August Anxieties: The New Teaching Year Approaches; Is That Article Finished Yet?

For academics in the Northern Hemisphere, August is a fulcrum.

nypl.digitalcollections.510d47e2-d1df-a3d9-e040-e00a18064a99.001.wIt’s depressing: Our summer scholarship project(s) may still be incomplete, the deadlines seeming to be rebukes rather than reasonable timetables.  Or if we have finished, the end product is somehow not quite as spectacular as we had envisioned in June.

But it is also exciting!  New classes and new students and new notebooks (or at least new laptop files).  Yet this also brings its own distress, not only because of unfinished scholarship but because of the demands of teaching, not to mention committee, governance, and other administrative work that faculty members do.

One way to address the annual August anxieties is to reject the idea of a stark separation between “summer” and the “academic year,” and look for synergies between scholarship and teaching that enliven both.  I’ve tried to do this in an essay, Enhancing Reciprocal Synergies Between Teaching and Scholarship, published in the Journal of Legal Education last year and available on CUNY Academic Works, as well as available – – – for now – – – on the once-open source ssrn.  The article discusses the types of synergies that exist between teaching and scholarship for the legal academic  – – – the professional, methodological, theoretical and doctrinal – – – which are easily adaptable to other academics.  As is the overall suggestion that we should try to “pay attention” to the synergies between teaching and scholarship rather than viewing them as discrete, or even conflicting.

The article closes with a discussion of three “habits” of paying attention aimed at enhancing the reciprocal synergies between teaching and scholarship:  letting the subconscious work, commemorating one’s thoughts & ideas, and engaging in “daily practice” – or not.

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Is the issue of sex-segregated facilities in schools headed to the United States Supreme Court?

Short answer: Probably sooner rather than later.

lossy-page1-480px-thumbnail.tifA Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit’s opinion in G.G. v. Glouster County School Board.  In G.G., a divided panel, reversing the senior district judge, concluded that Title IX’s ban on sex discrimination,  20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity. (The senior district judge had not reached the Equal Protection claim, so it was not before the Fourth Circuit.)  In construing Title IX, the Fourth Circuit relied upon a January 7, 2015 opinion letter from the United States Department of Education, Office for Civil Rights, with a similar conclusion.  The Fourth Circuit accorded deference to the agency interpretation of Title IX because the relevant regulation was ambiguous – – – perhaps not in the plain meaning, but in its application.

Meanwhile, thirteen states have filed a complaint and application for preliminary injunction in Texas, based on the same letter.  The central challenge is failure to conform with the Administrative Procedure Act, including notice and comment for rule-making.  However, the complaint also alleges that the federal government defendants “violated the Spending Clause” by engaging in “unconstitutional coercion” by “economic dragooning,” relying in part on the famous  “Obamacare” case, NFIB v. Sebelius in which the Court upheld most the ACA, but found constitutional issues with the medicaid expansion funding.

More legal discussion over at Constitutional Law Professors Blog here.

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Unsexing Birth Certificates

The controversial “bathroom statute” in North Carolina, HB2, regulates the proper use of sex-segregated facilities as consistent with one’s “biological sex,” defined as the “physical condition of being male or female, which is stated on a person’s birth certificate.”

birth certificateThat the legal grounding of sex-determination should be one’s birth certificate is both predictable and shockingly naïve.  It also begs the questions of why birth certificates and other government documents designate M(ale) or F(emale).  Haven’t we moved beyond that?  Shouldn’t we?

In Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents, a forthcoming article in Harvard Journal of Law and Gender, author Anna James (AJ) Neuman Wipfler explores the many issues surrounding sex designations on identity documents, in global and local contexts, highlighting the particularities of birth certificates.  It’s such a sophisticated, nuanced, and informative article that I have difficulty believing its own birth was as a student paper for a Sexuality and Law course  – – – full disclosure! – – – that I regularly teach at City University of New York (CUNY) School of Law.  {NOTE: It’s being offered again this Fall at the Law School and nonlaw students are eligible to enroll!}

Wipfler ultimately argues that the elimination of sex designations should be the goal, but recognizes that several types of “identity crises” merit attention before wholesale abandonment of sex designations.

You can read more about the article on The Institute for Feminist Studies blog here – – –

Wipfler ultimately contends that “as long as the state records gender identity, it will also police its boundaries,” even as there are “still too many dangers to remove gender markers from all identity documents in the United States all at once.”  Birth certificates are not only a strategic starting point, but their legal importance is demonstrated by laws such as the North Carolina one which would have many of us, especially those who appear gender-non-conforming, carry our official birth certificate whenever we might have to use the toilet.

No Damages for (Unconstitutionally) Disciplining Prisoner Speech

Maybe you’ve heard of Daniel McGowan?  He’s  well known as an environmental activist who lives in Brooklyn and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front.  

220px-IATF_posterHe went to federal prison for arson in connection with his “activities,” but gained transfer to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges.  While at RCC in April 2013, McGowan published an article on Huffington Post entitled “Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech.”

Interestingly enough, the publication of this article about being disciplined for political speech caused McGowan to be disciplined.  The RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons – – – in solitary confinement –  – – for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”

If that “byline regulation” sounds as if it might be a violation of the First Amendment, it is.  It was challenged and a federal district judge in Colorado in 2007 ruled that it was.  The Bureau of Prisons (BOP) did not appeal, and in fact the BOP instructed staff not to enforce it.  In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.

McGowan was lucky; he had lawyers who  soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.

But McGowan sued the RCC personnel for a violation of the First Amendment.  The Second Circuit Court of Appeals, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity.  Qualified immunity protects the government from liability for violation of a constitutional right unless that right was “clearly established” at the time of the violation.  Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:

We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).

In short, the ” only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding.”  The court also rejected claims sounding in tort regarding the BOP’s failure to follow its own regulations.

So McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.

If a tree falls . . . .

Muhammad Ali at the Supreme Court

muhammad Ali

Bust photographic portrait of Muhammad Ali in 1967. World Journal Tribune photo by Ira Rosenberg

With the reported death of Muhammad Ali, f/k/a Cassius Clay, a look back at Clay v. United States (1971) seems appropriate.  In Clay, the Court reversed Ali’s conviction for “willful refusal to submit to induction into the armed forces.”

The Department of Justice had asserted that Ali’s claim for conscientious objector status did not meet the “religious” requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970).  The Department of Justice had stated:

‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant’s claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’

more here

New York Federal Judge Decides Transgender Identity Gets Heightened Protection

The context is an arrest during the 2011 Occupy Wall Street protests on Brooklyn Bridge and an allegation that there was differential treatment of a transgendered protester And while the complaint raised several constitutional claims,  United States District Judge Jed Rakoff has allowed the Equal Protection Clause claim to proceed in his opinion  in Adkins v. City of New York.


Interestingly, the judge based his opinion on the Second Circuit’s 2012 decision in United States v. Windsor   which of course was affirmed on other grounds by the United States Supreme Court.  Judge Rakoff wrote

[The Second Circuit in] Windsor held that gay people were a quasi-suspect class on the basis of four factors: gay people have suffered a history of persecution; sexual orientation has no relation to ability to contribute to society; gay people are a discernible group; and gay people remain politically weakened. While transgender people and gay people are not identical, they are similarly situated with respect to each of Windsor’s four factors.

Judge Rakoff then applied each of the factors (derived from the famous Carolene Products’ footnote four) to hold that transgender people are a quasi-suspect class.  Indeed, Judge Rakoff decided that in each of the factors, transgender people more easily meet the factor than “gay people” did at the time of the Second Circuit’s decision in Windsor.  For example, on the political weakness factor, Judge Rakoff reasoned:

Fourth, transgender people are a politically powerless minority. “The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Particularly in comparison to gay people at the time of Windsor, transgender people lack the political strength to protect themselves. For example, transgender people cannot serve openly in the military, see Department of Defense Instruction 6130.03 at 48 (incorporating changes as of September 13, 2011), as gay people could when Windsor was decided. See Don’t Ask, Don’t Tell Repeal Act of 2010, Pub.L. No. 111–321, 124 Stat. 3515. Moreover, like gay people, it is difficult to assess the degree of underrepresentation of transgender people in positions of authority without knowing their number relative to the cisgender population. However, in at least one way this underrepresentation inquiry is easier with respect to transgender people: for, although there are and were gay members of the United States Congress (since Windsor, in both houses), as well as gay federal judges, there is no indication that there have ever been any transgender members of the United States Congress or the federal judiciary.

In applying intermediate scrutiny, the judge rejected the government’s argument that there was an important safety interest by concluding that there were no actual safety concerns according to the allegations of the complaint (taken as true in the procedural posture of the motion to dismiss).  Judge Rakoff continued:

Moreover, defendants cannot argue their actions were substantially related to ensuring plaintiff’s safety when they removed him from an allegedly safe place and caused him injury, albeit minimal injury, by handcuffing him to a wall next to the sole bathroom in the precinct.

The judge found that the individual defendants were entitled to qualified immunity, especially given that the Second Circuit’s decision in Windsor occurred after the October 2011 Occupy Wall Street protest.  However, the judge found that the City of New York could be held liable under a specific pattern on conduct in the unequal treatment of transgender persons.

Thus, the case moves to settlement as so many of the Occupy arrest cases have done – – – unless New York City chooses to appeal the decision that transgendered individuals merit intermediate scrutiny under the Fourteenth Amendment’s Equal Protection Clause.

[adapted from Constitutional Law Professors Blog]

It’s Bill of Rights Day: Why Isn’t it a paid holiday? And what are we celebrating?

Bill_of_Rights_Pg1of1_AC“Forgive yourself if you haven’t made any special plans for Bill of Rights Day again this year. It’s not a federal holiday after all. Indeed, Congress has made sure that any recognition of Bill of Rights Day would not create a bona fide holiday (really, who needs another day off?) and would not require any funds be spent commemorating the first ten amendments to the United States Constitution.”

More from my column on Bill of Rights Day (who started it and why?)  – – – and the Bill of Rights (was it really about rights? was the first amendment first because it was most important? ) – – –  is here.

And then there’s that nasty omission of equality, although President Obama incorporated it in his proclamation this year.


Sexual Conversion Therapy at the UN and in the US


                                                           Hieronymus Bosch

Sexual conversion therapy, also known as reparative therapy or sexual orientation change efforts (“SOCE”) seek to “convert” a patient’s sexual orientation from homosexual to heterosexual (never the reverse). The goal of this “therapy” is to “cure” homosexuality.

The National Center for Lesbian Rights (NCLR) has recently been spearheading efforts to have the United Nations Committee Against Torture consider whether sexual conversion therapy in the US constitutes torture as defined by the Convention Against Torture (CAT).

Meanwhile, in the United States, two states have prohibited the practices – – – at least when provided by licensed therapists on patients who are minors.  The statutes of both California and New Jersey were challenged as infringing on therapists’ First Amendment rights of free speech. Federal appellate courts upheld both statutes, but on very different theories.  Here’s my discussion of the cases for the American Psychological Society.


Same-Sex Marriage May Be On Its Way to the Supreme Court

The Sixth Circuit’s opinion today in DeBoer v. Snyder upheld the constitutionality of several same-sex marriage bans, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee.  This bucks the trend in which circuit courts have declared such bans unconstitutional: the Seventh Circuit in  Bogan v. Baskin and  Walker v. Wolf,  decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin; the Tenth Circuit in Herbert v. Kitchen, an opinion issued in June regarding Utah’s prohibition and Smith v. Bishop, extending Herbert’s reasoning to the ban in Oklahoma; and the Fourth Circuit in Bostic v. Rainey regarding Virginia’s ban.

800px-United_states_supreme_court_buildingAnd – – – more importantly – – – it creates a “circuit split” making the possibility that the United States Supreme Court will accept discretionary review much more likely.

The Sixth Circuit’s opinion is a divided one by a three-judge panel. The majority’s basic theme is judicial restraint: judges, especially federal judges, should not be deciding the issue. The dissenting judge begins her opinion with a scathing assessment of the scholarly quality of the majority’s opinion:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.

Legal analysis and a link to the full text of the opinion is available in my post on the Constitutional Law Professors blog here

Scottish Independence, Empire, and National Dress

While the Act of Settlement of 1701 is touted as a “resolution” of the relationship between Scotland and England that is again at issue with the Scottish independence vote,  legal regulation of clothes tells a different story.

Allan_M'Aulay,_Horace_Vernet,_1823The relationship between England and Scotland was long mediated through laws passed by the English to regulate appearance.   Unlike England’s regulations of the Irish – – – which focused on  mustaches, hairstyles, and mantles – – –  the target of the Scottish attire regulations was tartan and plaid.   Even after the 1688 deposing of the controversial and Catholic King James (known as James II as King of England and Ireland, and as James VII as King of Scotland), there were continuing battles and royal contestations.

In 1746, after another Jacobite “uprising” in the north, Parliament under King George II passed an “An Act for the more effectually disarming the Highlands in Scotland; and for the more effectually securing the Peace of the said Highlands ; and for restraining the Use of the Highland Dress; and for further indemnifying such Persons as have acted in Defence of His Majesty’s Person and Government, during the unnatural Rebellion.”[i] While much of the Act concerns firearms, including permissible search and seizure processes, section 17 prohibits Scottish dress:

no man or boy, within that part of Great Briton called Scotland, other than shall be employed as officers and soldiers in his Majesty’s forces, shall on any pretence whatsoever, wear or put on the clothes commonly called Highland Clothes (that is to say) the plaid, philibeg, or little kilt, trowse, shoulder belts, or any part whatsoever of what peculiarly belongs to the highland garb; and that no tartan, or partly-coloured plaid or stuff shall be used for great coats, or for upper coats.

By its terms, the provision only applies to males, but it is otherwise quite different from the “acts of apparel” of two centuries before. The punishment to be imposed reflects the severity of the infraction as a crime of “unnatural Rebellion” as well as the status of “Great Briton” as an empire: a first offense is imprisonment without bail for six months; a second offense would render a person “liable to be transported to any of his Majesty’s plantations beyond the seas, there to remain for a space of seven years.”

And so the colonies were “settled” by a plaid-wearing people.

Excerpted from Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our hairstyles to Our Shoes

Quotes from Statute: Act of Proscription, 19 Geo. II, ch. 39 (1746) in The statutes at large, from Magna Charta, to the end of the last Parliament, 1761 in eight volumes, (Owen Ruffhead,ed.) (London : printed by Mark Baskett, and by the assigns of Robert Baskett; and by Henry Woodfall and William Strahan, 1768-70), Vol. 6: 704-710.

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