Game Show Presidency Continues: Name That Sequel Game!

President Trump slipped into familiar territory over the past day, publicly mulling over firing his jet-setting Secretary of HHS, Tom Price. Late today, The Apprentice show star brought down the inevitable guillotine on Price. But wait … now's the time for a sequel, revolving around the former Cabinet member who just had his sanctimonious head lopped off.

Here are some choices from former game shows. Post your preference on Facebook, or suggest your own ... or send to me at mhl@illinois.edu. Deal?

Price is Right

Name that Price

Deal or No Deal

The Gong Show

High Rollers

Let’s Make a Deal

Press Your Luck

The $64,000 Question

Truth or Consequences

Are You Smarter Than a 5th Grader?

Family Feud

Is Pledging Alleging to the Flag Compulsory? (No, Here’s the Case)

Those children in the photo are American school kids in 1942. They are giving the U.S. flag the “Bellamy Salute,” named for Francis Bellamy, author of the Pledge of Allegiance.

Jehovah’s Witnesses have a religious belief in the awesome superiority of God that prohibits them from saluting any civil authority.

Their problems began in Nazi Germany, when they were arrested by the thousands for not saluting the Nazi flag or Hitler—curiously, the same type of salute as in the U.S.

Initially, the Supreme Court upheld a legal requirement for school children to salute the American flag (Minersville School District v. Gobitis). In West Virginia, lawmakers required all teachers and pupils "to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly."

In a remarkable change— just two years after the Court ruled that a salute rule was enofceable— the Court reversed itself. 

By then, many Americans equated the “Bellamy Salute” with “Heil Hitler.” Americans also grew uncomfortable with coerced patriotism. Also, the Court had new justices.

Enter Marie and Gathie Barnett, Jehovah Witness students at Slip Hill Grade School near Charleston, West Virginia. Their father instructed them not to salute the flag or recite the pledge.

The school expelled the students.

The Supreme Court ruled that the West Virginia law was an unconstitutional abridgment of free speech in West Virginia State Board of Education v. Barnette. 

The Court wrote: “Compulsory unification of opinion” was doomed to failure and was antithetical to the values set forth in the First Amendment. The Court eloquently stated: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The Supreme Court announced its ruling on Flag Day.

Will President Trump challenge this in some direct way? It’s anyone’s guess. The better question is whether Supreme Court justices would stay with the Barnette precedent or revert to the Gobitis ruling.

High Court Hypocrisy

Justice Neil Gorsuch will likely cast the pivotal vote in a case involving mandatory union dues. Mark Janus is a state employee in Illinois, and represented by a union, AFSCME. State law does not require Janus to join the union, but requires government workers who choose not to join a union to “pay their proportionate share of the costs of the collective bargaining process.” This is called “fair share,” meaning that Janus must pay for the benefits his union bargains for him.

Janus objects to paying any dues, claiming this is coerced speech. He disagrees with the political views of his union; and he does not want to pay to support these views. Under “fair share,” he doesn’t pay anything toward the union’s political campaigns. But the very act of bargaining Janus’s labor agreement is inherently political. In effect, Janus is arguing he cannot be compelled to pay dues that support his union’s so-far successful efforts to ward-off steep wage and benefit cuts proposed by Gov. Rauner.

But Janus is likely to win his high profile case before the Supreme Court. Last year, without Justice Scalia, the Court deadlocked 4-4 in a similar case. Neil Gorsuch is widely expected to break the tie, if he agrees that Janus has a First Amendment right to pay nothing for the union representation he receives.

That Neil Gorsuch will probably cast the tie-breaking vote is a matter of high hypocrisy. On Thursday, he gave a speech at the Washington Trump International Hotel. Not one to fuss over appearances that he favors conservative groups— nor does he mind filling the coffers of the President’s ritzy business down the street from the White House— Gorsuch spoke to the The Fund for American Studies, a conservative group. Only 200 guests attended the invite-only luncheon.

Another Illinois legal case puts the pending ruling in perspective. Patricia Rupcich, a cashier at a Jewel grocery store, was fired for taking a 25-pound of birdseed from the store without paying. She said she forgot to pay for it. The employer didn’t believe her. In any event, the company had negotiated an iron-clad rule with the union: any and all cases of taking merchandise without paying is a terminable offense. The union did not challenge her termination, as it could have, in an arbitration case.

But a federal appeals court ruled that the union violated its legal duty to represent Jewel employees. The court went on to speculate, “a reasonable juror could find on the record before us that had Local 881 followed its CBA‐mandated grievance procedure and proceeded to arbitration, Rupcich would have probably prevailed in getting her job back.” The ruling meant the union would either be required to pay for arbitration, or pay damages to the employee that Jewel fired for theft.

Looking at these two Illinois cases— Janus’s effort to strike down fair share union dues, and Rupcich’s ruling that requires a union to pursue grievances as a matter of law— unions in Illinois will likely have less money in dues, and certainly more expenses for arbitrations that they don’t want to pursue. And the deciding vote in the union dues cast might be cast be a justice who has blurred the line between judicial neutrality and crass politicking.

The Trump Base, Circa 1871

Our nation is discussing fundamental issues of racial equality. I offer a new perspective, the view of Rep. Luke Poland (R.-Vt.). He was a lead sponsor of the Ku Klux Klan Act of 1871. Republicans, at the time, were anti-slavery, pro-civil rights.  

Here is how Rep. Poland explained why the free labor of blacks was a threat to a large segment of poor whites in the South:

A large number of men had lived in idleness, and the fruits of idleness had ripened. The country was full of dissipated horse-racing, cock-fighting, roystering fellows, many of whom by the war had become desperate and dangerous men. The liberation of the slaves had deprived them of their means of living, and they were reduced to the desperate and disagreeable duty of earning it for themselves. That this class could, under the circumstances, tolerate equal rights, civil and political, in a negro could hardly be expected. 

To me, this sounds like the unemployed and under-employed older white males, particularly in Kentucky, West Virginia, Ohio, Michigan, Wisconsin (and other places) who have warmed to anti-immigrant appeals, and now race-baiting. Whether you agree or disagree, I welcome your views at mhl@illinois.edu.

PS: Teachers/history buffs, if you want to share a fascinating speech from the House of Representatives, click on this link:  https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=106/llcg106.db&recNum=548. You can make it more readable by clicking on the page, anywhere. To your lower-left, a file will open. Click on it-- you can enlarge the page, and the middle passage is especially rich.

Attention Fox News Viewers: Don’t Be Misled by “FAIR”

Fox News is headlining a slick report by a group with an equally slick name, FAIR (Federation for American Immigration Reform).  The group has published a report concluding that illegal immigration costs Americans $135 billion per year.

The purpose of this post is to publicize FAIR’s unfair (bigoted) views on immigration, dating back to the late 1970s. FAIR was an extreme group until recent events made it fashionable.

The following is a reading from my current course, Immigration, Employment and Public Policy. The source: Imtiaz Hussain, Arizona’s SB 1070, Copycat Bills, and Constitutional Conundrums: Costly Collisions? 6 FIU L.REV. 201 (2011):

“Translating anti-immigration sentiment into legislation has been historically significant. The most significant efforts include the 1882 Chinese Exclusion Act, and the 1924 Immigration Act, both of which targeted Asians, particularly those of Japanese descent. The present anti-immigration uproar can arguably be traced to President Lyndon B. Johnson’s Immigration Act of 1965, which replaced quotas for a preference-based system, but more pertinently, pitted supporters of “successful Euro-American culture” against the growth of non-white groups. Among the leaders of the reform movement was John Tanton, who founded the Federation of American Immigration Reform (FAIR) in 1979 and, together with Jared Taylor and Sam Francis, gave birth to the League for European-American Defense, Education and Research (LEADER).

The founders’ attitudes, opinions, and preferences were given teeth by a second generation of FAIR leaders: Kris Kobach, Michael Hethmon, Dan Stein, Rick Oltman, Donald Collins, and Garrett Hardin, among others. Kobach, for instance, was a senior FAIR counsel before being elected as the Kansas Secretary of State in 2010, ... 

Whereas FAIR’s early leaders focused reform efforts primarily against African-Americans, Jews, and Catholics, the new FAIR generation shifted its attention to Hispanics."

Fair to be F.A.I.R.?

Selected Leaders:	Target-groups	How viewed:
Kris Kobach: *Senior FAIR Counsel, but now Kansas Secretary of State *Harvard thesis advisor: Samuel P. Huntington of civilization clash fame *Department of Justice mentor: Attorney General John Ashcroft, 2001-2005 *Author of SB1070 and several other similar ordinances (in Hazelton, PA, for example)	Afro-Americans	*Taylor: “when blacks are left entirely to their own devices, Western civilization disappears” *Oltman: They are a “retrograde species of humanity”
John Tanton: *Founder of FAIR (in 1979) *Co-founder of LEADER	Catholics	*Collins: They sold the United States on immigration “in exchange for more temporal power and glory”
Jarred Taylor: *Co-founder of LEADER:	Jews	*Tanton’s mentor, John Trevor, Sr. (who co-authored the 1924 Immigration Act): spoke of a “diabolic Jewish control of America”
Sam Francis: * Co-founder of LEADER	Latinos:	*Tanton: U.S. faces a “Latin onslaught”; Latinos known for “defecating and creating garbage and looking for jobs”; they have “low educability” and a “tradition of mordida”
Dan Stein: *Current FAIR president David Collins: *FAIR leader Rick Oltman: *FAIR leader	Mexicans:	*Francis: They carry a “political bludgeon against the United States”
Michael Hethman: *General Counsel,IRLI, legal arm of FAIR *Wrote Utah’s SB1070 copycat bill	Third World:	*Hardin: They are “breeders”, “diluting what we and who we are”

Roy Moore’s Dark Vision of Homosexuality

Roy Moore was twice removed as Chief Justice of the Alabama Supreme Court because he installed the Ten Commandments at the entrance of the court building. This symbol conveyed the idea of a state-sponsored religion, in violation of the First Amendment’s prohibition against government establishing a religion.

His opinion in a 2002 custody case is the subject of this post. A mother of three children sought to terminate parental custody rights of her ex-husband, on grounds that he was whipping and slapping the children. The Alabama Supreme Court ruled that she could not have custody because she presented hearsay evidence of child abuse. Chief Justice Moore concurred, but based his ruling on the mother’s lesbian relationship. Excerpts follow (quoting):

“Alabama's courts, even beyond the context of a custody dispute, have expressed a moral revulsion to homosexual activity, reminiscent of that expressed by Sir William Blackstone in his Commentaries on the Laws of England. Earlier courts refused even to describe the activity inherent in homosexuality, stating that “[the crime against nature] is characterized as abominable, detestable, unmentionable, and too disgusting and well known to require other definition or further details or description.”

…

“ ‘If any crime, says Bacon, deserved to be punished in a more exemplary manner, this one certainly does. Other crimes may be prejudicial to society, but this one strikes at its being.”

…

“Natural law forms the basis of the common law. Natural law is the law of nature and of nature's God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures:

“The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity.”

***

I’ll let readers form their own judgments. I offer a limited legal perspective. Chief Justice Moore cited decisions from the 1700s as authority for denying this lesbian mother’s request. He did not base his ruling on the evidence, but on a 300 year-old view of human sexuality. Mr. Moore is likely the next senator from Alabama.
The ruling is here (C.J. Moore's Concurrence is about halfway down): http://caselaw.findlaw.com/al-supreme-court/1303306.html

Company Fires Laundry Workers, Calls Cops to Arrest After Firing Them

Protesting is becoming hazardous for employees. 

Janitors at a uniform cleaning company were protesting working conditions and seeking union representation.

The protest consisted of handing our pamphlets and displaying signs. There was no violence or interference with the business-- just the message that the employer paid poor wages.

The pamphleting occurred at the edge of the company’s property. When the general manager told them to move off the property, the workers complied.

Upon relocating to a strip just off the highway shoulder, they were told again to leave or the police would be called out.

Sure enough, the police showed up. No arrests were made because no crime was committed.

In arguments to the National Labor Relations Board, the company said the pamphleting could cause a car accident.
Yesterday, a three-member panel of Republican and Democratic appointees unanimously ruled that the employer violated the labor law by interfering the workers' lawful right to pamphlet.

How embarrassing for the company’s lawyer, to make such a baseless and flimsy argument.

It’s too early to say for sure, but this is a potential case for a “bargaining order.” This occurs when employers create so much of fear associating with a union that the NLRB skips the election and certifies the union as a bargaining agent.

Disclaimer: This photo is consistent with the reporting of this case, but cannot be confirmed as the actual photo of this union's protest.

Will Department of Justice Prosecute Flag-Kneelers?

Nick Infante, College Athletics Clips Editor, writes today: “I do not think it is unreasonable to foresee the big foot of the Department of Justice to insert itself more forcefully into this issue.  You heard it here first?”

I’m taking Nick’s handoff and running a few yards. 

The U.S. Code regulates the use of, and respect for, the flag. In brief, the main part of the Code that criminalized flag desecration was ruled unconstitutional in a flag-burning case, Texas v. Johnson (1989).

A key passage stated: “Under the circumstances, Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. ... Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.”

This ruling would clearly apply to flag-kneelers.

But what if President Trump wants to stoke the culture war by ordering his Attorney General to prosecute a player?

The closest section appears to be this:

§177. Conduct during hoisting, lowering or passing of flag

During the ceremony of hoisting or lowering the flag or when the flag is passing in a parade or in review, all persons present except those in uniform should face the flag and stand at attention with the right hand over the heart.

I’ve underlined two parts. “Should” can never be a predicate for a criminal offense. The essence of a criminal law is “mens rea,” meaning the intention or knowledge of wrongdoing that constitutes part of a crime.

But President Trump loves to cherry pick concepts and themes—especially when his paper-thin skin has an allergic reaction to blowback. And he loves to divide Americans. He might focus on the “stand at attention with the right hand over the heart.”

Another possibility: The Flag Code authorizes a president to issue an executive order. The Code says:

§178. Modification of rules and customs by President

Any rule or custom pertaining to the display of the flag of the United States of America, set forth herein, may be altered, modified, or repealed, or additional rules with respect thereto may be prescribed, by the Commander in Chief of the Armed Forces of the United States, whenever he deems it to be appropriate or desirable; and any such alteration or additional rule shall be set forth in a proclamation.

This is pure speculation on my part-- and hopefully, an unnecessary post. 

Two concluding points. These approaches would (1) be legally futile, and (2) advance the core message of flag-kneelers: America is plagued by racial injustice.  

The Law on Protesting at Work

This will be short and to the point. To summarize: Players have very substantial but not absolute legal protections to kneel during the national anthem

First, NFL players have no First Amendment right to take a knee. They work for a private employer. The Constitution is a limit on government. Donald Trump can’t fire kneelers.

Second, several states have the equivalent version of First Amendment rights for private sector employees. California has a broadly worded “labor code” that protects political activities and speech. It’s so broad that an employer would have difficulty firing an employee for marching with the KKK—and it certainly would offer legal protection to players on the Raiders, Chargers, Rams and 49’ers. That’s one-eighth of the league.

Colorado, Washington, and Minnesota have similar laws, adding three more teams (Broncos,  Seahawks, and Vikings) to the list of protected athletes.

Third, all NFL players are covered by a collective bargaining agreement. Players could be fined, suspended or fired for “just cause.” A key provision of just cause is whether an employer rule is “reasonable.” Let’s say, for argument, that an NFL team could make that case. The team would still be constrained.

Article 42, Section 2 says: “Section 2. Published Lists: (a) All Clubs must publish and make available to all players at the commencement of preseason training camp a complete list of the discipline that can be imposed for both designated offenses within the limits set by the maximum schedule referred to in Section 1 above and for other violations of reasonable Club rules.”

That means if a team wants to establish a no-kneeling rule, it would need to publish the rule in mid- to late-July, when training camp starts. 

How Our U.S. Government Is Creating Fake History

The U.S. Department of State has an Office of Historian. I consult this site periodically for what I hope is a factual and objective history of an event— in this case, the repeal of the Chinese Exclusion Act in 1943.

I came upon this sad and disquieting “Note to Readers.”

Milestones in the History of U.S. Foreign Relations

NOTE TO READERS

This publication, “Milestones in the History of U.S. Foreign Relations,” has been retired. The text remains online for reference purposes, but it is no longer being maintained or expanded.

Notice posted on May 9, 2017.

To verify, see https://history.state.gov/milestones.

***

Why is this bad? As materials are declassified, they provide insights into our government’s past dealings. 

As citizens and taxpayers in a democracy, we’re entitled to know our government’s telling of history.

In the Office of Historian’s, “Repeal of the Chinese Exclusion Act, 1943,” there is an informative and unflattering story of American policy:

“More controversial than repeal was the proposal to go one step further and place the Chinese on a quota basis for future entry to the United States. By finally applying the formulas created in the 1924 Immigration Act, the total annual quota for Chinese immigrants to the United States (calculated as a percentage of the total population of people of Chinese origin living in the United States in 1920) would be around 105. In light of the overall immigration to the United States, at first glance the new quota seemed insignificant. Yet, those concerned about an onslaught of Chinese (or Asian) immigration and its potential impact on American society and racial composition believed that even this small quota represented an opening wedge through which potentially thousands of Chinese could enter the United States.”

Now that the Historian is not posting new material, will the Office start to take down historical materials?

Recalling the “Fuck the Draft” Case: Our Freedom to Dissent

A 19-year-old man, Paul Cohen, was arrested, convicted and sentenced to 30 days in jail for wearing a jacket bearing the words “Fuck the Draft” inside the Los Angeles Courthouse.
He was convicted of violating a law that prohibited "maliciously and willfully disturbing the peace or quiet of any neighborhood or person [by] offensive conduct.”

By a 5-4 vote, the Supreme Court threw out his conviction, ruling that the First Amendment protected this vulgar expression.

Justice John Marshall Harlan II wrote that speech and conduct are two different matters. His core idea was that “Fuck the Draft,” while shocking to many people, did not fall into a category of cases under the “fighting words” doctrine (four justices disagreed).

Harlan stated that the issue was “whether California can excise, as ‘offensive conduct,’ one particular scurrilous epithet from the public discourse, either upon the theory...that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.”

Players who take a knee during the national anthem offend some people, as Cohen did with his jacket; but other people agree with the anthem protests. 

Looking back 45 years, it would be hard to find anyone who supports the draft, a terribly misguided policy for a pointless war that deeply disrupted or ended the lives of a generation of young Americans. Cohen’s outrage has stood the test of time; even if it didn't, his speech was protected. However we feel about anthem protests, they are protected speech in a nation where the freedom to dissent is a fundamental right.

A Wicked Ruler Politicizes Sports

What do Tim Tebow and Colin Kaepernick have in common? They both kneeled before a playing a professional football game. Tebow kneeled for deeply-held religious beliefs as a Christian; Kaepernick kneeled to protest injustice against African Americans. 

Certainly, Kaepernick’s kneeling was more controversial. Both men consciously used the huge stage of NFL football to promote their personal values.

Different as they are, the two quarterbacks might agree on this:

Proverbs 22:8 “Whoever sows injustice will reap calamity, and the rod of his fury will fail.”

Speaking of sowing injustice, President Trump is taking sides. Tebow and Kaepernick used their celebrity to speak for their causes. President Trump uses the most powerful office in the world to silence critics. 

His constant attacks, mostly personal and motivated to divide people, call to mind Psalm 94:20: “Can wicked rulers be allied with you, those who frame injustice by statute?”

September Presidential Statements: Emancipation Proclamation and “Rocket Man” Speech

This Friday (September 22^nd) marks the anniversary of President Lincoln’s Emancipation Proclamation.

As Commander-in-Chief, Lincoln specifically declared: "That on the 1st day of January, A.D. 1863, all persons held as slaves within any State or designated part of a State the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free.”

He did more. President Lincoln also proclaimed that freed slaves would work for wages. That was a remarkable statement because no slave-owner could ever imagine paying a slave. Lincoln said:

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

Now, compare the tone of President Trump’s angry and arrogant UN speech (September 19th) to this conclusion of Lincoln’s proclamation, which was offered in the midst of a war that would kill close to 700,000 soldiers: “And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.”

What Does It Mean to Be an American?

That’s the question we will explore in our immigration and employment class on Monday. 

A recent survey asked Americans about what makes us Americans. For some, being Christian is important: 30 percent of Democrats say so, 56 percent of Republicans say so, and 63 percent of Trump primary voters considered this fairly or very important. 

Another dimension is explored: civic values. 

Along these lines, click on the Chobani story (a minute-and-a-half), 
http://www.chobani.com/story (Scroll down for a brief video).

Hamdi Ulukaya founded Chobani in 2005 when he bought a closed Kraft plant and hired Kraft “yogurt masters” who had been laid off. Today, his company is worth $1.3 billion. In 2012, he opened the largest yogurt plant in the world in Twin Falls, Idaho.

Hamdi was born in Turkey and is of Kurdish ancestry. He came to America in 1994 to study English and business.

That is my conception of being an American.

What's your conception? Birth in America? Living here and being productive, regardless of legal status? Does race or ethnicity matter? If yes, why? These questions are on tap for Monday. We welcome all views. To join the discussion, share yours at mhl@illinois.edu. 

How Far Can Your Employer Push You Into a Wellness Program?

The Affordable Care Act allows your employer to incentivize your participation in a “wellness program.” Those programs include smoking cessation, weight loss, and preventive screenings.

Sounds good, and it is, but: Employers gain access to medical records in connection with these programs.

And there is this complication: Employers may offer up to 30% reduction in the employee contribution to health insurance for participation. Okay, that’s the incentive part.

But what if you don’t want to participate, especially because you don’t want your employer to access your medical information. From that perspective, wellness programs are discriminatory.

The AARP has sued to stop that part of the law that allows employers to have access to medical records. They say, with good reason, that the current regulation violates the Americans with Disabilities Act.

Where did the 30% come from? The Equal Employment Opportunity Commission (under Pres. Obama) used this number—admittedly arbitrary—to draw a line between a wellness program that offered a carrot (30%), and one that offered a punitive stick for not joining (31% and up).

It’s a tough case. The employer’s 30% incentive limit might save $240 for an employee who pays $800 a month for insurance (if it’s a family plan and a spouse enters a wellness program, the Obama regulations allow the employer to pay 60%).

On the other hand, why should employers see your medical records when it is not a matter that is work-related—e.g., smoking, weight loss or gain, and similar?

“Table: Nigga-1 Guest”: How Far We Have Fallen

You are looking at a receipt from a Texas restaurant, issued on January 1, 2015. In all, six African-Americans are suing the restaurant for intentional infliction of emotional distress, seeking $1 million.

If you think they are over-valuing their lawsuit, think again.

Consider the words of Judge Brett Kavanaugh, on Pres. Trump’s short list for the Supreme Court. In a recent race discrimination case, he joined the majority in awarding damages. He wrote separately to emphasize this point: “being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment.” 

He’s not alone. 

Federal appeals courts have consistently ruled this way: Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir.2012)  (“no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates”); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir.2004) (“It is beyond question that the use of the word “nigger” is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination”); Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir.2001) (the word “nigger” is “perhaps the most offensive and inflammatory racial slur in English, ... a word expressive of racial hatred and bigotry”); Rodgers v. Western-Southern Life Ins. Co., 312 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as “nigger” by a supervisor in the presence of his subordinates”); Bailey v. Binyon, 583 F.Supp. 923, 927 (N.D.Ill.1984) (“The use of the word ‘nigger’ automatically separates the person addressed from every non-black person; this is discrimination per se.”); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.2001) (far more than a “mere offensive utterance,” the word “nigger” is pure anathema to African–Americans”); Daso v. The Grafton School, Inc., 181 F.Supp.2d 485, 493 (D.Md.2002) (“The word ‘nigger’ is more than [a] ‘mere offensive utterance’…. No word in the English language is as odious or loaded with as terrible a history.”); City of Minneapolis v. Richardson, 239 N.W.2d 197, 203 (1976) (“We cannot regard use of the term “nigger” ... as anything but discrimination ... based on ... race.... When a racial epithet is used to refer to a [black] person ..., an adverse distinction is implied between that person and other persons not of his race. The use of the term “nigger” has no place in the civil treatment of a citizen....”).

Using this word is very costly, too. 

See $16.6 Million Verdict Against Corona Company in Racial Discrimination Lawsuit, The Press-Enterprise (June 29, 2017) (employee was called the “N” word and other racially offensive names); Kirk Mitchell, Denver Jury Awards Nearly $15 Million in Racial Discrimination Case, The Denver Post (Feb. 11, 2015) (white employees and supervisors of Matheson Trucking and Matheson Flight Extenders Inc. often used the N-word when referring to black workers); Bethany Barnes, Portland Public Schools, After Expressing ‘Respect’ for $1 Million Verdict, Appeals It, The Oregonian (Aug, 22, 2017) (two employees were relentlessly subjected to the N-word and having a noose in the workplace); Laura Bult, Sara Lee Agrees to Pay $4M to Black Employees Who Say They Were Called Racial Slurs, DAILY NEWS (Dec. 22, 2015); Chris DiMarco, Top 10 Most Expensive Discrimination Settlements of 2013, INSIDECOUNSEL MAGAZINE (July 8, 2103) (Bradley v. City Of Richmond settled for $1 million in a case brought by eight African-American pipefitters who alleged that they were subjected to racial epithets and other forms of bias); Tim Gould, Noose, ‘N-word’ Lead to $3.6M Race Discrimination Settlement, HR MORNING (Aug. 3, 2016) (New Jersey Transit settled discrimination lawsuit with seven employees who were subjected to the N-word and a put around one employee’s neck).

Volunteer Deportation Corps? Trump-Inspired College Kid Asks ICE to Deport DACA Student

On YouTube this weekend, a DACA student at a private college shared a tearful post. Paola Garcia said fellow student Taylor Ragg posted a picture of her Facebook profile, saying, “Everyone go report this illegal at my school bragging about breaking the law.” 

President John F. Kennedy created the Peace Corps, a new agency and a new opportunity for Americans to serve their country and their world. 

President Trump’s anti-immigrant zeal would be topped-off if he created the opposite: The Volunteer Deportation Corps.

Ms. Garcia posted on YouTube: “Racists are emboldened today, and he’s inciting them to harass me and report me,” referring to President Trump.

This opened the floodgates to more anti-immigrant hate.

Examples:

“Hope you enjoyed your visit. Back to them dirt floors of your homeland, stinky ass.”

Another posted a video of someone filling out a tip form for immigration authorities.

The local paper contacted Mr. Ragg via Facebook for a comment. He replied: “Lexington Herald Leader is Fake News.”

Garcia, who was brought to this country when she was 2, grew up in St. Albans, W.Va. According to his Facebook page, Ragg is from Harlan and is a former legislative intern for the U.S. Senate. He also was a campus coordinator for Students for Rand, a group that supports U.S. Sen. Rand Paul, R-Bowling Green.

Late breaking: Mr. Ragg is no longer enrolled at this college.

Thanks to Lexington-Herald Leader reporter Linda Blackford for an excellent article.

Race Against Time: How the Phony Voter Fraud Commission Echoes the Past

“Voter suppression” is a term that bounces off most of us. And why not? We’ve never seen it or really heard of it.

So, here is an example: Southern states, in the 1880s-1910s, passed “grandfather clauses” to limit or deny black voting. Here is how they worked: States defined voter eligibility as the sons or grandsons of voters who were eligible in 1866 or before.

Who couldn’t vote in 1866? Blacks. Thus, while grandfather voting laws were neutral on their face, they were 100% discriminatory. Oklahoma’s version of this law was struck down in Guinn v. United States (1915). The ruling said that the “grandfather law” violated the Fifteenth Amendment—granting blacks the right to vote (click on picture of Oklahoma lawmakers who approved this voter suppression law, circa 1908). 

The 15th Amendment specifically declared that the rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude, and that Congress shall have power to enforce this Article by appropriate legislation. 

Kris Kobach is giving the voter suppression idea new life. His phony commission met this week in New Hampshire to advance the narrative that massive voter fraud undermined the 2016 election in New Hampshire. What he is really speaking about is 5,000 voters—mostly college students— who lawfully registered to vote in New Hampshire even though they are from another state. Most are presumably liberal, some are people of color. Kobach’s commission is overwhelmingly white.

….

If Kobach wants to play this dirty game, let’s look at older white people—politely called “snow birds”— who live in places such as Illinois and have a second home in Florida. Some snow birds leave colder primary residences by November, are registered to vote in Florida, and are usually wealthy and Republican. Florida is a state that is roughly 50-50 red/blue.

These voters are not a problem for Kobach because they are white.

Major Court Win for Employees Who Breastfeed

Most of us don’t realize that “Obamacare” strengthened weak-to-nonexistent legal protections for breastfeeding employees. Abolish the ACA, and you also do away with an employers' obligation to provide times and a place for a nursing mom to breastfeed her infant or express milk.

With that backdrop in mind, there was a landmark court ruling on Thursday that reinforced these protections.

A federal appeals court—a conservative one, no less— upheld a jury verdict against the city of Tuscaloosa, Alabama for forcing a police officer to resign after failing to accommodate her need to breastfeed her baby.

Former police officer Stephanie Hicks in 2013 sued Tuscaloosa, alleging that the police department where she worked was liable for pregnancy discrimination, constructive discharge, interference with her rights under the Family Medical Leave Act and retaliation for exercising those rights.

Hicks worked as an investigator; but after taking 12 weeks for FMLA leave in connection with the birth of child, she was transferred to the patrol division. As a consequence, she was required to wear a bulletproof vest at work. She continued to work but fell into a depression.

Her doctor entered the picture, and wrote a request for alternate duty to accommodate Ms. Hicks’ breastfeeding.

The Neanderthal-chief refused the request, but offered her a larger vest. She resigned upon hearing that response.

A jury awarded Hicks $374,000, though later the court reduced the judgment to $161,000.

Tuscaloosa appealed to the 11th Circuit in 2016.

In Thursday’s opinion written by Circuit Judge Charles Wilson, the panel said breastfeeding was a legally protected medical condition that merited accommodation. 

BTW, click on the picture for more info on benefits to breastfed babies.

For more, see Hicks v. Tuscaloosa, here: http://media.ca11.uscourts.gov/opinions/pub/files/201613003.pdf.

What Uber “Hell” Means

The Wall Street Journal reports that the FBI and other law enforcement agencies are investigating whether Uber Technologies used software to interfere illegally with its competitors. 

They are looking at an alleged software program-- called internally "Uber Hell"-- that was secretly downloaded to an Uber driver’s phone app. The software allegedly could track when the driver was working for competitors such as Lyft. 

"Uber Hell" reportedly allowed Uber to see what Lyft was charging for rides and how many drivers were nearby. 

The implication is that Uber would adjust pricing in real-time to undercut Lyft.

This follows allegations in 2014 that Uber had employees order and cancel more than 5,000 rides with Lyft.

On Monday, our class will examine O’Connor v. Uber Technologies, Inc. (2015). 

In that path-breaking case, Uber drivers in California successfully argued that they deserved a trial on the issue of whether they were employees, and therefore entitled to a tip-for-service under that state’s labor code.

Uber charged riders a 20% service fee—a fee that struck many riders as an added-tip. Uber did not remit that money to drivers.

From my perch as a labor/employment law professor: When a company has a strategic vision that fundamentally builds on the idea of subverting labor/employment law, they not only risk liability in those areas—these "geniuses" don’t know when to stop cheating. (Another example is Enron, the famously fraudulent company that cheated employees' pension plans and energy markets.... and investors.)

If these allegations are true, Uber executives would appear to face criminal wire-fraud and antitrust charges. And that’s before any lawsuit from Lyft.

Recalling My Coach Hambly Prank

The good looking guy in the picture is former Illinois Volleyball Head Coach, Kevin Hambly. Recently, he left Illinois for the same job at #1 Stanford. Tomorrow, he returns “home” with his Stanford team.

So, this is a good time to share my Coach Hambly Prank story.

It begins on a Friday night, around 9:30, sometime after the season was over. I overheard my wife, Janet, talking to our kids, Ben and Sarah. By this time, they were in grad and law school at Illinois—in short, of legal drinking age.

They were talking to their Mom via text, and they mentioned that Coach Hambly came into the bar a few moments ago.

This was all idle chit-chat. Unbeknownst to them, I overheard the back-and-forth because Janet was casually relaying the conversation to me.

After waiting about ten minutes, I texted Ben and Sarah, something along these lines: “Hey, the weirdest thing happened. Mom put on make-up, dressed-up nicely, and bolted out of here. She didn’t mention where she was heading. Do guys have any clue?”

Apparently, our kids were mortified upon receiving this text. They “slammed down their beers” and settled their tab immediately, thinking that their mother was on the prowl for Coach Hambly.

Nothing could be further from the truth. Later that night, I told them all about my prank…. I don’t know if Janet was more “amused” by my stunt, or by our kids’ apparent willingness to connect my suggestive text to the implication that their Mom was seeking to rendezvous with Coach Hambly.

Welcome back, Coach! J

Paying Judges to Speak

Why would a chief justice of a state supreme court direct his court to enter into a no-bid contract worth $700,000 with a public relations firm? Following an expose in the Raleigh News & Observer, some North Carolina citizens are wondering about that. This fishy story begins with Chief Justice Mark Martin paying $17,000 to assemble a slick video and speech for his presentation to federal judges in Charleston, S.C. 

Two days before the speech, he modified this public speaking contract to add $549,500 for a year’s worth of public relations for the state court system—features such as monthly fee of $10,000 for the firm to monitor Twitter and Facebook, and another $10,000 a month for graphic design of newsletters, brochures and court websites. More work was tacked on bringing the full contract to more than $700,000.

So far, there is no suggestion of illegality or an ethics violation. There is a broader context for this odd arrangement. Justice Neil Gorsuch is scheduled to speak at a luncheon celebrating the 50th anniversary of the conservative group, The Fund for American Studies, on September 28. The venue is the Trump International Hotel in Washington. The group occasionally files friend-of-the-court briefs, a conventional way that groups and people who are not parties in litigation to make persuasive arguments to the Supreme Court. Nothing about Justice Gorsuch’s speech is illegal or unethical.

There is no information about whether Justice Gorsuch will be paid to speak. However, if he is paid a fee, there would be nothing illegal and unethical. Justice Antonin Scalia took 23 privately funded trips in 2014 alone to such places as Hawaii, Ireland, and Switzerland.

An Illinois judge will answer an ethics complaint alleging that he gave paid speeches. However that matter is resolved, the examples of Chief Justice Martin, and Supreme Court Justices Scalia and Gorsuch show that high-level judges transact business with public interest groups and vendors in the course of doing their jobs.

For all of these judges, no one has credibly alleged that their judicial opinions were the product of improper influence. For some, the matter ends there; but for others, these speeches appear to diminish the office of the court. More to this point, why do these judges appear before groups that align with their ideologies and not make themselves available to groups with opposing or different views? In that respect, these judges behave more like politicians than judges, though that line is blurring.

We are at a crossroads for defining the public role of judges. The traditional view is built on the concept of separation of powers. This explains why our constitutional framers wanted to shield federal judges from the hot-and-cold winds of politics.

If we are no longer interested in a more reserved, less political type of judge we should consider a new architecture for courts. In civil cases, instead of being seated above us in black robes to convey an aura of authority and neutrality, our judges should sit at the head of a conference table, wearing business attire. This is the norm for tens of thousands of arbitrators (private judges) in the U.S. The informality does nothing to diminish the quality of justice. If judges want to engage the public at eye-level, let’s dispense with the hypocrisy that they are superior to us and bring them closer to us in the courtroom.

Helping DACA Children: An Option

The Young Center for Immigrant Children’s Rights

6020 S University Ave Chicago, IL 60637-2704

Child Advocate Program

The Young Center provides bilingual, often bicultural Child Advocates who are appointed by the federal government to advocate for the best interests of unaccompanied immigrant children. The role of the Child Advocate is to ensure that all decisions on behalf of an immigrant child consider the child’s best interests—safety and well-being. The Advocate stands with the child at the center of the complex U.S. immigration system, accompanies the child to court, learns the child’s story, ensures the child has legal representation, and advocates for that individual child’s best interests. 

Young Center staff—attorneys and social workers experienced in immigration and child welfare law—provide best interests recommendations to immigration judges, asylum officers, deportation and removal officers, ICE trial attorneys, border patrol officers and other government officials. The best interests reports detail the issues at stake and make specific recommendations about the child’s safety and well-being whether they remain in the U.S. or return to their home country.

Population(s) Served

Children and Youth (infants - 19 years.)

Immigrants/Newcomers/Refugees

Budget

$3,281,279

(773)702-9560

http://theyoungcenter.org

Facebook: TheYoungCenter, https://www.facebook.com/TheYoungCenter/

Update for HR Professionals: What DACA Rescission Means for Employers

I will comment below. For now, I pass on the key FAQs for employment of DACA individuals. The FAQ pull-out is here: https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca. The term EAD means Employee Authorization Document—in effect, a work permit.

Q6: What happens when an individual’s DACA benefits expire over the course of the next two years? Will individuals with expired DACA be considered illegally present in the country?

A6: Current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred.  When their period of deferred action expires or is terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment.

Q14: Is there a grace period for DACA recipients with EADs that will soon expire to make appropriate plans to leave the country?

A14: As noted above, once an individual’s DACA and EAD expire—unless in the limited class of beneficiaries above who are found eligible to renew their benefits—the individual is no longer considered lawfully present in the United States and is not authorized to work.  Persons whose DACA permits will expire between September 5, 2017 and March 5, 2018 are eligible to renew their permits. No person should lose benefits under this memorandum prior to March 5, 2018 if they properly file a renewal request and associated application for employment authorization.

Q15: Can you provide a breakdown of how many DACA EADs expire in 2017, 2018, and 2019?

A15:  From August through December 2017, 201,678 individuals are set to have their DACA/EADs expire. 

Of these individuals, 55,258 already have submitted requests for renewal of DACA to USCIS. In calendar year 2018, 275,344 individuals are set to have their DACA/EADs expire. 

Of these 275,344 individuals, 7,271 have submitted requests for renewal to USCIS. 

From January through August 2019, 321,920 individuals are set to have their DACA/EADs expire. 

Of these 321,920 individuals, eight have submitted requests for renewal of DACA to USCIS.

…

Employer Sanctions

The employer sanctions provision of the Immigration Reform and Control Act of 1986 prohibits employers from hiring, recruiting, or referring for a fee aliens known to be unauthorized to work in the United States. Violators of the law are subject to a series of civil fines for violations or criminal penalties when there is a pattern or practice of violations.

… [END FAQ]

In my 2015 article in Georgetown Immigration Law Journal, I explored sanctions against employers who violate work authorization requirements. From approximately 2000-2013 [Bush and Obama years], the average sanction for employers and aliens was a civil fine of $500-$1,000. Criminal sanctions were only applied to individuals who coordinated evasion of the law—e.g., people who forged and sold documents.

The law affords, however, a criminal sanction. Would the Trump administration seek a prison term for an employer who does not comply with the law? My educated guess is yes, subject to defining "pattern" (guessing two violations).

I leave on this note. The lawyers who serve as anti-immigration architects have long devised “self- deportation” laws. 

The current situation shows how this could work out. A 25-year-old nurse who has a valid EAD that is due to expire next October might start to look for a safe haven right now—the point is that the nurse will explore self-deportation options.

An interesting question is whether some nations will treat our dreamers as candidates for asylum—in other, victims of inhumane political or ethnic prejudice. It’s a matter of perspective. But it’s plausible, in my judgment.

Conservative Think Tank Opposes Trump’s DACA Removal

The most interesting response to today’s DACA phase-out is not from liberal groups—it’s from conservative groups, such as the libertarian think-tank, Cato Institute.

The organization estimates that terminating DACA and immediately deporting those enrolled in the program would cost the federal government $60 billion, and would reduce economic growth by $280 billion in the next 10 years.

Their reasoning: “The deportation of DACA participants would cost the American economy billions of dollars, as well as billions of tax dollars foregone while doing little to address the true concerns that Americans may have about unauthorized immigrants.”

The talk we are hearing today from the administration that nothing dire will happen to DACA children and young adults is belied by this analysis by Cato (quoting below from https://www.cato.org/blog/what-will-happen-trump-kills-daca-timeline-expiration):

DACA has three different aspects—deprioritization for removal, “deferred action,” and employment authorization. First, the DACA memo tells agents to prevent Dreamers who may be eligible for DACA “from being placed into removal proceedings or removed from the United States.” This provision deprioritizes their removal. Under new expansive enforcement priorities laid out in a February 20th memo from then-Department of Homeland Security (DHS) Secretary John Kelly, many DACA recipients would be targets for removal if Kelly’s successor rescinds the DACA memo. That’s because the Kelly memo creates “priorities” so expansive that they include nearly all unauthorized immigrants, while specifically rescinding all “conflicting” memos except for the DACA memo and the memo that expanded DACA and provided for the never-implemented DAPA program.

Hypocrisy on Trial

When Justice Robert Steigmann appears before the Illinois Judicial Inquiry Board for a disciplinary hearing, the full-blown hypocrisy of our state’s court system will be on trial.

Hypocrisy #1: The State of Illinois cares very little about judicial ethics. A 2014 audit of this board was highly critical of the state’s neglect. The Board had four vacancies for its fourteen-member complement. The Board had a backlog 311 complaints filed by citizens and lawyers, some alleging mental incapacity of judicial officers. Today, the Board has nine members—and operates with three vacancies. One vacancy is for a public member; one is for a lawyer, and one is for a judge. The only explanation for these vacancies is neglect.

Hypocrisy #2: The only judge on the current Board, who also serves as the Vice Chair, is Paula Gomora. Judge Gomora was appointed to fill a vacancy in 2001 but failed to retain her seat in the 2002 election. Sitting judges in Illinois almost never lose retention elections. She spent the next six years off the bench and won a seat in 2008. Could the Illinois Supreme Court not find a judge with a better track record to preside over its only check on its ethics rules? And why is there a judicial vacancy?

Hypocrisy #3: Justice Steigmann is accused of accepting more than $20,000 in speaker fees by using the court’s office to solicit paid speeches. The complaint also alleges that Justice Steigmann made himself available only to police agencies—but not defendant groups—and to health care providers, but not to groups that sue hospitals and doctors.  

Compare that to the fact that the current Chief Justice, Lloyd Karmeier, a Republican with strong backing from big business, and his Democratic opponent spent $9.3 million on a supreme court seat. Justice Thomas Kilbride, a Democrat, received more than $2 million from the state Democratic Party and labor unions. These campaign donations are perfectly legal and do not raise issues under our state’s judicial ethics rules. But many Illinois citizens wouldn’t see much difference in Justice Steigmann’s alleged misconduct and the norm in this state that candidates for Supreme Court receive millions of dollars with the purpose to influence how these judges rule on important cases.

Hypocrisy #4: Most states model their rules after the American Bar Association’s suggested code. One rule, titled “Promoting Confidence in the Judiciary,” says: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety (emphasis added).”

Now look at the milder version we have in Illinois, which avoids “shall” and replaces it with “should.” Our version states: “A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (emphasis added).”

What curious wording we have for Illinois judges. Our judges “should” comply with the law. For the rest of us, we can never argue in a judge’s court that we “should” obey the law, but we aren’t required to. As to us, laws are mandatory.

Unless and until our state judicial code adopts the rules that apply to almost every other state, we will have a court system that is prone to abuse. Even if only a handful of judges misbehaves, the damage to the integrity of our courts is too large to ignore.