Category Archives: NYC

8th Annual Equality Conversation at CUNY School of Law: Beyond Digital Divides

The Annual Equality Conversations at CUNY School of Law typically pair a CUNY Distinguished Professor with a Professor of Law for an interdisciplinary discussion of a topic relevant to the “Liberty, Equality, and Due Process” (LEDP)  with an audience of all 1L students in the required LEDP course, faculty members, and guests.

The topic for this year’s conversation is Technology and Education

cathy-n-davidsondsc_0003It features Distinguished Professor Cathy Davidson, Director of CUNY Futures Initiative (pictured left)

and Professor of Law Natalie Gomez-Velez, Director of CUNY Law’s Center for Latino/Latino Rights and Equality (pictured right).

If you are not a member of the law school community and are interested in attending, please contact Professor Ruthann Robson.

Past conversations have been published and include:

A Discussion of Poverty, Class, and Economic Justice Between Frances Fox Piven and Stephen Loffredo, 11 N.Y. City L. Rev. 1 (2007).
A Conversation on Health and Law, with Janet Calvo & Dr. Nicholas Freudenberg, 12 N.Y. City L. Rev. 63 (2008).
Translating Equality: Language, Law And Poetry, A conversation with Kimiko Hahn and Jenny Rivera, 13 N.Y. City L. Rev. 233 (2010).
Work, Work, and More Work: Whose Economic Rights A Conversation Between Stanley Aronowitz and Shirley Lung, 16 CUNY Law Review 391 (2013).

Constitutional Challenge to New York’s Loitering for Prostitution Law

Is New York’s Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], unconstitutional?  An important new complaint filed in the federal court by The Legal Aid Society in D.H. v. City of New York argues that the statute, facially and as applied, is unconstitutionally vague under the Due Process Clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

John Singer Sargent, Street in Venice, 1882, oil on wood

John Singer Sargent, Street in Venice, 1882, oil on wood

Essentially, the complaint alleges that the statute does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association.  Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them.  One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise flawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs officers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear.    In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, officers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54].  The “black pea coat” as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant “wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes.”

The unconstitutional inequality in the application of NY Penal Code section, §240.37[2] is analogous to the equal protection problems in New York City’s practice of stop and frisk.  Recall that a federal judge found NYC’s practices violated equal protection in her opinion in Floyd v. City of New York, later stayed – – – and thereafter clarified – – – by the Second Circuit, followed by the City’s new administration agreeing with the decision and abandoning the appeals.  One of the complaint’s pendent state law claims is a violation of the city’s own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor’s veto).

Loitering statutes in general, and more specifically loitering (and even soliciting) for “criminal sex” statutes, whether that sex is criminalized because it is commercial, public, or “unnatural” (as in previous sodomy prohibitions), have always been constitutionally problematic.  And the use of dress or appearance to establish “probable cause” or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.

[cross-posted at Constitutional Law Professors Blog]

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 . . . .

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]

Zephyr Teachout’s Book: Corruption

New Yorkers know that Zephyr Teachout is challenging incumbent Andrew Cuomo for Governor in the primary next week.

corruptionThat challenge is linked to her book – – – entitled simply Corruption – – – just published by Harvard University Press.

Here’s a bit from the publisher’s description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Interestingly the New York Times did not endorse Teachout because her focus on corruption made her too narrow, but it did not endorse Cuomo, seemingly because his focus on corruption was not sufficient.  Teachout’s running mate, also a law professor, did garner the NYT endorsement.  (more, with links, here).


Practice of Oral Suction Circumcision (MBP) and Religious Free Exercise

The United States Court of Appeals for the Second Circuit has ruled on a NYC Regulation requiring disclosure to parents about the possible adverse health consequences of “oral suction” circumcision.

Reversing the district judge’s decision rendered more than 18 months ago, the Second Circuit’s opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment’s Free Exercise Clause.

The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for “oral suction” circumcision.   The unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law.

The opening of the court’s opinion gives a good preview of the court’s perspective:

In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).

Relying on  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the

Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.

Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is “simpler to address” than was true in Lukumi “in light of the Department’s own admission that metzitzah b’peh ‘prompted’ § 181.21 and that metzitzah b’peh is ‘the only presently known conduct’ covered by the Regulation.”

The court notes that “the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims.”

The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.

The court remanded, but denied the request for a stay of the enforcement of the regulation.  The district judge’s original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.

Constitutional Challenges in Raising the Minimum Wage

Even if NYC is successful in paving the way for a law raising the minimum wage, the legal road can turn rocky.

800px-History_of_US_federal_minimum_wage_increases.svgSeattle’s much-heralded raise of the minimum wage to $15 earlier this month has already been challenged.  In a lawsuit by the International Franchise Association, Inc. – – – represented by well-known conservative attorney Paul Clement, there are a raft of challenges including protectionism of local companies (a violation of the “dormant” commerce clause), treating franchised companies “unequally,” and even a First Amendment claim.   I’ve discussed the complaint in more detail on the Constitutional Law Professors Blog here.

Challenges to local minimum wage laws are nothing new.  As an excellent discussion by Steven Levine from CUNY’s La Guardia and Wagner Archives reminds us, in 1964 “Mayor Robert F. Wagner prioritized increasing the minimum wage from $1.25 to $1.50” as part of the war on poverty.  Wagner’s success, however, was short-lived.  The New York Court of Appeals (our state’s highest court) concluded that NYC  “Local Law 1964, No. 45, fixing higher minimum wage rate than State Minimum Wage Act, was unconstitutional.”   The case – – –Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 15 N.Y.2d 604, 203 N.E.2d 652 (1964) – – – affirms the lower courts without even writing an opinion.  There is no dissent and it’s apparently so settled that there is no need for any explanation.

Spinner in a Cotton Mill, New England, by Lewis Hine, 1910

But the Seattle lawsuit is not simply concerned with city-state relations.  Instead, most of the claims of the complaint would apply to a similar scheme passed by a state and many would apply even if passed by the federal government. It shouldn’t be surprising that corporations have objections to paying workers what has been called a “living wage.”   Again, this is nothing new.  There’s more about these constitutional issues in the last chapter of my latest book, Dressing Constitutionally, considering slavery, child labor, the garment industry, and contemporary sweatshops.

Dressing Constitutionally CUNY Podcast

Listen to a conversation with CUNY’s Margaret Ramirez on “Book Beat.

Our Clothing, and Hair, in the Courts

February 10, 2014 | Book Beat

From Colonial collars and Quaker hats to miniskirts and Muslim headscarves, our clothing — and hair — often have become issues for U.S. courts, says CUNY Law School professor Ruthann Robson. In her new book, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, Robson examines nudity cases, saggy pants in schools and recent battles of transgender teens dressing for the prom.