with community claims regarding policing and law enforcement issues. These rules are scattered through a number of agency regulations and a number of statutes but they must be monitored closely to ensure that a valuable legal tool to fight racial discrimination in a number of sectors of American society is not removed. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoKayle Kaupanger

Congress Debates Modifications to Section 230 of the Communications Decency Act Despite Opposition; Congressional Bills

Congress Debates Modifications to Section 230 of the Communications Decency Act Despite Opposition; Congressional Bills

Policy Summary: Section 230 of the Communications Decency Act of 1996 states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In the last few months, there has been a movement in Congress to reconsider Section 230 and to maybe roll back the protections that Section 230 provides. In June 2019 Senator Josh Hawley (R-MO) introduced the “Ending Support for Internet Censorship Act” which would modify Section 230 significantly. The bill would remove automatic Section 230 immunity for big tech companies. Additionally, the bill would condition immunity for big tech companies if they can prove through “external audits” that their third party moderation practices are “politically neutral.” And on October 16, 2019, the House Energy and Commerce Committee held a hearing that featured testimony from Electronic Frontier Foundation (EFF) Legal Director Corynne McSherry defending Section 230. And just this past month, Speaker of The House Nancy Pelosi backed a move to omit Section 230 protections from a number of potential global trade deals. Speaker Pelosi’s office noted that Congress was still debating the future of the law as one reason why it was not included in upcoming trade deals. LEARN MORE 

Analysis: While Section 230 has always been controversial since its passage in 1996 the recent genesis for the debate in Congress over the section lies in Congressional frustration with Facebook, Twitter and other online platforms in developing a workable policy that addresses hate speech, political speech and other speech concerns. The inability to make progress in that arena has prompted Members of Congress to turn to Section 230 and maybe make some changes to that law to encourage online platforms to rein in companies to motivate them to deal with the speech concerns that have plagued many of those platforms and websites.

But is removing the immunity from those potential lawsuits the best way to approach hate speech and online bullying that can be found on those platforms? While those concerns need to be addressed on a daily basis and no workable solution has yet been drafted, it is telling that two of the most well known civil rights groups in the country have come out in defense of Section 230 as written and have taken the position to oppose changes to the law. The American Civil Liberties Union (ACLU) issued a blog post that praised Section 230 and listed instances where the law has helped to foster technological innovation and free speech while even acknowledging that mistakes can happen here and there. But the overall point made by the ACLU is that Section 230 is positive. And the Electronic Frontier Foundation (EFF) has issued one – page information sheets that explains why Section 230 is important, not broken and a benefit to society. The info sheets is similar to the points made by the ACLU and is significant because it comes from EFF – a well – respected non – profit group whose mission is to defend civil liberties in the digital world.

The other side of the argument in Congress has made waves for what it is suggesting but the option, specifically from Senator Hawley in Missouri, is seen as nothing but a last resort for Congress’ failure to push online platforms to workable speech policies. Senator Hawley’s “Ending Support for Internet Censorship Act” is disturbing on a number of levels. His bill would give the federal government a role in determining what speech is appropriate on websites which can easily lead to censorship of topics that the government does not favor. And the term “politically neutral” is a term that is so vague that it can only cause confusion in trying to have it implemented in a fair and objective manner. This bill from Senator Hawley would destroy any benefits that Section 230 has brought over the last twenty – three years.

While the debate in Congress continues over the future of Section 230, it is becoming clear that Section 230 has had a positive effect. While it can of course be improved as any law can, the positions taken by the ACLU and EFF touting its benefits should be taken seriously lest the U.S. make a rash and uninformed decision to modify Section 230, especially in a way that Senator Hawley’s bill proposes to go. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoQuino Al

Federal Court of Appeals Case Rules On The Limits of Obligations Of Colleges and Universities In Title IX Campus Sexual Assault Incidents

Federal Court of Appeals Case Rules On The Limits of Obligations Of Colleges and Universities In Title IX Campus Sexual Assault Incidents

Policy Summary
On December 12, 2019 Circuit Judge Alice M. Batchelder issued the opinion of the court in Kollaritsch v. Michigan State University. This opinion helped to clarify how “student – on – student” sexual harassment incidents are to be handled as it pertains to the causes of action a victim can pursue under Title IX of the Education Amendments of 1972. Title IX is a civil rights provision that was passed to supplement the Higher Education Act of 1965. It reads “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In the early 2000’s, this law evolved and was now primarily being used to adjudicate alleged sexual misconduct between co – eds on college campuses.

In January 2012 Emily Kollaritsch filed a report to Michigan State campus authorities alleging a sexual assault. An investigation was initiated and the perpetrator was placed on probation and prohibited from contacting Ms. Kollaritsch. However, Ms. Kollaritsch continued to see the perpetrator around campus which prompted her to file a “retaliation complaint.” Another investigation was undertaken but this time it was determined that no retaliation occurred and was merely the result of Ms. Kollaritsch seeing the perpetrator around campus. Afterwards, Ms. Kollaritsch brought a lawsuit against the school alleging a Title IX violation claiming the school’s actions deprived her of educational opportunities. The district court ended up dismissing all of the plaintiff’s claims except four claims that relate to the Title IX claim. The case was then appealed to the United States Court of Appeals for the Sixth Circuit where the court ruled that Ms. Kollaritsch and the other plaintiffs did not have a Title IX case to pursue for their sexual assault allegations. LEARN MORE, LEARN MORE

Analysis
The issuance of the opinion in this case has caused quite a stir with a number of publications calling the ruling a “narrowing of a school’s Title IX obligations” to female students who are victims of sexual assault. But those interpretations are a bit extreme and overlook the overall effect of this decision on Title IX cases. The opinion is actually a pretty straightforward illustration of how a court interprets words and phrases in a statute and how a court can rein in interpretations that go further than what is allowed under existing rules and cases. In this case, Circuit Judge Batchelder helped elaborate on the Title IX cause of action against a school by the student by clarifying key terms found in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). That case held that a school can be held liable to a student if [1] it is deliberately indifferent to sexual harassment and [2] has actual knowledge that is so severe, pervasive and objectively offensive…to deprive the victims of…educational opportunities. Her opinion goes in depth to define each term but when it came time to apply the standard to the facts of Ms. Kollitscher’s case it found that she did not have an appropriate Title IX action. The court said that the victim merely “seeing” the perpetrator around campus did not amount to severe, pervasive and objectively offensive harassment. And it also stated that the school was not deliberately indifferent because it did not take an act or perform an act of omission that could be considered unreasonable to the victim. The court is careful to not be dismissive of the injuries suffered by the victim. But in a civil rights context which could have resulted in liability against the school the court made clear that a victim’s complaint must not be general in nature and must be factually specific as to the harm she suffered, why it was caused by actions taken by the school and not merely be a list of other harms suffered by third parties on campus.

While this opinion may be a controversial ruling at the moment, the key takeaway is that the ruling is laying out the outlines for how sexual assault claims based on Title IX at institutes of higher learning need to be approached. What the case did was help clarify what the obligations are of a school and other parties whenever a sexual assault complaint is filed at and against the school. The way schools approach sexual assault incidents may be different in the future after input from legislators, victim rights groups and other stakeholders but at least for now a court is wading into the issue with a plan that could lay the groundwork for a fair and workable plan in the area of campus sexual assaults. LEARN MORE, LEARN MORE

Engagement Resources:

RISE NOW – Sexual Assault Survivors Bill of Rights – group advocating sexual assault survivors legislative reform bills.

RAINN – non – profit group geared to developing programs and services that support survivors of sexual violence and their loved ones.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoMihai Surdu

President Trump Signs Controversial Executive Order to Combat Anti – Semitism On College Campuses; Executive Order; December 2019

President Trump Signs Controversial Executive Order to Combat Anti – Semitism On College Campuses; Executive Order; December 2019

Policy Summary: On Wednesday December 11, 2019 President Donald J. Trump signed an executive order declaring Judaism a “nationality.” The executive order goes on to state that a violation of Title VI of the Civil Rights Act of 1964 will have occurred if there is discrimination against Jews in programs and activities in schools, universities and college campuses that receive federal funding. As originally written, Title VI prohibits discrimination on the basis of race, color or national origin. The Jews and the Jewish community were not defined or grouped in any of the Title VI categories until President Trump signed the executive order to include them. LEARN MORE

Analysis: The controversial executive order signed by President Trump is guided by the noble purpose of combatting anti – Semitism but the order has serious flaws. First, the executive order likely runs afoul of Free Speech and the First Amendment. Second, the executive order may be unconstitutional.

Since the executive order was written specifically for Title VI of the Civil Rights Act of 1964 application of the order has been focused on discriminatory incidents that occur at schools, colleges and universities that receive federal funding. What President Trump was likely trying to do with this order was to try and suppress criticism of the State of Israel that has become more commonplace at American schools of higher learning today. More and more students are asking the tough and uncomfortable questions when it comes to the policies of the State of Israel and that state’s treatment of the Palestinian people. There has also been growing support on college campuses for the BDS (Boycott, Divest, Sanction) Movement which is working to end international support for Israel’s oppression of the Palestinians. The worry with President Trump’s order is that the bill will be used for more than protection of Jews from anti – Semitic incidents but will instead be used to try and silence legitimate criticism and protests against the State of Israel and her inhumane policies. This bill could very well be used to try and force college students to adopt the viewpoint stated by the government instead of letting students come to their own conclusions about the Middle Eastern conflict and the peoples involved. This executive order is a direct affront to the Free Speech Clause of the First Amendment and is trying to conflate anti – Semitism with legitimate criticism of Middle Eastern policies. The U.S. Government should never get in the business of telling students which side of an issue they should take, much less make the receipt of federal funds contingent on whether students takes the government’s view.

Secondly, there is a lingering issue whether this executive order signed by the President is valid. The President is in charge of enforcing the laws of the United States after Congress has voted on and passed the bills. During this process, Members of Congress write the bills, laying out all of the obligations and consequences that the proposed law will provide. In addition, they also write the definitions that are to be used for many of the obscure and frequently used words so that there is no confusion as to what the words mean and the larger bill covers. The President cannot simply add a meaning to a specific word or clause on a whim. If Congress wanted “Jews” to be categorized as a “national origin” then they would have been specific in stating so when they crafted the bill. While the purpose of combatting anti – Semitism is admirable, it seems that the White House simply ignored legislative procedure and exercised executive powers in a manner that was not to be used by the executive branch. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by Nathan Dumlao

A New Facial Recognition Technology Bill That Does Not Go Far Enough

A New Facial Recognition Technology Bill That Does Not Go Far Enough

Policy Summary
On November 14, 2019 Senators Mike Lee (R-UT) and Chris Coons (D-MD) introduced in the U.S. Senate the Facial Recognition Technology Warrant Act. This bi – partisan bill introduces limits on how federal agencies can use facial recognition technology. Both senators issued a statement that called the bill a way for American citizens to be “protect[ed] from facial recognition abuse.” Specifically, the bill would require federal law enforcement officials to obtain a warrant if they are to use facial recognition technology to continue to track and monitor a suspected person’s movements in excess of seventy – two (72) hours. LEARN MORE

Analysis
The bill introduced in the U.S. Senate adds a much needed criminal procedure limitation on the use of the still emerging facial recognition  technology but, as ACLU senior legislative counsel Neema Singh Guliani said, “The bill falls woefully short of protecting people’s privacy rights.”

While Senators Lee and Coon tried to tout the benefits of the proposed bill a number of criticisms about the bill emerged from numerous interested parties. One issue was that the bill does not prohibit the use of the technology to identify persons. This had been the way the technology had been used by law enforcement authorities. The bill only addresses continued ongoing surveillance of a person, which occurs only after identification by law enforcement. It does not prohibit use of the technology to identify people in real time or through the use of photos like DMV photos. Another issue is that the bill is completely silent on the use of the technology by private companies who want to scan the faces of their customers for use in a commercial and profit – driven context later. The bill also does not mention the use of the technology in public housing units with the growth of the smart home technology market. A previous bill was used to address that specific housing issue but was ignored in the Facial Recognition Technology Warrant Act.

What is significant here is that there are a large number of ways that facial recognition technology can be deployed and used in an invasive and inappropriate manner. This bill only addresses a tiny portion of how to bring facial recognition technology under control and within constitutionally permissible limits. More research needs to be done and a more comprehensive bill needs to be constructed in order to prevent the technology from being used in a manner that goes drastically further than most American citizens will allow in their homes and their communities. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoLudvig Wiese

Facebook Political Ads Letter” Highlights Need To Pursue Sweeping Changes Beyond Social Media Platforms; November 2019

Facebook Political Ads Letter” Highlights Need To Pursue Sweeping Changes Beyond Social Media Platforms; November 2019

Policy Summary
 On October 28, 2019 the New York Times published a report and a copy of the letter directed to Mark Zuckerberg that a number of Facebook employees signed. The letter contained criticisms of Facebook’s recently announced policy concerning misinformation in political advertising on the social media platform. The letter was prompted by recent comments from Mr. Zuckerberg himself who said that Facebook will no longer ban advertisements with “false or misleading content” and will not “fact check” the content of political ads. Mr. Zuckerberg reasoned, “We think people should be able to see for themselves what politicians are saying.” And he also stated “I don’t think it’s right for a private company to censor politicians or the news in a democracy.” LEARN MORE 

Analysis
The letter signed by a number of Facebook employees highlights the complexities of dealing with political speech from politicians and their groups (political action committees (PAC’s),  and the national political party on social media platforms and in determining if the speech may be false and misleading. Mark Zuckerberg does get it right when he stated that Facebook should not be in the business of censoring politicians or in monitoring their content. People must decide for themselves the merits of the message that politicians are putting forth.

But the letter highlights a problem with political speech that pre – dates the rise of social media platforms that is not necessarily restricted to digital activities. In this article about the 2008 presidential campaign from TIME magazine Amy Sullivan charts the history of false and misleading statements from election candidates and shows that the United States has a long history of allowing falsehoods from candidates in the political arena. While false and misleading advertising can be regulated despite First Amendment Free Speech concerns, political advertising is categorized separately as political speech and that allows uncensored, misleading and false information to reach the public. The rationale for not censoring or regulating political speech is that it permits people to judge for themselves what appeals to them. This is a highly contentious position that has been made all the more difficult with social media platforms and the speed with which messages can spread, the ability to target specific groups and the amount of money being spent on political ads.

What needs to change here is not simply adding new rules for political advertisements on social media platforms alone but adding new rules and regulations that will apply to all kinds of media – new mediums such as social media and podcasts as well as old medium such as newspapers, television and radio. The proposals outlined in the Facebook letter – clear labels on what is political advertising, restrictions on ad targeting and spending caps – are all good steps that will undoubtedly help promote transparency on social media platforms. But change also needs to go deeper and change the American tradition of allowing misleading campaign statements and advertising that face no repurcussions. Mark Zuckerberg in deciding to no longer ban false and misleading political advertising was likely just following the American rules concerning political speech as they have been applied to TV, newspapers and radio. And until America comes around and changes the landscape to those old mediums there is no reason for the new mediums, such as Facebook, to follow a different path. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

 

Photo by unsplash-logoKon Karampelas

Trump’s “Spying “Allegation Against the Obama Campaign  Is a Hoax

Trump’s “Spying “Allegation Against the Obama Campaign Is a Hoax

Policy Summary
On October 25, 2019 President Donald J. Trump was interviewed by author Doug Wead for an upcoming book on President Trump’s presidency thus far and repeated a 2017 claim that the Obama Administration had been caught spying on his 2016 campaign. The President made clear that it was at the direction of President Obama and that he felt that he “had my wires tapped” in Trump Tower. The story continues to appeal to conservative and right – leaning voters and even prompted Attorney General William Barr to state during testimony before a Congressional committee hearing that he believed spying against the Trump campaign did occur. Mr. Barr’s comments also included statements that indicated he was open to investigating the charges of spying if there are other remaining issues to be addressed. LEARN MORE

Analysis
President Trump’s continued assertion that President Obama spied on his 2016 campaign is simply false. What had occurred is a routine national security process, which President Trump is trying to twist into a scenario where he can lob accusations of treason against the former 44th President’s administration.

What had occurred is that U.S. intelligence agencies were monitoring calls and communications of foreign nationals as they are permitted to do under the Foreign Intelligence Surveillance Act (FISA). That statute permits secret intelligence courts to issue surveillance warrants against non – American citizens. Once the surveillance begins reports are written of the progress of the surveillance activities with the names of American citizens redacted if the activities of the foreign national surveillance target communicates or comes in contact with an American citizen. This safeguard procedure is implemented in order to prevent the government from spying on American citizens. However, a limited number of national security officials – including the National Security Advisor – are permitted to ask that the names of American citizens who have been redacted in a national security report be revealed in order to clarify the information in the report or understand the foreign intelligence value of the information. This is why a national security official would ask for American citizen names in a report to be revealed, or “unmasked.”

Prior to and during President Trump’s 2016 campaign and transition, properly issued surveillance warrants were issued and the United States was in the process of monitoring the calls and communications of Russian nationals. However, these foreign nationals soon made contact and communicated with Trump campaign and transition officials. National Security Advisor Susan Rice received the reports of the activities of the foreign nationals interacting with Trump campaign officials and, pursuant to law, requested that the names of Trump associates be revealed – unmasked – in order to get a fuller picture of what the foreign nationals were doing communicating with Trump associates. Susan Rice was authorized by law to do this in her position as National Security Advisor. What she was doing was simply following the activities of foreign citizens – Russian nationals – to determine if they were engaged in any sort of illegal activity. The fact that they ended up communicating with Trump campaign officials does not establish that the Obama Administration was spying on Trump officials. The only reason the American citizens from Trump’s campaign had their names revealed was because of communications they had with the foreign nationals. However, President Trump refuses to see and acknowledge this perfectly legal behavior even after it has been proven that the Obama Administration was not spying on his campaign. For him, it is just easier to try to accuse Ms. Rice and the Obama Administration in order to try and deflect from some of his own comments and activities, some of which raise questions about possible treasonous behavior in his own administration. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoMarkus Spiske

U.S. Attorney General William Barr Proposes “Back – Door” Access To Allow Government To Read Your Digital Messages

U.S. Attorney General William Barr Proposes “Back – Door” Access To Allow Government To Read Your Digital Messages

Policy Summary
On January 25, 2019, it was reported that Facebook was planning to implement end-to-end encryption of messages across its Facebook Messenger, Instagram and Whats – App messenger platforms. Facebook said that the plans would help users talk to each other much more easily across the platforms. The target date for full implementation is 2020.

On October 4, 2019 Attorney General of the United States William Barr sent an open letter to Facebook founder and CEO Mark Zuckerberg titled “Facebook’s PRIVACY FIRST Proposals.” In the letter, which was also signed by the United Kingdom’s Secretary of State for the Home Department Rt. Honorable Priti Patel MP and Australian Minister for Home Affairs Honorable Peter Dutton MP, the Attorney General asks Facebook to not continue with its plan to implement end to end encryption of messages across its messenger platforms and to include a means for law enforcement to access the content of communications sent through the messenger apps. This type of access is known as “back – door” access because it permits the government access to the digital communications without permission of the user or the social media platform. LEARN MORE

Analysis
End-to-end encryption of messaging is the process where messages are sent digitally between persons which can only be read by the sender and recipient of the message. Even Facebook engineers cannot read the message while in transit or if opened prior to receipt by the recipient. Facebook’s plan to implement end-to-end encryption for the three messaging systems was designed to ensure a level of reliability and privacy when a user sent a message to another user. However, it is William Barr’s request for “back – door” access that has alarmed many privacy activists.

The trouble with Attorney General Barr’s request is that his request for tech companies to provide access to government officials would simply undermine the privacy and security of ordinary people who want to have a simple conversation online. Many people message their family and friends for all kinds of reasons, some of which many prefer to keep confidential. And confidential messages are not always illegal. Some confidential messages may be for a romantic purpose or even for a professional purpose like conversations between an attorney and a client. If a “back – door” is built into the messaging system, then ordinary people can no longer be sure if their communications are confidential or private.

What the Attorney General also overlooks is that there is still a way for law enforcement authorities to acquire the messages without the need for “back – door” access. In the United States, law enforcement can still apply for a search warrant and acquire the messages that are in the possession of the sender or recipient. Messages are routinely saved in “Sent” folders and “Inboxes” and would be available that way. The use of a search warrant would also ensure safeguards such as an unbiased judge’s approval for the search warrant and specificity in what the search would entail. What Attorney General Barr is suggesting is a way for law enforcement to actively read the messages while in transit and open them at the government’s discretion which is akin to government eavesdropping on phone calls while they are happening without probable cause or a warrant. Attorney General Barr’s proposal is in direct contravention to the purposes of the Fourth Amendment and a person’s right to be “secure in their persons, houses, papers and effects” and secure “against unreasonable searches and seizures.”

Finally, Attorney General Barr’s proposal is disingenuous because he is trying to make this an issue of child pornography and terrorism in order to tug at the heartstrings of ordinary citizens. While child pornography and terrorism are terrible crimes that should be pursued and punished aggressively those crimes should not be used as a justification to ignore or erode other rights related to privacy. If child pornography and terrorism are used as a justification anytime the government wants to do something than they will always be used as a trump card to override any legal protection or any kind of dissent. The ability to conduct investigations and prosecute all kinds of crimes has worked together with the Fourth Amendment and that framework shouldn’t be ignored just because of new technology or appeals to truly terrible crimes. New technology is no justification to ignore long held rights and cherished civil liberties. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

PHoto by unsplash-logoChristian Wiediger

Court Upholds Harvard’s Use Of Race As A Factor in Admissions Case

Court Upholds Harvard’s Use Of Race As A Factor in Admissions Case

Policy Summary
On October 1, 2019 Judge Allison Burroughs of the United States District Court for the District of Massachusetts issued a ruling in the case Students for Fair Admissions v. Harvard. The Students for Fair Admissions (SFFA) filed the case in November 2014. The group had brought previous cases aimed at challenging affirmative action policies at colleges and universities around the country. In the Harvard case, the group alleged that Harvard intentionally discriminated against Asian – American applicants to the school in violation of Title VI of the Civil Rights Act of 1964. That title prohibits discrimination by programs and activities that receive federal funding. After a three week trial conducted at the end of 2018, Judge Burroughs ruled against all of SFFA’s counts and ruled that [1] Harvard’s admissions program was narrowly tailored to serve a compelling government interest, [2] that Harvard did not engage in racial balancing, [3] did not use race as a plus factor, [4] that other race – neutral alternatives were not available and [5] that Harvard did not intentionally discriminate against Asian – American applicants. LEARN MORE

Analysis
In this closely watched case, the district court issued a victory for supporters of diversity in higher education although the case is likely headed for a long appeals process that could very well end up in the U.S. Supreme Court. While that possibility is likely many years down the road, if at all, it is important to note the rationales for Judge Burrough’s ruling.

It is clear from previous cases that the Students for Fair Admissions Group and its director Edward Blum have wanted nothing but to discredit and dismantle affirmative – action programs around the country. In her ruling, Judge Burroughs was very careful in acknowledging that affirmative – action programs are “not perfect” and not meant to be permanent and showed that the admissions program at Harvard was constructed in a manner that was constitutionally sufficient. The “strict scrutiny” analysis applied to the program demonstrated that Harvard’s admissions program did enough to serve the interests of building a diverse student body and did not do more than was necessary to achieve that goal because race was used in a holistic fashion together with other non – race factors. And in all the remaining counts, she showed how race was never used as a deciding factor such as part of a fixed quota system and that the use of race as a “plus” factor still permitted the admissions committee enough flexibility to consider all other elements of the applicant’s application. In short, race, when used was constitutionally permissible according to the limits set by prior Supreme Court cases.

What also made this interesting was how selective the plaintiffs were in their use of statistical data while ignoring other facts that they found inconvenient to their arguments. As an example, SFFA tried to point to a Harvard recruitment program that sent recruitment letters based on PSAT scores. Those letters showed that Asian – American students received those unsolicited letters if they had a 1370 score while white males would receive those letters if they only received a 1310 on the PSAT. However, Harvard shot back that the letters are an invitation to apply to Harvard. Once a student enters the applicant pool different standards are used when reviewing an applicant’s application. And in another example, Harvard’s applicant rating system exposed SFFA due to the fact that their analysis omitted athletes and children of alumni. This led to accusations of SFFA trying to manipulate their statistics to fit their discrimination narrative. Again, Harvard pushed back and said that an entire review of the applicant pool was necessary and, more importantly, that their forthright statistical analysis showed that being Asian – American did not impact an applicant’s likelihood of getting accepted to the school.

Even though Judge Burroughs clearly demonstrated how this case was permissible within the limits of existing case law, the case will in all likelihood be appealed where it will be hotly debated more on a policy level than a legal one. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

  • Harvard Admissions Lawsuit – webpage from Harvard about the case.
  • American Civil Liberties Union (ACLU) – statement from group on case with link to amicus brief filed by the ACLU on in support of Harvard.
  • This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoNathan Dumlao

President Trump Misconstrues Sixth Amendment Constitutional Right To Confront Accuser

President Trump Misconstrues Sixth Amendment Constitutional Right To Confront Accuser

Policy Summary
The Confrontation Clause contained in the Sixth Amendment to the United States Constitution states “In all criminal prosecutions, the accused shall enjoy the right…to be confronted by the witnesses against him.”

On September 29, 2019, it was revealed that an anonymous member of the U.S. intelligence community filed an internal “whistleblower” complaint with the Central Intelligence Agency (C.I.A.) regarding a conversation President Trump had with Ukrainian President Volodymyr Zelensky. The complaint triggered an investigation by the House Intelligence Committee. After the incident was exposed by the Washington Post President Trump demanded in a series of tweets to meet his accuser, the whistleblower who filed the complaint that led to the inquiry from the House Intelligence Committee. LEARN MORE, LEARN MORE, LEARN MORE

Analysis
While the allegations leveled against the President are serious on their own merits – President Trump speaking with a foreign leader and threatening to not release $400 million in aid unless the Ukrainian President performed a favor in digging up dirt on potential 2020 presidential rival and opponent Joe Biden – one thing that got lost in the scandal is the assertion President Trump made in his September 29, 2019 tweet storm.

When President Trump demanded in his tweet that he deserved to meet his accuser, just like every other American, he was most likely referring to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. However, the President, possibly due to anger and not being fully informed, misconstrued the true purpose of this constitutional right. The Confrontation Clause only applies to criminal prosecutions and helps to guarantee that a person will not be convicted without the chance to test the accusations made against him through cross – examination of the accuser under oath. While the incident of President Trump’s July 25th phone call is certainly troubling the House committee inquiry is not a criminal prosecution. Thus, there is no reason to require the clause to be applied to President Trump yet. In addition, the clause speaks to how an accused is to face the possibility of conviction for a crime and what is required during a trial in a court of law. The fact there is no criminal trial against President Trump makes his demands somewhat silly at this point. There is also the possibility that the President is demanding to know who the anonymous whistleblower is now in order to play the incident out in the press and to try to smear the person publicly in order to try to discredit his or her claims. But a constitutional right whose purpose is to ensure a fair trial for accused persons should not be used to support Trump’s political purpose in trying to smear a person, if that is his intent in wanting to know the identity of the whistleblower.

What is likely going on is that the President finally recognized the gravity of the situation he had put himself in – soliciting a foreign power to deal with a political rival – and lashed out in a similar manner that a person accused of a crime would react. While the consequences against President Trump can be severe – removal as President of the United States – what the President has demanded simply does not apply to his situation at the moment and confuses criminal procedure with political disputes which play out in very different ways. LEARN MORE, LEARN MORE

Engagement Resources

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org

Photo by unsplash-logoDXL

x
x

GET CONNECTED---signup to receive free, just in time briefs on government policies and the organizations working to resist them, IN YOUR INBOX.

USRESISTLogo

GET CONNECTED

signup to receive free, just in time briefs on government policies and the organizations working to resist them, IN YOUR INBOX.

You have Successfully Subscribed!

Pin It on Pinterest