Recently in Law Category

The case of Ricci v. DeStefano involved 17 firefighters who had taken the qualifications exam to become firefighters. All passed, all were white, but one Latino, and the city invalidated the test because they feared a racial discrimination lawsuit. The court found that this was essentially "reverse" racism and violated Title XII.

The ruling yesterday to overturn Ricci v. DeStefano was another bad decision in a series of bad decisions by the SCOTUS that will have implications for communities of color, women and poor people. Legal Momentum tells us why,

The Court created a new, more stringent standard for employment discrimination claims in striking down the New Haven Fire Department's attempt to ensure that its promotional exam did not discriminate against Black and Latino candidates. We believe that the standard articulated by the Court reflects a flawed interpretation of Title VII and is contrary to congressional intent.

Irasema Garza, President of Legal Momentum, stated: "Employment discrimination continues to be a major problem. To this day, women and minorities remain egregiously under-represented in many employment sectors. Astoundingly, the Court's decision acknowledges this fact and yet requires employers to avoid policies and practices that would help to remedy this discrimination. This decision will make it far more difficult for women and minorities to get good jobs in fields that continue to exclude them, such as firefighting, and for employers to eliminate barriers that have proved discriminatory in their effect."

Further, as a supporter of Judge Sonia Sotomayor's nomination to the Supreme Court, Legal Momentum strongly disagrees with those who might use the Court's decision to imply that Judge Sotomayor and her colleagues in the Second Circuit erred in their ruling below. The Second Circuit panel of which Judge Sotomayor was a part acted with appropriate restraint in applying the precedent as it existed at that time. The matter before the Supreme Court involved issues of first impression and the Second Circuit's opinion was consistent with the views of four Justices on the Supreme Court as well as with the Equal Employment Opportunity Commission and the Department of Justice.

Also, what about the possibility that Alito was also racially biased in making this decision? As Adam aptly asks at Tapped, why is racial discrimination only considered an offense when it is women or people of color being biased against whites?

A federal judge, calling his crimes "extraordinarily evil," sentenced Bernard L. Madoff to 150 years in prison today for operating a huge Ponzi scheme that violated thousands of people's trust and caused astronomical loss. I'm reminded of Nancy Goldstein's great piece over at Salon (which Ann linked to a while back in her WFR) about how the closing of two of Madoff's clients, the Picower Foundation and the JEHT Foundation, are affecting funding for advocacy and activism:

The media's obsession with wealthy individuals who have been ruined by Madoff and feel betrayed is understandable. But when that story wears thin, let's hope the cameras will document the effect of the $42 million shortfall that progressive nonprofits will face in 2009 without funding from JEHT and Picower. We've only just begun to understand the implications of that loss for women's health and human rights.

On the 40th anniversary of Stonewall, June 28, Fort Worth police raided The Rainbow Lounge and made numerous arrests. Here's an excerpt of an eye witness account:

My name is Kayla Lane. I am a Ph.D. student at UC-Santa Cruz, staying with my sister, Kelly Lane, for the summer. We and a few of our friends went to the new Rainbow Lounge last night to dance and have some fun. I was in the VIP section when police officers started coming up there. The first arrest (that we saw) was right in front of me in that section.

They asked the guy if he had been drinking, and he said some, and they snidely replied, "Well, we'll see how much!" and plastic handcuffed him as they read him his rights The guy was doing NOTHIG wrong. It was utterly repugnant.

Once I saw this happen, I decided to try and speak with one of the police officers themselves, to go straight to the source and get their side. My sister Kelly and I simply started asking what they were doing here, stating how suspicious it seemed on this date and in this specific club, etc. This was a "State Policeman," whose name I forgot, who tried to explain their actions by referring to "anonymous tips" and "disgruntled ex-bartenders." We pointed out the place was open a week, so the disgruntled ex-bartender source seemed a bit unlikely! He wouldn't really answer my questions. although he did try to grab my hand and flirt with me (which was completely uninvited).

After this, we saw the policemen go into the men's restroom, pull out at least two guys from handcuffs from there, and pull one onto the ground before forcefully removing him. What were they doing in there? Raucously disposing of their waste?! There was no reason for ANY of those arrests, at all. These people were NOT drunk, or even overly happy or silly.

I am incensed and horrified by the way everyone at this location was treated. I hope this will get as much publicity as it deserves, and that a myriad of challenges and complaints will be made to the FWPD and other media sources.

Read more about the incident, and the follow-up protests here.

Today the Supreme Court ruled 8-1 that it was illegal for middle-school officials in Safford, Arizona to strip-search 13-year-old Savana Redding because another student claimed she'd hidden ibuprofen in her bra. The lone dissenting vote was Clarence Thomas.

Thomas warned that the majority's decision could backfire. "Redding would not have been the first person to conceal pills in her undergarments," he said. "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school."

That's not a typo. Jill quips, "Thomas only restates what high school girls everywhere have always known: Your panties are the safest place to secrete. "

On a more serious note, Amanda ponders what this means for student privacy rights and power dynamics in schools more generally. She writes,

I doubt it will do much to roll back the problem of zero tolerance policies, however, which are the main problem at hand.  Linking this back to Jesse's post about discipline patterns and prejudice, it's important to understand that in zero tolerance land, it becomes acceptable to freak out over things like a girl having Midol in her purse or some boy wears baggy pants.  When anything can be treated like rock solid evidence of criminality, it becomes super easy to railroad kids that trip up the school officials' prejudices.  Not that I don't think the school-to-prison pipeline couldn't exist without zero tolerance, but I'm guessing it greases the wheels significantly.  The irony of zero tolerance is that it's going to be selectively enforced.  It has to be.  When you can blow pretty much any behavior up to make it seem criminal, either everyone is turned into a criminal or you simply focus all your attention on kids that you had your suspicions about because of their race, family's income level, or, as in the days after Columbine, their tendency to wear black clothes and listen to weird music.

Earlier this week, Justice Thomas was also the sole dissenter in the Court's decision to uphold Section 5 of the Voting Rights Act, which makes areas with histories of racial discrimination get federal approval for any changes in the way they run elections. G.D. at PostBourgie explains the justices' ambivalence despite the 8-1 decision, and the need for Congress to update the law.

You have seriously got to be fucking kidding me. This was yesterday's editorial cartoon carried in the Oklahoman. Cartoonist Chip Bok depicts Sonia Sotomayor - the Supreme Court nominee, the first Latina woman who would have this position - as a piñata. Sometimes there are no words.

Please contact the paper here, or call them directly at (405) 475-3311.

The Oklahoma Women's Network Blog has more.

Thanks to Eryn for the link.

NY Times: A Judge's Own Story Highlights Her Mother's

What Tami Said: Sonia Sotomayor: How did she get in here? Or...The more things change; the more they stay the same

Think Progress: G. Gordon Liddy On Sotomayor: 'Let's Hope That The Key Conferences Aren't When She's Menstruating'

Feministe: Racism, Sexism and Sotomayor, in a few easy-to-read bullet points.

Post Bourgie: A word on empathy

F.R.I.D.A.: "On the Bench, With Fairness and Empathy"

Broadsheet: Sotomayor and abortion

RH Reality Check: Fair and Balanced: Weighing Sotomayor's Opinionse

Slate: Republicans won't beat Sonia Sotomayor by attacking her as too darn human.

Gender & Sexuality Law Blog: "Justice Sotomayor" - A View from Columbia Law School

What's the best thing you've read so far on Sotomayor's nomination?

Also, I know there's been a lot of non-Supreme Court news this week, too. What have you all been reading and writing?

It's been interesting to catch up to the Sotomayor coverage this morning. I really like this clip from CNN, which features Erica Gonzalez, the opinion page editor for El Diario/la Prensa, the third largest Spanish-language daily newspaper in the country. She actually manages to position Sotomayor's accomplishments in the history of Hispanic people contributing to this country in diverse ways. (It's incredibly difficult to say such complex, historicized statements on our soundbite news shows.) It also has "man on the street" interviews with folks talking about how her roots are inspiring, and of course the requisite America Dream talk from the pundits.

My personal feeling is that the American Dream stuff always gets oversimplified and overplayed when exceptional political leaders like Obama or Sotomayor get their due. It's important that we not lose sight of the fact that though our government, at the highest levels I might add, is becoming less white, male, and less historically privileged, that doesn't mean that the majority of barriers have been smashed or the majority of Americans of color given truly equal opportunities to become the next Obama or Sotomayor. Will it be easier? Probably. It's hard to aspire to be what you can't even see. But will it be easy? Absolutely not--especially with our failing public education system, health care inequities, rampant environmental racism etc. etc. None of these things are eradicated just became Sotomayor steps into her rightful place of power. Neither does her election eradicate the sexism--both institutional and social--that still prevents so many women from living the lives they want to live.

On that note, I find it interesting that a lot of the coverage I saw while surfing around this morning seems largely focused on her ethnic background with just a mention of her gender identity. Perhaps it is still easier for the mainstream media to figure out how to talk about ethnic "uplift" because it fits so nicely into the American Dream narrative than to explore the ongoing gender issues still so implicit and insidious in our daily experiences.

Today Obama announced his pick to replace Justice Souter on the Supreme Court: Sonia Sotomayor. Conservatives are already calling her a "judicial activist."

Conservatives argue Sotomayor has a "hard-left record" and believes that judges should consider experiences of women and minorities in their decision-making.

Sounds pretty awesome to me. Although the road to confirmation is likely to be rocky, I hope Sotomayor is indeed confirmed. I was also heartened to see that all of the names on Obama's short-list were women. Yes, Sotomayor's record and experience should be first and foremost when we discuss her as a possible justice, but her identity is not insignificant. I'm looking forward to returning to an era of two women on the court -- because it's pretty damn appalling that "consider(ing) the experiences of women and minorities" is not something we expect of all members of the current Court.

For more on Sotomayor's legal opinions, SCOTUSblog has a detailed rundown in four parts: I, II, III, IV.

(Again, we're at our retreat right now, so sorry for the brevity. More on Sotomayor and her record to come...)

Last night, the LA City Council approved a budget that will fund the testing of the huge backlog of untested rape kits in Los Angeles.

According to Hollywood NOW President Lindsey Horvath (who was also recently appointed to the West Hollywood City Council - congrats!), "Over the next two years, we will eradicate the backlog of untested rape kit evidence as long as the Council continues to work with LAPD on a system that holds everyone accountable."

From Human Rights Watch:

As part of the city's budget for the upcoming fiscal year, the council approved money for an additional 26 employees for the city's crime lab DNA section and for using private crime laboratories for outsourcing. The budget now goes to the mayor for signature or veto within 10 days of approval by the City Council. The city has a backlog of more than 5,000 "rape kits," as the collected evidence is called, which have not been tested to try to identify a suspect through matching DNA.

Wonderful news, but HRW points out that this funding only affects the testing of rape kits under the Los Angeles Police Department's jurisdiction." There are still 7,000 more untested rape kits in the 47 other cities in Los Angeles County and stored by the Los Angeles County Sheriff's Department.

Related: Why Do Rape Kits Sit Around Untested?
Nearly 13,000 Rape Kits Go Untested in LA County

Today our nation's highest court ruled in AT&T v. Hulteen that women who took maternity leave and were discriminated against by AT&T are shit out of luck.

Before the Pregnancy Discrimination Act was passed, when women took leave from their AT&T jobs to have a baby, those days did not count toward their pensions -- even though other types of leave, such as temporary disability, were not removed from the pension equation. So when the women went to retire, they had lower pensions than other employees who had worked there the same number of years, even those who had taken leave for other reasons.

AT&T lawyers said their pension plan was legal when the women took pregnancy leave, so they shouldn't have to recalculate their retirement benefits now. Congress did not make the Pregnancy Discrimination Act retroactive, they said, so the women should not get any extra money.

A majority of the justices agreed. "A seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA," wrote Justice David Souter, who will retire next month.

Basically seven members of the Supreme Court are saying, "You were discriminated against? You're about to retire with less money because of it? Tough."

Justices Ruth Bader Ginsburg and Stephen Breyer dissented. By making it illegal to discriminate against women on pregnancy leave, "Congress intended no continuing reduction of women's compensation, pension benefits included, attributable to their placement on pregnancy leave," said Ginsburg, the court's only woman.

Even if the Pregnancy Discrimination Act cannot be applied retroactively, lawyers for the women argue that

the decision below should still stand based on Lorance v. AT&T Technologies, in which the Court held that if a seniority system is found to be facially discriminatory, it "'can be challenged at any time,'" and the Civil Rights Act of 1991, which specifically provides for challenges to an intentionally discriminatory seniority system "when a person aggrieved is injured by the application of the seniority system."

Given that women tend to make less money during their working years and then live longer than men, they already struggle financially during retirement. And this ruling isn't going to help. According to the National Women's Law Center, which filed an amicus brief (PDF) in the case,

The most recent population surveys show that the median pension benefit for women over 65 is $8,110, compared to a $12,505 median for men in the same age range.

Much like the Court's awful ruling in Ledbetter, Congress could fix this with legislation.

The court's decision could affect thousands of women who took pregnancy leaves decades ago and now are headed toward retirement, said Christine L. Owens, executive director of the National Employment Law Project. Now, the only way women who took pregnancy leave before 1979 can make their leave time count is through the good graces of their company or through legislation by Congress, she said.

Since I've never been too optimistic about the "good graces" of companies, I think it's time to push Congress to remedy this.

Scott Lemieux has more on how this relates to the diversity of the Court.