Protecting Transgender Students Nationwide

      Three federal laws passed by Congress and signed by three different presidents representing both major political parties require schools, nationwide, to provide equal educational opportunities for all pupils regardless of race, sex, or intellectual disability.
      Those laws fulfill the Declaration of Independence's aspirational assertion that "all men [sic] are created equal" and give concrete meaning to the Fourteenth Amendment's clause that guarantees "equal protection of the laws" to "any person."
      Nothing in those founding documents suggests that equal rights were to vary as Americans migrated from one colony to another or after the Civil War from one state to another. Yet, despite the late 20th century federal laws on equal education, the so-called Trump administration now says the rights of transgender students in public schools are a "states rights" issue.
      Barely a month in office, the Trump administration cheered its social conservative constituency last week [Feb. 22] by rescinding controversial guidance issued by the Obama administration's Education Department on transgender students. The guidance, issued under the prohibition against sex discrimination embodied in Title IX of the Education Amendments Act of 1972, instructed schools to allow transgender students to use bathrooms and locker rooms based on their gender identity instead of their sex at birth.
      By way of reference, Title IX reads as follows: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." The law applies not only to K-12 public schools but also to public and private higher education. The omnibus measure was approved by the Democratic-majority Congress by a 2-1 majority in the House of Representatives and an 88-6 vote in the Senate and then signed into law by the Republican president, Richard M. Nixon.
      To some extent, Title IX was modeled on a provision in the Civil Rights Act of 1964, known as Title VI, that uses the same language to prohibit any federally funded programs from discriminating on the basis of race, color, or national origin. Title IX's most visible impact perhaps has been its use to require schools and colleges and universities to significantly expand opportunities for women in athletic programs.
      The debate over the law's impact on transgender students is of recent vintage and reached a critical point with policy guidance issued in April 2014 by Obama's Department of Education and the department's Office of Civil Rights (OCR).  “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity," the document stated, "and OCR accepts such complaints for investigation.”
      Consistent with that position, the Education Department began telling local school districts with sex-separated facilities such as bathrooms and locker rooms to allow transgender students to use the facilities consistent with their gender identity. The department formalized that advice in a letter in May 2016 signed by the civil rights chiefs of the departments of Education and Justice and addressed to school officials nationwide with the salutation "Dear Colleague."
      The letter came a few weeks after the Fourth U.S. Circuit Court of Appeals had ruled in favor of a Virginia transgender high school student, Gavin Grimm, who had sued the Gloucester County School Board over its decision to bar him from using the boys' bathrooms and locker room at his school. The school board took that case to the Supreme Court, which is currently scheduled to hear arguments on March 28 unless the Trump administration's shift prompts the justices to pull the case from the calendar.
      In rescinding the Obama administration guidance, Trump administration officials said it was causing "confusion" for school districts. The rescission came under the name of two Trump cabinet officials, Attorney General Jeff Sessions and Education Secretary Betsy DeVos. Sessions' role came as no surprise: he has opposed expansions of LGBT rights in any form, whether as marriage rights or anti-discrimination statutes. Surprisingly, DeVos, confirmed thanks to the vice president's tie-breaking vote after a 50-50 party-line split in the Senate, was reported to have resisted the move.
      In her confirmation hearing, DeVos had indicated little, if any, awareness of another major civil rights law: the Individuals With Disabilities Education Act, known by the acronym IDEA. That law was approved by the Democratic-majority Congress in 1990 by voice vote in both chambers and signed with much fanfare by the Republican president George H.W. Bush. In her testimony, DeVos said educating pupils with disabilities should be left up to the states.
      Congress included Title VI in the Civil Rights Act of 1964 because, even after a decade of Supreme Court desegregation rulings, state and local governments were discriminating against African Americans in schools and other municipal facilities. Title IX was needed to correct the gross imbalance in, for example, scholarships available to women. IDEA was needed because so many schools were disadvantaging pupils with physical or mental disabilities despite other, broader federal laws requiring accommodations for individuals with disabilities.
      In Gavin's case, his school was willing to accommodate his request, but the school board overrode the administrators after a public outcry exemplified by the concerned citizen who called Gavin "a freak" during one public session. Transgender students deserve better: they deserve the equal protection of the laws, in red states and blue states alike. That would make America great, again.

Gorsuch Is No Help to Stranded Truck Driver

      Alphonse Maddin was driving a tractor-trailer through Illinois in subzero temperatures in January 2009 when the brakes on his rig froze up. He called a dispatcher for a repair. But he was still waiting nearly three hours later, numb from the cold because of a non-working heater, when he decided to unhitch the trailer and drive the cab to a heated service station.
      TransAm Trucking fired Maddin for disobeying instructions to stay with the trailer or drag it to the nearest service station despite the inoperable brakes. But a U.S. Labor Department administrative law judge (ALJ) found that the company had violated whistleblower protections in the Surface Transportation Assistance Act by retaliating against him for reporting the safety issue and refusing the order to drive the vehicle in an evidently hazardous manner.
      Maddin may sound like the kind of working-class American who helped Donald J. Trump win the presidency expecting no longer to be forgotten. When Maddin's case reached the federal appeals court in Denver, however, Trump's nominee for the Supreme Court turned a deaf ear to his plight. The Tenth U.S. Circuit Court of Appeals majority in the case upheld the ALJ's ruling that the company owed Maddin back pay and had to clear his personnel file of any negative findings about the episode.
      Dissenting, Judge Neil Gorsuch argued that the truck safety law prohibited a company from firing an employee only for a refusal because of safety concerns to "operate" the vehicle. Maddin had not refused to operate the vehicle, Gorsuch argued, but had instead chosen to operate it contrary to instructions in a manner that he deemed safe for himself and the cargo.
      The court's decision in TransAm Trucking, Inc. v. Administrative Review Board drew scant attention when issued last summer [Aug. 8, 2016]. In a telling coincidence, however, two sets of lawyers reviewing Gorsuch's record in advance of his confirmation hearings next month [March 20-23] both spotted the case and saw Gorsuch's dissent as an indication of his likely stance on business and labor cases if confirmed for the lifetime post.
      Lawyers with the Leadership Conference on Civil Rights called Gorsuch's dissent an example of his "favorable treatment of employers and corporate defendants" and his "reflexive rejection of workers' rights claims." Three lawyers with the corporate law firm Orrick, Herrington & Sutcliffe, on the other hand, praised Gorsuch's dissent as an example of his commitment to "textualism" in statutory construction and his refusal to uphold administrative agency interpretations "untethered from the statutory language itself."
      Attorneys Rachel Apter, Bob Loeb, and Paul David Meyer concluded in their 2,500-word paper that Gorsuch's confirmation would help return the Supreme Court to its "business-friendly leanings." They cited other Gorsuch opinions, some of them in dissent, to suggest that he would give corporate defendants more tools to block class action suits, limit liability for securities fraud, and favor enforcement of mandatory arbitration clauses against workers or consumers. Gorsuch's vote on those issues, the lawyers write, "could often be decisive."
      The civil rights lawyers instead read Gorsuch's record as "out of the mainstream of legal thought." His record on the bench, along with writings and speeches, "demonstrate that he is a judge with an agenda," the civil rights group said in a six-page evaluation, even when precedent dictates a contrary result. The report notes other Gorsuch's opinions unfavorable to plaintiffs in five separate workers' rights cases, four of them in dissent.
      The Lawyers' Committee helped organize a total of 107 other civil rights groups to sign on to the negative evaluation and to urge "all senators" to oppose his nomination. Besides his judicial record, the letter notes Gorsuch's article written for National Review in 2005 before his appointment to the bench criticizing "American liberals" for what he called their "overweening addiction to the courtroom as the place to debate social policy . . . ."
      "Judge Gorsuch's hostility to the use of courts by discrimination victims to enforce their rights under the Constitution and federal law demonstrates his ideological agenda," the civil rights groups state. With the court "closely divided on many critical issues," they warn, Gorsuch "would tip the balance in a direction that would undermine many of our core rights and legal protections."
      The civil rights groups also point critically to Gorsuch's votes in two high-profile decisions to allow employers to evade the Obamacare requirement to include coverage for contraceptives in health benefit plans based on religious objections. Among other decisions, they note his majority opinion in a 2013 case rejecting a constitutional claim against a police officer who fatally tased a fleeing 22-year-old suspect. The officer shot the youth in the head rather than the back, as taser training materials instructed except in high-risk cases.
      The business lawyers note favorably Gorsuch's decade in private practice as a commercial litigator before taking the bench. By contrast, the civil rights groups want more information about Gorsuch's year-long tenure at the Justice Department as principal deputy to the associate attorney general. They note that he had responsibility for supervising the civil rights division, among other litigating units, during the intense controversy over political hiring and firing  in the division.
      Unrelatedly, the Campaign Legal Center, the Washington-based voting rights and campaign finance reform group, has filed a Freedom of Information Act request for documents pertaining to Gorsuch's service at Main Justice. Combined with Gorsuch's judicial record, the information will add to the partisan clash of opinions when Gorsuch takes the stand next month.

Trump's "So-Called" Executive Order Blocked by Judges

      For pithy commentary on the federal appeals court's decision to block President Trump's controversial anti-Muslim travel ban, the prize goes to David Cole, national legal director of the American Civil Liberties Union: "So much for your so-called executive order," Cole tweeted hours after the ruling.
      Cole was alluding sarcastically to Trump's reaction to the initial judicial setback for the executive order that he issued on Jan. 27 ostensibly to block potential Islamic terrorists from entering the United States. In one of his signature tweets, Trump belittled the temporary restraining order issued a week later by U.S. District Court Judge James Robart by calling Robart "the so-called judge."
      Robart, appointed to the U.S. district court in Seattle by President George W. Bush, is a life-tenured federal judge, while Trump has only a four-year lease on the presidency. The three federal appeals court judges who rejected the government's attempt to salvage Trump's executive order also have life tenure: a safeguard for their independence even in the face of verbal abuse from the White House such as Trump's description of their ruling as "disgraceful."
      The three-judge panel heard oral arguments by telephone on Monday [Feb. 7] sitting in chambers in three different cities with the opposing lawyers themselves arguing from remote locations: Olympia for the solicitor general representing the state of Washington and Washington, D.C., for the Justice Department attorney representing the government. In a milestone for access to federal court proceedings, more than 170,000 people are said to have viewed or listened to the livestreamed audio of the hour-long proceeding.
      In oral arguments, all three judges peppered both lawyers with probing questions. The two Democratic-appointed judges — Michelle Friedland, an Obama appointee, and William Canby, a senior judge named by President Jimmy Carter — seemed likely to rule on the side of the two states, Washington and Minnesota, challenging the order. Their Republican-appointed colleague Richard Clifton, named to the bench by Bush43 in 2001, seemed somewhat more supportive of the administration's arguments.
      In the end, however, Clifton joined the unsigned 29-page opinion issued two days later [Feb. 9] that point by point rejected the government's arguments in favor of reinstating all of the executive order's provisions on hold since Robart's ruling. The ruling was aptly described by the New York Times's Supreme Court correspondent Adam Liptak as "a sweeping rebuke" of the administration's efforts to insulate the executive order from judicial review and to depict it as necessary for national security.
      The government argued the states had no legal standing to bring their suit at all. The states strained a bit to show legally cognizable injuries, but at minimum the panel agreed that they have proprietary interests in their public universities' ability to receive and attract foreign scholars from the seven majority-Muslim countries included in the travel ban.
      The panel was not at all tentative in rejecting the administration's position that the president's nationals security decisions are "unreviewable" even if they violate constitutional rights. That position, the court stated, "runs contrary to the fundamental structure of our constitutional democracy."
      In any event, the court said that the administration had failed to show that the executive order was needed or even useful at all for national security purposes. Echoing a point emphasized not just in the court proceeding but in the wider public debate, the court noted that the administration had shown "no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States."
      All of those points were sufficient for the court to greenlight the states' due process challenge for further proceedings before Judge Robart. Trump and White House aides argued that the appeals court panel had not ruled on the merits, but in upholding the temporary restraining order the appeals court seconded Robart's finding that the government had failed to show "likelihood of success" on the merits.
      Even with the appellate judges deliberating, Trump tweeted that they were risking national security and that he would lay any terrorist attack on the courts' doorstep. Trump's verbal abuse of federal judges goes back to the presidential campaign when he criticized the ethnic heritage of the federal judge presiding over the suit against his so-called Trump University.
      Trump's attacks are now a side issue in the coming confirmation fight over his Supreme Court nominee, federal appellate judge Neil Gorsuch. In private meetings with at least two senators, Democrat Richard Blumenthal of Connecticut and Republican Ben Sasse of Nebraska, Gorsuch said he found attacks on federal judges to be "disheartening" and "demoralizing." Trump accused Blumenthal of lying about the supposed exchange. But Gorsuch's confirmation handler, former New Hampshire senator Kelly Ayotte, confirmed the essence of the exchange even while trying to walk it back. Ayotte said Gorsuch was referring to attacks on federal judges in general, but Blumenthal countered that he had asked specifically about Trump's remarks.
      As to the so-called executive order, Trump may or may not be be going back to square one, in unTrumpian fashion. Facing a likely 4-4 loss at the Supreme Court, Trump told reporters aboard Air Force One on Friday that he might issue a "brand new order." At one point, sources were quoted as waving off an immediate appeal, but later the White House appeared to signal an intention to appeal. The confusion in airports when the executive order was briefly in effect now appears to have spread to 1600 Pennsylvania Avenue itself.

Trump's America: Not So Brave, Not So Free?

      Freedom has been in a worldwide slump for the past decade, according to the respected U.S.-based research and advocacy group Freedom House. And the slump continued in 2016, according to the group's latest annual report, with the United States and U.S. policy now listed among the major causes of concern.
      The new report, entitled "Populists and Autocrats: The Dual Threat to Global Democracy," links the decline to the rise of "populist and nationalist forces" in democratic states in Europe and elsewhere and to "brazen acts of aggression" by autocratic states such as Russia and China.
      Turning to the United States, the report depicts Donald Trump's presidential campaign as akin to "the kind of populist appeals that have resonated across the Atlantic in recent years." And it notes unfavorably that Trump "belittled" the United States' treaty alliances and criticized the European Union while praising the Russian president Vladimir Putin and appearing to accept Russia's occupation of Crimea.
      The United States was one of 67 countries with a net decline in Freedom House's numerical scores, based on its combined assessment of political rights and civil liberties in each country. Beginning in 2006, the number of countries with net declines has exceeded the number with net increases each year. For 2016, the gap — 67 declines versus 36 increases — was wider than in any of the previous years except for 2009 when it was 67 to 34. Troublingly, countries listed as "free" (as opposed to "partly free" or "not free") accounted for a larger share of the declines than at any time in the previous decade.
      The United States' score dropped only a tick: from 90 in 2015 to 89 in 2016, the equivalent of a B-plus instead of an A-minus. But embarrassingly for the world's self-proclaimed greatest democracy, some 40 countries are given higher ratings. Many are familiar: the Scandinavian countries and others in Europe plus Canada, Australia, and New Zealand, among others. In politically vibrant Taiwan, news media gave headline coverage to its newly established status, thanks to a score of 90, as "freer" than the United States.
      Admittedly, Freedom House was lukewarm in assessing the United States' support for global democracy under President Obama. The Obama years ended, the report says, "with America's global presence reduced and its role as a beacon of world freedom less certain." But the report describes Trump's campaign positions more worrisomely. His statements "raised fears of a foreign policy divorced from America's traditional strategic commitments to democracy, human rights, and the rules-based international order that it helped construct beginning in 1945."
      Explaining the United States' slippage, Freedom House's veteran democracy watcher Arch Puddington listed a handful of issues, including what he called "voter suppression," partisan gerrymandering, the role of money in political campaigns, and the role of race in the criminal justice system. As a private citizen, Trump may bear no responsibility for those long-term conditions, but nothing in his campaign or his first two weeks in office offers even the slightest hope for addressing any of them in the least bit constructively.
      The Freedom House report, released on Jan. 31, noted approvingly that Trump appeared to have "abandoned or softened" some of his "contentious" campaign promises, including "mass deportations of immigrants." But speakers at the program joined in criticizing Trump's executive order four days earlier limiting entry into the United States from seven majority-Muslim countries, even by valid visa holders or legal permanent residents.
      The report expressed concern whether the United States and Europe might retreat from what it called "their responsibilities as global leaders" to help support "vulnerable democracies." In office, Trump has only added to that fear. Reporting from London, the New York Times's diplomatic correspondent Steven Erlanger described widespread concern among European leaders about Trump's intentions in foreign policy. Erlanger noted that Trump has attacked and insulted U.S. allies — for example, in the combative telephone call with Australia's prime minister Malcolm Turnbull — while reserving praise for "populists and strongmen" such as Putin, the Philippines president Rodrigo Duterte, and the Brexit-favoring Independence Party leader Nigel LaFarage in Britain.
      The United States has been the self-proclaimed leader of the Free World ever since the end of World War II. With the end of the war, the United States helped its major enemies, Germany and Japan, in political as well as economic reconstruction. With scores in the mid-90s, both countries are now rated as "freer" than the United States in the Freedom House report. On the other hand, Afghanistan is "not free" despite U.S. support for reconstruction over the past 15 years and has dropped 10 points in the Freedom House scale over the past decade.
      In the name of anti-Communism, the United States lent its aid during the Cold War to any number of undemocratic regimes -- for example, the Chilean dictatorship led by Augusto Pinochet from 1974 to 1990. But Democratic presidents beginning with Jimmy Carter have moved U.S. foreign policy toward somewhat more consistent support for democratic as opposed to undemocratic governments. Today, Freedom House gives Chile a score of 94 — freer, that is, than the United States.
      The baseball season resumes in the United States later this month with spring training, along with the ritual pregame singing of the national anthem. But the anthem's closing lyric will ring less true than in years past: home of the not so brave and land of the not so free. Sad!

Gorsuch Faces Bitter Fight on Path to Court Seat

      Neil Gorsuch is likely to win confirmation as the nation's 113th Supreme Court justice, possibly even quickly enough to join the court before the end of the current term as successor to the late Justice Antonin Scalia. But confirmation will come only after a bitter fight waged by Senate Democrats and liberal advocacy groups opposed to his judicial record and still indignant at the Republican-controlled Senate's role in stealing the seat that they believe rightfully belongs to President Obama's nominee, Merrick Garland.
      President Trump has boxed his opponents in, however, by choosing a nominee of unassailable professional credentials and legal views that fall within what legal conservatives have now defined as mainstream. Democrats will try to use the confirmation hearings to paint Gorsuch as outside the mainstream, just as they did 30 years ago in defeating President Reagan's nomination of Robert Bork. From all that appears, however, Gorsuch is no Bork. He he has neither the beard nor the doctrinaire zeal that led Bork to question the constitutional basis for the right to privacy or to injudiciously describe a seat on the Supreme Court as "an intellectual feast."
      Gorsuch came off instead in his five minutes of prime-time on Tuesday night as a judge's judge: modest in speech and demeanor and committed to following the law without respect to personal beliefs. A judge who rules only in favor of policies he favors, Gorsuch said, would be "a bad judge."
      Trump began introducing Gorsuch by listing his academic credentials: Columbia, Harvard Law, and Oxford:  "as good as I have ever seen," he said. Perhaps, but Garland in fact had a stronger resume: summa cum laude graduation from Harvard College and magna cum laude graduation from the law school after serving as managing editor of the Harvard Law Review.
      Based on his judicial record, Garland also had a stronger claim on the seat than Gorsuch can claim: 19 years' experience on the federal appeals court for the District of Columbia Circuit, with a record as a judicial moderate and vocal praise from senators from both parties. Trump depicted Gorsuch as a bipartisan choice based on his voice vote Senate confirmation for the Tenth Circuit back in 2006. In truth, however, Gorsuch was approved for the lifetime seat with little close attention from senators or the general public; and, despite his protestations Tuesday night, Gorsuch's rulings over a decade on the bench seem to reflect strongly conservative views of law and policy.
      Democrats and liberal groups began trying to paint that picture of Gorsuch's record even with the prime-time announcement not yet over. "A disastrous decision," proclaimed Nan Aron, executive director of the liberal Alliance for Justice. She elaborated later by saying that Gorsuch would not offer "an independent check on the dangerous impulses of this administration" and would favor "powerful special interests" over "the rights of everyday people."
      The Center for American Progress (CAP) similarly depicted Gorsuch as pro-business by referencing his view, as urged by business groups, for cutting back a 30-year-old precedent that legal experts know as Chevron deference limiting courts' power to overturn administrative agency regulations. The group also noted, without specifics, that Gorsuch has ruled against workers claiming job discrimination.
      Both CAP and the abortion rights group NARAL pointed unfavorably to Gorsuch's dissenting opinion at the Tenth Circuit in the so-called Hobby Lobby case in favor of allowing religiously motivated private employers an exemption from the contraception coverage mandate adopted as part of Obamacare. At the Supreme Court, however, a 5-4 majority in 2014 adopted the position that Gorsuch had taken in dissent.
      If confirmed, Gorsuch would fit comfortably with the court's conservative bloc and return the court to the 4-1-4 alignment that prevailed before Scalia's death. He would come to the court as the first ex-law clerk to have served not one but two justices. A fourth-generation Coloradan, Gorsuch was selected as a Supreme Court law clerk by fellow Coloradan Byron R. White as White was about to retire. He served in the retired justice's chambers, but in line with common practice White lent him to an active justice, Anthony M. Kennedy. Legal conservatives now hope that Gorsuch's connection can help pull Kennedy back toward the right.
      As an ex-law clerk, Gorsuch could hit the ground running if confirmed. He is described as an active questioner from the bench and thus seems likely to join the other recently named justices — Alito, Sotomayor, and Kagan — in making his presence felt during oral arguments even as a junior justice. Gorsuch is also praised for opinion-writing with an eye to accessibility and readability, making him a potential rival of Roberts and Kagan for the title of best writer on the court.
      Outnumbered 52-48, Democrats have their work cut out for them in trying to block the nomination. Based on confirmation fights for Trump nominees so far, Republicans seem quite likely to stick together and they would need to peel off only eight Democrats to get the 60 votes needed to overcome a Democratic filibuster. And Democrats perhaps should worry about the risks of getting what they ask for. After Bork's defeat, Reagan eventually turned to the more moderate Kennedy. If Gorsuch were to be blocked, Trump seems quite unlikely to move toward the center but likely instead to to double down with an equally or even more conservative choice.