Deporting Hispanics Born in the U.S. Echoes the (Anti-Chinese) Geary Act of 1892

The U.S. government is requiring a growing number of Hispanics along the Texas-Mexico border with U.S. birth records to provide other proof that they were born in the U.S. Some citizens are being denied passports; others are being held in detention centers; and others have been forced into deportation proceedings.

The situation is a reminder of the 1892 Geary Act, a law that expanded the Chinese Exclusion Act of 1882.

The Geary Act required Chinese laborers who resided in the U.S. to apply for a “certificate of residence.” The law shifted the burden of proof to the Chinese resident—and also required proof by two white witnesses. These white Americans would need to testify under oath in order for a certificate to issue.

Without a certificate, any person of Chinese descent was subject to deportation.

In Fong Yue Ting, a “Chinaman” (using the Supreme Court’s biased language) could not find a white person to testify under oath that he resided and worked in New York, though he produced American citizens born of Chinese parents to provide this affirmation. President Harrison's administration—like President Trump's— refused to take the word of a nonwhite person.

By a 6-3 vote, the Supreme Court ruled that the Geary Act was constitutional. Fong Yue Ting was deported. Justice Field issued a stinging dissent—one that fits today:

“I utterly dissent from, and reject, the doctrine expressed in the opinion of the majority, that ‘congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country by executive officers, without judicial trial or examination, just as it might have authorized such officers absolutely to prevent his entrance into the country.’

An arrest in that way, for that purpose, would not be a reasonable seizure of the person, within the meaning of the fourth article of the amendments of the constitution. It would be brutal and oppressive. The existence of the power thus stated is only consistent with the admission that the government is one of unlimited and despotic power, so far as aliens domiciled in the country are concerned.

According to this theory, congress might have ordered executive officers to take the Chinese laborers to the ocean, and put them into a boat, and set them adrift, or to take them to the borders of Mexico, and turn them loose there, and in both cases without any means of support.

Indeed, it might have sanctioned towards these laborers the most shocking brutality conceivable. I utterly repudiate all such notions, and reply that brutality, inhumanity, and cruelty cannot be made elements in any procedure for the enforcement of the laws of the United States.”

In 1903, the Supreme Court abrogated Fong Yue Ting, stating that deportation proceedings for aliens within the U.S. must conform to due process. Apparently, Trump administration officials do not know—or are willfully ignoring— Yamataya v. Fisher, 189 U.S. 86 (1903).

Is a Blanket Rule Barring Secret Workplace Recordings Okay?

McGuireWoods LLP has published a legal memo to employment lawyers on this question. The memo points out that state and local laws regulate recordings of private conversations. Some states permit secret recording of conversations where at least one party to the conversation is aware of the recording (single-party consent).

A workplace example? Employee has a local union rep agree to the recording, and the employee records harassing statements of a non-consenting supervisor.

Other states require every party to the conversation to give permission to be recorded (all-party consent).

The law firm recommends the website of Reporters Committee for Freedom of the Press to check out the law in all 50 states. See https://www.rcfp.org/reporters-recording-guide.

Under the Obama NLRB, employers who had blanket no-recording laws violated the National Labor Relations Act. The Obama Board allowed, for example, recordings or photos taken by employees to document unsafe workplace equipment or hazardous working conditions.

The Trump labor board reversed that policy. Blanket no-recording rules are permissible.

ProfLERoy Observation: The McGuireWoods memo omits some important considerations.

Take whistleblowers. For context, suppose a tax preparer or accountant is ordered by her boss to make an illegal ledger entry or hide income. That employee is subject to criminal liability for following an order. Granted, state law may prohibit the recording— but can that law be used to prosecute someone who is attempting to comply with the tax code and protect herself as a whistleblower? Many contexts fit this— boss tells employee not to verify employment status for immigration law, boss tells employee to sign off on jet engine maintenance when work is incomplete, boss tells employee to shut off air vent monitoring device in coal mine, etc.

And what about situations where a co-worker or supervisor sexually harasses or assaults an employee? Will the no-recording rule shield predatory behavior?

Or, what about use of recording devices on our phones to capture shootings, lesser assaults, violent threats, and similar? How far can an employer go in justifying a blanket rule?

My sense of the matter? Any blanket rule is asking for trouble. In contrast, a broad rule that has narrow and reasonable exceptions is worth considering, such as recordings in furtherance of public safety and prevention or mitigation of serious injury.

PhotoCredit: KeepCalm Studio.

Please, Please, Please Let Us Discriminate Against Transgender Employees! Please?

That is the import of an appeal made by Republican officials from 16 states. On Tuesday they urged the Supreme Court during the upcoming term to rule that Title VII does not prohibit transgender discrimination. Title VII is the main federal employment discrimination law (others are ADA, USERRA [servicemembers], and ADEA [age]).

The petition grows out a ruling by a three-judge panel of the 6th U.S. Circuit Court of Appeals—a court that leans conservative, by the way. That decision ruled that a funeral home violated Title VII by firing funeral director Aimee Stephens when she told the home’s owner that she planned to transition from male to female.

The 13 attorneys general and three governors, led by the office of Nebraska Attorney General Douglas Peterson, said in an amicus brief that Congress did not intend for the protections against sex discrimination in the workplace to extend to gender identity when it passed Title VII of the Civil Rights Act in 1964.

Well, that is literally true but quite misleading.

As a matter of fact, the congressman (Howard Smith, Virginia Dixiecrat) who proposed that Title VII should be broadened to include sex discrimination—it had only proposed race, color, religious and national origin discrimination— was an ardent segregationist.

He thought that by broadening the protections against race and color discrimination, the bill would lose support—and Jim Crow would live for another day.

He miscalculated.

The point in mentioning this sorry history is that Congress never intended to outlaw sexual harassment. But courts have long since gotten past that discussion—they have ruled over and over again that discrimination “because of sex” includes discrimination because of sexual harassment.

By that logic, the Sixth Circuit reasoned that the only reason that Aimee Stephens lost her job was gender bias, i.e., “because of sex.”

Important to note, these GOP politicians are not speaking for America’s leading businesses. A quick and random check of LER employers proves this point. GE is one many examples. In a publicly available website, it states:

Gay, Lesbian, Bisexual, Transgender & Ally Alliance (GLBTA)

The GLBTA is focused on creating a more inclusive environment for all employees at GE, and promoting the company’s commitment to developing GLBT talent around the world. GLBT employees and their allies connect through regional and global events to discuss and raise awareness about GLBT issues and engage GE’s senior leadership.

See here: https://www.ge.com/careers/culture/diversity/gay-lesbian-bisexual-transgender-ally-alliance

So, given that this is an employment law case— another way of saying, it’s a business-type case— and given that American employers support transgender employees, what is the motivation for this appeal to the Supreme Court?

That is a question for you to consider.

KITTY CAT UPDATE: 

If you work in Michigan, Kentucky, or Tennessee, this “Kitty Cat” case applies to you. The case name is Equal Employment Opportunity Commission v. RG & GR Harris Funeral Homes Inc. The decision is found here: https://scholar.google.com/scholar_case?case=11341739590762191378&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

Trump’s Plan to Make Google News Search “Illegal” Is … Illegal. So Says a 9-0 Supreme Court

President Trump has tweeted this morning that Google news searches are possibly “illegal” because they are “RIGGED” (caps in original tweet) so that almost all stories about him are “bad.”

This brief post is to assure you that the president—and his advisors, who are looking into regulating Google searches— have no chance of succeeding.

The case on point is Reno v. American Civil Liberties Union (1997).

In 1996, Congress passed the Communications Decency Act. They sought to regulate online pornography. Specifically, the law sought to criminalize any party that “knowingly” sent anyone under 18 years of age content that displayed “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”

Every federal judge who ruled on the case found the law unconstitutional.

Justice John Paul Stevens wrote for a 9-0 Supreme Court that struck down the law. He said: “It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults.”

That law addressed an understandable interest in shielding minors from graphic sexual content online. And the law was so completely overruled by federal judges that Congress could only claim to have scored a small point for trying to make the internet safer for kids.

President Trump’s tweets this morning are, of course, the stuff that only dictators propose. 
Be that as it may, it’s worth some time in the upcoming confirmation hearings to get Judge Kavanaugh on record about whether Reno v. ACLU should be overturned to enable a president—for whom he professes expansive powers— to regulate online searches for political purposes.

The Constitution's Bicentennial: Commemorating the Wrong Document?

Tomorrow, I launch a new course designed for undergrads at UIUC. The title? “Immigration and Race: Inequality in Work.”

My 20 or so students will debate whether the U.S. Constitution is worth celebrating.

They’re reading (among other things) Justice Thurgood Marshall’s short, clearly written, negative appraisal of our original Constitution. Marshall, the first black Supreme Court justice, wrote in 1987.

I’m appending a link below in case you want to read and perhaps comment on (see end of post). Let me summarize his case for not celebrating:

The Constitution counted slaves as 3/5 of a person for apportioning representation in the House. Two major problems: 1. Enslaved blacks were treated as property, not human beings. 2. The South was rewarded with more representation in proportion to the size of their slave population.

The Constitution politically ratified a divided nation—the North, with abolitionist impulses, and the South, with an economy built on racism. We are bedeviled by that polarity today, significantly along lines created in the Constitution.

“We the people” meant “we, free white men.” Women were not “we.” Indentured white men (serving out labor contracts) were not “we.” Enslaved blacks were not “we,” and free blacks were not “we.” Native Americans were not "we."

Art. IV, Section 2 of the original Constitution was a fugitive slave law proposed by Southern states: "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

A Civil War that left more than 650,000 soldiers dead was needed to correct this odious inequality.

The constitutional drafters had a chance to do so much better. The first draft of the Declaration of Independence—the document that inspired the Constitution 11 years later— had a paragraph that rejected British laws that permitted slavery in the colonies. The framers debated this-- and voted to keep out any objections to slavery (because Southerners threatened to walk out).

PS: You might ask, where’s the “inequality in work” part of this? Good question. 1. Slavery is forced labor. 2. Indentured servants— some “free willers,” others, such as children sold to pay off debts from their parents in England—had to work for their freedom. Coerced labor was written into our Constitution.

For more, see this: http://racism.org/index.php/articles/185-articles/laws/lawsconstituion/2152-the-constitution-s-bicentennial-commemorating-the-wrong-document

Blood and Equality

(Ponca Chief Standing Bear Addresses the U.S. District Court in Nebraska in 1879)

Two Latino festivals in Iowa have been cancelled. Organizers fear a violent backlash from immigration foes who broadly blame “illegals” for killing Mollie Tibbetts and others.

We can learn much from a trial in 1879 to remove the Ponca Indian tribe from Nebraska. First, we will listen to an argument made by an “educated” lawyer— a U.S. Attorney, G.M. Lambertson— who sought removal and relocation of the Poncas. I have reprinted a brief passage from his law review article “explaining” why Indians did not deserve U.S. citizenship. Second, we will hear from Chief Standing Bear, who addressed the court through a female interpreter, Susette ("Bright Eyes") La Flesche. Lastly, we will hear from the judge.

G.M. Lambertson: Again, there is no overwhelming political necessity, as in the case of the negroes,  requiring us to make citizens of the Indians. When we remember that our country is heavily invaded, year by year, by the undesirable classes driven out of Europe because they are a burden to the government of their birth that as many as seventy thousand immigrants have landed on our shores in a single month, made up largely of Chinese laborers, Irish paupers, and Russian Jews; that the ranks are being swelled by adventurers of every land -the Communist of France, the Socialist of Germany, the Nihilist of Russia, and the cutthroat murderers of Ireland--that all these persons may become citizens within five years, and most of them voters under State laws as soon as they have declared their intentions to become citizens - we may well hesitate about welcoming the late "untutored savages" into the ranks of citizenship.

Standing Bear rose, extending his hand toward the judge’s bench: “That hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be the same color as yours. I am a man. God made us both.”

Judge Elmer Dundy issued a ruling that surprised many observers and caused comment across the country. The judge found that "an Indian is a person within the meaning of the law" and that Standing Bear was being held illegally. He issued a “writ of habeas corpus” — in this case, an order to release someone held illegally. 

The judge said more: "That the Indians possess the inherent right of expatriation as well as the more fortunate white race, and have the inalienable right to ‘life, liberty and the pursuit of happiness,’ so long as they obey the laws and do not trespass on forbidden ground.”

…

Two years after the trial, Congress appropriated money to compensate the Ponca for their losses, and allocated land for individuals of the Ponca tribe similar to homesteading titles given to white settlers. The hate directed at Latinos in Iowa appears to be a step back from the progress made in Nebraska in the early 1880s.

For more, see http://nebraskastudies.org/1875-1899/the-trial-of-standing-bear/the-trial/ and G. M. Lambertson, Indian Citizenship, 20 Am. L. Rev. 183 (1886).

Does President Trump Have Power to Adjourn Congress to Avoid Impeachment?

Maybe. It’s never been done, nor tried, nor suggested—not by President Andrew Johnson, not by President Richard Nixon, and not by President Bill Clinton. But President Donald Trump appears to have an unlimited view of his powers.

Article II of the U.S. Constitution states that the president “may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper." 

While many people know that the president can call a special session of Congress, it is less well known that he can actually adjourn them if they disagree about when they want to adjourn.

Suppose that in 2019 the House is under Democratic control and the Senate is under Republican control. Further suppose that the Democrats in the House start impeachment proceedings. As a procedural move, suppose the Senate Leader (presumably Mitch McConnell) disagrees with the Democratic Speaker on a date to adjourn—and further suppose that Senate Republicans would want to force an end to any impeachment proceedings by using this tactic.

That would appear to open the door to President Trump to adjourn Congress—and indefinitely because the text says “he may adjourn them to such Time as he shall think proper.”

So, why did the framers give the president the power to adjourn Congress? 

It was done to preserve the president’s power to veto legislation and send back objections to Congress for reconsideration. 

Recall that a bill does not become a law until the president signs it.

Or, the president cannot sign the bill for ten days. This is called a pocket veto. The bill still becomes a law, with one major exception. As the U.S. Senate explains to the public: “The Constitution grants the president 10 days to review a measure passed by the Congress. If the president has not signed the bill after 10 days, it becomes law without his signature. However, if Congress adjourns during the 10-day period, the bill does not become law.”

The idea behind the “adjournment power” is to keep a bill alive for the president to veto, send back to Congress with objections, and force another attempt to find compromise legislation. This requires one chamber to set the table for this veto process by disagreeing with the other chamber on adjournment.

Constitutional framers did not intend the adjournment power to be used as a banana republic dictator version of adjourning the Congress. But, if you’re a textualist and if you support President Trump through thick and thin, there is an argument for this seemingly unimaginable use of presidential power.

However and whenever the Trump presidency ends, it appears that Article II of the Constitution is too vague and places too much trust in a president not to abuse power—and it is possible, though not clear, that the constitutional framers assumed that the judiciary and Congress would check presidential abuses.

If you want to read more on this topic, and https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm, and

https://www.senate.gov/artandhistory/history/resources/pdf/6Rulesrevisionreport1986.pdf.

What Key Immigration Policy Did Reagan Begin, and Bush I and Obama Continue?

The answer is deferred deportation for minors—called DACA by an Obama executive order, and unnamed by the earlier presidents.

But first, some context. News outlets are reporting that the accused killer of Mollie Tibbetts is a 24 year-old man who came to the U.S. unlawfully seven years ago—and his employment status was verified in error, exposing a flaw in the database. My point? He apparently came here as a minor—and he is President Trump’s latest illustration of the inherent safety risk posed by “illegal immigrants.”

President Reagan took a different view of “illegal immigrants,” especially kids. In October 1987, President Reagan legalized the presence of children who illegally immigrated with their families. Under the 1986 Immigration Reform and Control Act, Congress legalized the presence of some children but not “split-eligibility” families. Lawmakers attempted to correct this problem but were defeated by anti-immigration colleagues who feared a “second amnesty.”

Reagan’s administration stated a policy of “deferral”— it would not, for the present time, deport children, where one parent could establish legal presence (under an amnesty law) but the other parent could not qualify. Back then, it was called “family values.”

In 1989, President Bush I’s administration issued a memorandum called “Family Fairness: Guidelines for Voluntary Departure for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (the McNary Memo).” 
Pause. Notice that President Bush used the term "ineligible" instead of "illegal"? It's important.
The Bush I policy stated that deportation would be deferred for ineligible aliens who had not been convicted of a felony or three misdemeanors. 
A related policy allowed these minors to be authorized to work in the U.S., if old enough to do so.

Fast-forward to June 2012. President Obama announced the DACA policy—Deferred Action for Childhood Arrivals. It built directly off the “family values” platform that President Reagan started and President Bush expanded.

Mollie Tibbetts’ family has suffered an incalculable loss. Whether her apparent murder is reason enough to end the “family values” policy of “deferred deportation” is for readers to decide. My view coincides with President Bush, who stated “support for the family as the essential unit of society and respect for the family unit.” I also applaud the statement of policy by the INS Commissioner under Bush I, gary McNary, who said: “We can enforce the law humanely… To split families encourages further violations of the law as they reunite.”

Emergency Toilet Time for Irritable Bowel Syndrome (IBS) under the ADA?

Yes. To begin, we can readily agree that bowel movements are a “major life activity.” Back to that thought in a short minute.

According to the EEOC, Home Depot failed to provide an emergency break to an employee with irritable bowel syndrome at its Peru, Ill. store. Instead of accommodating the employee, Home Depot fired her for allegedly violating company policy by leaving her post unattended, the federal agency charged.

The EEOC sued in behalf of the fired worker.

Last week, the EEOC and Home Depot settled the lawsuit for $100,000.

Many employers have strict rules about bathroom breaks. With that in mind, the Americans with Disabilities Act defines disability as a substantial impairment of a major life activity, whether the impairment is physical or psychological.

Back to our first point: bowel movements are a major life activity. That being said, an employer must provide a reasonable accommodation unless it presents an undue hardship.

While details of the settlement do not discuss particulars, the EEOC likely persuaded Home Depot that it would prevail in court because allowing a sales person to run to the bathroom for irritable bowel syndrome would not be unreasonable as an accommodation, nor an undue hardship.

You might be asking, “Suppose the employee runs constantly to the bathroom?” The EEOC news release doesn’t address this, but accommodating a constantly recurring need would not strike me as reasonable. Occasional and unpredictable instances would seem within the realm of reasonable.

You might also ask, “What if time for toileting is long?” Again, I would think the same reasoning applies. If a 15-minute trip to the bathroom is necessary, that would seem unreasonable for purposes of requiring an accommodation. Five minutes? Seems reasonable to me for a sales associate.

Neither the EEOC nor any employment lawyer can make this crystal clear. But I leave you with this observation from the Greg Gochanour, the regional attorney for the EEOC: “The ADA requires employers to provide reasonable accommodations to employees with disabilities that enable them to perform their jobs. It is regrettable that instead of working with the employee to help secure coverage of her post in the event of a disability-related emergency restroom break, Home Depot fired her when, despite her best efforts, she was unable to find coverage.”

Whitopias

A White House speech writer, Darren Beattie, was fired over the weekend because word got out that he spoke at a 2016 conference attended by white nationalists.

Retired UIUC professor Robert Weissberg, a proponent of “whitopias,” is connected to Beattie, having spoken on the same program in 2016.

Weissberg was terminated as a contributor by the conservative journal, National Review, in 2012. Editor Rich Lowry explained, “Unbeknowst to us, occasional Phi Beta Cons contributor Robert Weissberg participated in an American Renaissance conference where he delivered a noxious talk about the future of white nationalism. He will no longer be posting here.”

The controversial 2016 conference was sponsored by the H.L. Mencken Club, named for a prominent writer who pushed white supremacist views. Mencken described the “negro” as a “low-caste man” who will “remain inert and inefficient until fifty generations of him have lived in civilization. And even then, the superior white race will be fifty generations ahead of him.”

Mencken called Jewish people “the most unpleasant race ever heard of.”

Prof. Weissberg has argued that liberals are beyond reason when it comes to race, that explaining the facts of IQ or the necessity of racial consciousness for whites “is like trying to explain to an eight-year-old why sex is more fun than chocolate ice cream.” (This gives us some idea of Weissberg’s IQ, low by any standard.)

As reported in Think Progress, “Prof. Weissberg … pointed out that there are still many ‘Whitopias’ in America and that there are many ways to keep them white, such as zoning that requires large houses, and a cultural ambiance or classical music and refined demeanor that repels undesirables. This approach to maintaining whiteness has the advantage that people can make a living catering to whites in their enclaves.”

PS: “Searching for Whitopia” is a book authored by an African American, Rich Benjamin. His book documents his journeys to find out why more and more white Americans move to small towns and areas that are, for the most part, white, and to explain why Whitopias are growing and what it means for the United States.

Court Rules that Trump Can’t Hide Info on His Transgender Exclusion Order

President Trump has been sued to overturn his tweet-announced policy of excluding transgender service people and contactors.

The White House argued before a federal court that executive privilege created a blanket immunity from provided information for how the policy has been developed, discussed, modified and implemented.

Trump announced his policy on Twitter on July 26, 2017, citing "consultation with my Generals and military experts" and the "tremendous medical costs and disruption" of transgender service members.

Several federal judges have blocked that ban, which reversed a year-old Obama administration policy, or a narrower version announced in March 2018.

The military began accepting transgender recruits this year even as the White House continued to litigate.

Trump had tweeted less than a month after Defense Secretary James Mattis delayed by six months a decision whether to admit such recruits, pending a review of its potential impact.

On Tuesday, Judge Copperthite rejected the White House arguments that the "deliberative process privilege" justified shielding documents sought by the ACLU.

Finding it hard to believe that "circumstances regarding readiness and deployability have changed so dramatically," the judge said the documents were likely to show the government's intent behind the ban, and whether it was for military purposes or "purely for political and discriminatory purposes."

Copperthite also said Trump's tweets "put the President front and center as the potential discriminating official," but that presidential confidentiality deserved "the greatest possible protection," justifying a delay in a ruling on Trump.

PS: There is an aspect to the order that affects reservists. In a separate lawsuit, Doe 1 v. Trump, a federal district court enjoined enforcement of the president’s Twitter-stated policy to end to the admission and continuing service of transgender military members.  The president’s broad ban affected the employment of Jane Doe 4, a reservist employed by the Department of Defense following her service in Iraq and South Korea.     

Urbana Schools Offers All Employers “Lesson” on Age Discrimination

(Photo of U.S. Circuit Court of Appeals, Seventh Circuit Kitty Cat Portrayer in My Employment Law Class)

Urbana School District 116 was sued yesterday by the Equal Employment Opportunity Commission for age discrimination. Chuck Koplinski, a teacher, finished classes that advanced him on the salary scale. He should have received a $4,994 raise. Urbana denied him that raise because he is within ten years of being eligible for a pension.

Koplinski (and others like him) say that is age discrimination. Urbana, citing a defense in the Age Discrimination in Employment Act, says it’s a “reasonable factor other than age” (RFOA).

That the EEOC has filed suit is itself remarkable. The agency only sues in behalf of employees in less than 1% of the discrimination complaints it receives. For the other 99%, individuals are given a “right to sue” letter. That allows them to proceed—at their own expense— in court with a discrimination complaint.

So, Urbana teachers are already winners— federal government attorneys are taking their case. This also implies that the EEOC believes it has a good case.

They do. Our federal appellate courts are divided into 11 numbered circuits, plus the D.C. circuit. These appeals courts have distinct legal personalities. As my students know, I demonstrate these tendencies by comparing circuits to kitty cats— idiosyncratic, hard to herd, independently minded.

The 7^th Circuit covers Illinois, Indiana, and Wisconsin. And this kitty cat really disapproves age discrimination.

Solon v. Gary Comm. Schools is the lead case here. Like Urbana Schools, Gary School District was under financial pressure. Like Urbana, they negotiated a discriminatory policy with their union.  Unlike Urbana, the policy was voluntary.

It said this: If you are 58 years old (four years ahead of being eligible to retire in Indiana), we’ll pay you four years of a starting teacher salary if you end your employment. If you are 59, we will pay you three years if you end your employment. If you are 60, we will pay you two years; and if you are 61, we will pay you one year.

Even though the plan was voluntary—a teacher could just keep on teaching past these age thresholds— the 7^th Circuit ruled that it violated the age discrimination act. Why? Because the plan was age-indexed, and the older a teacher was, the less the teacher was to be paid under the plan.

Urbana appears to be saying that it’s not using an age indexed plan. That is technically true. Urbana did not expressly reference age.

But as the EEOC noted in its press release yesterday, Urbana’s plan is age indexed by another name. It caps pay for any employee who is within ten years of being eligible to retire, and that always has an older age element. However you determine an employee’s eligibility to retire, the plan caps pay for some employees who are over 40 years old—the age discrimination threshold—compared to employees who are under 40. No one under 40 years of age is capped.

That appears to be a strong case for the EEOC and affected teachers.

Three concluding thoughts. 1. The Age Discrimination in Employment Act provides double damages for violations (because older workers have less time in the labor market to cure the damaging effects of discrimination). 2. Gary tried the “RFOA” (reasonable factor other than age) defense. That kitty cat in the picture ruled in favor of the teachers. 3. Whether you are a public or private sector employer, avoid pay plans that are age-indexed.

Mother-Daughter Deportation: Do Alien Immigrants Have Due Process Rights?

This is a photo from an ICE detention center taken on August 9, 2018. It might be a picture of the mother and daughter who were put on a plane for El Salvador while their deportation hearing was pending.

U.S. District Judge Emmet G. Sullivan grew furious after being told by lawyers for the American Civil Liberties Union during a hearing on Thursday that the mother, known in court documents as “Carmen,” and her daughter had been removed from their detention facility in South Texas and might be in the process of being deported from the country. He ordered the ICE plane to return the mother and daughter immediately.

The case reminds us of an awful Supreme Court decision, Shaughnessy v. U.S. (1953).

Mezei came to America in 1923 from Gibraltar. He lived an uneventful life in Buffalo until 1948. Receiving word that his mother was dying, he left for Romania to be with her. Romania refused his entry. 

He was held in Hungary for 19 months. 

He was then put on a ship bound for the U.S.

The U.S. refused to admit him, stating that he posed a national security threat. He was put back on a ship for Europe. 

Twice more, he went back and forth, but was denied entry everywhere he landed.

Finally, Mezei was deposited back at Ellis Island. He was refused entry again. This time, he refused to leave the immigration facility. He sued for an order of entry to the U.S. The Supreme Court, voting 5-4, denied his request.

Justice Robert Jackson lost the vote, but many courts since then have adopted his reasoning. 

They have worked around Shaughnessy on technical grounds, ruling that in certain circumstances even illegal aliens have due process rights.

Many Americans are moved by the mother-daughter case from last week. Here, then, is Justice Jackson’s memorable dissenting opinion. Again, he lost—but the point he made prevailed last week in Judge Sullivan’s court.

***

Our law may, and rightly does, place more restrictions on the alien than on the citizen. But basic fairness in hearing procedures does not vary with the status of the accused. If the procedures used to judge this alien are fair and just, no good reason can be given why they should not be extended to simplify the condemnation of citizens. If they would be unfair to citizens, we cannot defend the fairness of them when applied to the more helpless and handicapped alien. This is at the root of our holdings that the resident alien must be given a fair hearing to test an official claim that he is one of a deportable class.

The most scrupulous observance of due process, including the right to know a charge, to be confronted with the accuser, to cross-examine informers and to produce evidence in one's behalf, is especially necessary where the occasion of detention is fear of future misconduct, rather than crimes committed. Both the old proceeding by which one may be bound to keep the peace and the newer British ‘preventive detention’ are safeguarded with full rights to judicial hearings for the accused.

On the contrary, the Nazi regime in Germany installed a system of ‘protective custody’ by which the arrested could claim no judicial or other hearing process, and as a result the concentration camps were populated with victims of summary executive detention for secret reasons. That is what renders Communist justice such a travesty. There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law.

Because the respondent has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. Would not such measures be condemned judicially as a deprivation of life without due process of law? Suppose the authorities decide to disable an alien from entry by confiscating his valuables and money. Would we not hold this a taking of property without due process of law? Here we have a case that lies between the taking of life and the taking of property; it is the taking of liberty. It seems to me that this, occurring within the United States or its territorial waters, may be done only by proceedings which meet the test of due process of law.

Do Urbana Schools Monitor Student-Inflicted Injuries?

Urbana School District Unit #116 is implementing a controversial policy that terminates the role of disciplinary deans and also curtails suspensions to disruptive students. 

The upside is that the policy keeps disruptive students in school. The downside might be increasing the risk of student inflicted injury to teachers, staff, and other students.

Researchers at the University of Minnesota recently published “Student-Inflicted Injuries to Staff in Schools: Comparing Risk between Educators and Non-Educators.”

The rest of this post is a direct quote from their research summary (with my highlights in red):

Abstract

Objective: Student-inflicted injury to staff in the educational services sector is a growing concern. Studies on violence have focused on teachers as victims, but less is known about injuries to other employee groups, particularly educational assistants. Inequities may be present, as educational assistants and noneducators may not have the same wage, benefits, training and employment protections available to them as professional educators. We identified risk factors for student-related injury and their characteristics among employees in school districts.

Methods: Workers’ compensation data were used to identify incidence and severity of student-related injury. Rates were calculated using negative binomial regression; risk factors were identified using multivariate models to calculate rate ratios (RR) and 95% Cis (confidence levels).

Results: Over 26% of all injuries were student-related; 8% resulted in lost work time. Special and general education assistants experienced significantly increased risk of injury (RR=6.0, CI 5.05 to 7.15; RR=2.07, CI 1.40 to 3.07) as compared with educators. Risk differed by age, gender and school district type.

Text analyses categorized student-related injury. It revealed injury from students acting out occurred most frequently (45.4%), whereas injuries involving play with students resulted in the highest percentage of lost-time injuries (17.7%) compared with all interaction categories.

Conclusion: Student-inflicted injury to staff occurs frequently and can be severe. Special education and general assistants bear the largest burden of injury compared with educators. A variety of prevention techniques to reduce injury risk and severity, including policy or environmental modifications, may be appropriate. Equal access to risk reduction methods for all staff should be prioritized.

For more, click on https://injuryprevention.bmj.com/content/injuryprev/early/2017/10/26/injuryprev-2017-042472.full.pdf. 

When You Say “Accident” Perhaps You Mean “Crime”

So said the Colorado School of Mines Magazine, Golden, Colorado, exactly 100 years ago (August 1918 edition).

The gruesome photos above capture the death of a worker in 2014. His skull was fractured and body part severed (between his body and the crew, where none of the men are able to face the victim due to the horror).

Last week, several employers were heavily fined for reckless safety practices. A brief summary follows.

Aug. 3 ― OSHA proposed $588,000 in penalties against an Illinois adhesives maker. The Frankfort, Illinois adhesives manufacturer was cited for 18 health and safety violations, including failing to provide employees with respirator fit tests and respirators appropriate for hazardous environments, failing to follow safety precautions when transferring flammable liquids, and failing to ensure that electrical equipment was approved for use in hazardous atmospheres.

Aug. 3 ― Dallas Dollar Tree was cited for locking an emergency exit. This very practice led to the fiery deaths of 25 employees in Hamlet, NC in 1991. Dallas Dollar Tree faces a proposed fine of $129,000. An anonymous tip from an employee on the agency’s whistleblower hotline led to this investigation and fine.

Aug. 6 ― A Texas construction firm faces a fine of $191,000 for trench collapse hazards. The El Paso construction company exposed its employees to potentially lethal danger by letting them work in an unprotected trench. Safety laws require that employers provide workers a safe way to enter and exit a trench, protection from cave-ins, and training. The company did none of these. Worse yet, the company had been put on the “severe violator” enforcement program in 2017 after it received four safety citations for these risks.

Aug. 6 ― A contractor at a Tennessee nuclear power plant faces a $71,599 fine for exposing workers to electric shock dangers. Day & Zimmermann NPS Inc. received serious citations after two workers suffered burns from an “arc flash,” a type of electrical explosion. OSHA says that this is a common and also highly preventable hazard.

I leave with some catchy safety quotes used by employers in the early 1900s.

“Don't kid about Safety; you may be the goat.” Gary Works Circle by Illinois Steel Company, 1916

“Accidents are someone’s fault. Don’t let them be yours.” Gary Works Circle by Illinois Steel Company, 1916

“Put your soul into your work, not your hand or foot.” State Safety News, September 1916, published by the University of Arizona Bureau of Mines

“Do not think because an accident hasn’t happened to you that it can’t happen.” Safety saying, circa early 1900s

“Safety brings first aid to the uninjured.” F.S. Hughes, 1912

“You don’t need to know the whole alphabet of Safety. The a, b, c of it will save you if you follow it: Always Be Careful.” Colorado School of Mines Magazine, Golden, Colorado, August 1918

Targeting White Supremacy

Jason Kessler is in the news today. He’s the organizer of last year’s “Unite the Right” fiasco—and the organizer of today’s white supremacy march.

Mr. Kessler is already paying a large legal price for his reckless actions. He is the lead defendant in Sines v. Kessler. 
The complainants are ten (10) people who allege that they were injured by white supremacists in Charlottesville.

To boil matters down, the defendants have already been ordered to produce many documents and records related to what is alleged to be a conspiracy among white supremacists to commit harm and to interfere with the civil rights of counter-protesters.

David Duke is part of this expensive litigation. See https://scholar.google.com/scholar_case?case=6872817707845441680&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

So are Richard Spencer, Christopher Cantwell, Jeff Schoep and other prominent white supremacists. See here https://scholar.google.com/scholar_case?case=13081112698056758367&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

The lawsuit is being aggressively pursued. For example, attorneys have uncovered a “Jane Doe” in California who operated an online account under the name of “kristall.night.” This seems to parrot the infamous attack on Jews that marked the start of the Holocaust. See https://scholar.google.com/scholar_case?case=8187587846833622013&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

I have been in touch with two attorneys who are leading this effort. They are highly experienced; and they practice in elite law firms in Washington D.C. and New York City. I have offered my research article on the Ku Klux Klan Act as support for their efforts. They both expressed interest.

The article is titled “Targeting White Supremacy in the Workplace.” It is a 2018 publication in Stanford Law & Policy Review.  It is summarized here, https://law.stanford.edu/publications/targeting-white-supremacy-workplace/.

Thinking Back on Charlottesville to the Boston Female Anti-Slavery Society

(Photo Credit: Mississippi State University Photo Library, Mulatto Orphan, 1865, Richmond, Virginia)

Marking the first anniversary of the “Unite the Right” violence in Charlottesville, it is worth a moment to think back on a slavery case from 1836—a case that made national headlines. That case featured liberals who thought very much like liberals today.

The case was COMMONWEALTH v. THOMAS AVES (Supreme Judicial Court of Massachusetts, March Term, 1836).

Mary Aves Slater of New Orleans went to Boston in 1836 to visit Thomas Aves, her father. She brought with her a six-year-old girl named Med who, under Louisiana law, was considered the property of Slater’s husband, Samuel Slater.

Members of the Boston Female Anti-Slavery Society learned that an enslaved girl was staying in Boston. They hired attorneys to secure Med’s freedom.

A writ of habeas corpus was served on Thomas Aves, the owner of the house where Med was staying. It was served in the name of a male abolitionist, Levin H. Harris, because women were strongly discouraged from filing lawsuits.

On August 21, 1836, the case was brought before Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court.

Shaw discussed several precedents in international law, including the British case of Somerset v. Stewart (1772), and the abolishment of slavery in Massachusetts. The only people who could be treated as slaves in Massachusetts, he reasoned, were fugitive slaves, and then only because the U.S. Constitution specifically required it.

Therefore, Med had become free as soon as her alleged owner voluntarily brought her to Massachusetts. He cited several cases demonstrating that even in Southern states it was understood that a slave became free when voluntarily brought to a free state.

Commonwealth v. Aves was later used as a precedent in other Northern states. Connecticut used it in Jackson v. Bulloch (1837); New York and Pennsylvania used it in legislation declaring that slaves became free when brought to those states; and Ohio courts began using it in 1841. By the start of the Civil War, every Northern state other than Indiana, Illinois, and New Jersey granted freedom automatically to any slave brought within its borders.

Med was placed in the custody of the abolitionist women, while her mother and siblings remained enslaved in New Orleans.

Too Much Utah?

Two weeks after President Trump issued his “travel ban” (a/k/a, “Muslim ban”), I started a long term research project on executive orders. My goal: identify every executive order dealing with immigration or race that affects employment (the travel ban disrupted numerous employment relationships, ranging from an NBA player to university researchers from banned countries).

So far, I’ve identified 239 orders and proclamations. Some are aspirational—the best America can offer: Lincoln’s Emancipation Proclamation, declaring slaves in ten states to be free and also eligible to be wage earners. The worst is FDR’s Executive Order 9066, ordering the internment of Japanese Americans (it effectively ended thousands of jobs held by these people). 

The Supreme Court invariably upholds these orders, including those that discriminate on the basis of race or religion.

My challenge: These orders are sporadic; brief in their statement; and opaque in concealing their odious intent. Courts just see the surface, the words of the order—they never look for the intent.

We saw this in the 5-4 Hawaii v. Trump case. 

Five justices saw just the text and said the president acted under appropriate authority. 

Four justices saw the anti-Muslim bias, read the tweets and campaign statements, and said the order was unconstitutional.

Having spent a week in the Uinta (above) and Wasatch mountains, I subconsciously developed a new way to think about these orders. They are comparable to volcanic islands.

On the surface, these presidential orders are small in scale; cool to the touch; and often barren. But look underneath. They are created by super-heated political forces, some that are malignant.

Before any president—whether FDR, Trump, Hoover, Coolidge, to name a few— issues a xenophobic order, Congress has enacted a law that authorized the president to act unilaterally. But most of these laws emanated from demagogic, anti-immigrant, and overtly racist political campaigns.

They underpin the briefly stated executive orders that give no outward indication of the “upheaval” (political and geologic) that creates such as order or an oceanic island.

Feel free to provide feedback at mhl@illinois.edu. It’s a whacky approach, and I might still be deprived of oxygen. Too much Utah! … But my challenge is to convince readers (and ultimately, judges) that these orders are the surface manifestations of a much broader and deeper phenomenon.

I’ll end by saying that I am offering this as an analogy to help us focus on the creative energy that leads to these executive orders. When an order is motivated by hate toward a specific group (e.g., Muslims, Japanese), two constitutional principles are implicated:

1. A majority view cannot be tolerated if it leads to tyranny over a minority. See the Federalist Papers-- or go see Hamilton.

2. After the Civil War, our Constitution guarantees equal protection to “all persons”—not all citizens, not all Americans, but "all persons."

Somehow, courts must be persuaded to look below the surface of these executive orders.