Supreme Court will hear arguments on whether to question official in 2020 census lawsuit

U.S. Supreme Court


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The U.S. Supreme Court today agreed to hear oral arguments in an ongoing battle over whether Commerce Secretary Wilbur Ross should be questioned under oath about his decision to add a citizenship question to the 2020 census.

The Washington Post, SCOTUSBlog and the Hill reported that oral arguments on that subject will be held February 19.

The underlying dispute is over whether the decision to ask people about their citizenship as part of the census was politically motivated. The Commerce Department, which oversees the census, says it was added at the request of the Justice Department as a way to gather data that could help enforce the Voting Rights Act. The plaintiffs in the six lawsuits challenging it say the decision was political—asking about citizenship will discourage immigrant households from participating at all, they say.

That will likely result in an undercount in immigrant-heavy areas; chief Census Bureau scientist John Abowd has testified at a deposition that the question could reduce the noncitizen household response rate by 5 percent or more. Plaintiffs say it’s not a coincidence that those areas tend to vote for Democrats. An undercount would result in fewer Congressional representatives in those areas, and likely the loss of some federal resources.

The plaintiffs in the case the Supreme Court took want to question Ross and John Gore, the acting head of the Justice Department’s civil rights division, about information outside the written record. During discovery, they found evidence that Ross consulted former White House advisor Stephen Bannon and former Kansas Secretary of State Kris Kobach prior to making the decision.

The federal government, opposing the request, characterized it as “an intrusive fishing expedition” and said the case should rely only on the agency’s records.

Two of the cases are consolidated and currently in trial in New York federal court. The Supreme Court declined to block that trial earlier this month. In October, the high court did block a deposition of Ross, but permitted a deposition of Gore.

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New database tracks the prosecution of right-wing extremists

Criminal Justice

Right-wing extremists protest in Charlottesville

Right-wing extremists, white supremacists and neo-Nazis demonstrated in Charlottesville, Virginia, at the Unite the Right rally on Aug. 12, 2017. (Photo by Kim Kelley-Wagner /

A new online data project is tracking far-right extremism by collecting and aggregating federal and state criminal cases against extremists, including white supremacists and neo-Nazis.

Launched three weeks ago, First Vigil is the creation of Emily Gorcenski, a data scientist and activist. For her, the project was, in part, about her experience as a counter-protester at last year’s Unite the Right march in Charlottesville, Virginia.

A fellow counter-protestor, Heather Heyer, was killed and dozens were injured when a car was driven into a crowd opposing the right-wing march. James Alex Fields was identified as the driver; he has been charged with first-degree murder and multiple charges of malicious wounding, and his state trial is scheduled for Nov. 26 to Dec. 14, NBC 29 reports.

While at the protest in her hometown, Gorcenski and another protester were pepper-sprayed by Christopher Cantwell, one of the event’s speakers and an outspoken white supremacist. He later plead guilty to misdemeanor assault and spent three and a half months in jail.

“It’s a very brutal process to be a victim in the criminal justice system,” she tells the ABA Journal. As she went through her process, she started watching other cases stemming from the event and realized they was hard to track.

“What we wanted was a shared resource where people could visualize what’s going on,” she says of the various trials her and her partners were watching.

First Vigil follows the lifecycle of state and federal criminal cases against those known for their affiliation with right-wing extremist groups. Already tracking 75 cases pertaining to 54 defendants dating back to early 2017, she says it’s been a challenge to standardize the information she is pulling from federal, state and local data sources.

However, she hopes that the new project can be a resource for journalists, researchers and victims assaulted by right-wing extremists. She also thinks having the information in one place can help breakdown the idea that violent attacks like Dylann Roof’s massacre of black churchgoers in South Carolina or alleged shooter Robert Bowers’ attack on the Tree of Life synagogue in Pittsburgh are not a series of lone wolf attacks, as they are often portrayed.

Instead, Gorcenski says that perpetrators of these crimes are a part of a well-networked movement, often talking on the same online forums and attending the same events.

The database “can be used to tell the story about white supremacy more accurately,” she says.

According to Heidi Beirich, director of the Southern Poverty Law Center’s Intelligence Project, which tracks right wing extremists and domestic terror incidents, Gorcenski’s work is unique.

“There hasn’t been—up until now—a place where all these prosecutions were in one location,” she says. “She’s made it simpler for all of us to really see what’s going on by going to one location.”

The collection of this data is rare in part because there are roadblocks to access and it’s hard to collect disparate cases across multiple jurisdictions.

Charles Kurzman, a professor at the University of North Carolina at Chapel Hill who studies this issue, says that “the DOJ doesn’t release the docket numbers for domestic cases in the way that it releases international terrorism cases,” which makes it difficult to know the death toll and other information related to the 1,441 federal prosecutions of domestic terrorism in the past 16 years.

He and the Brennan Center for Justice at the New York University School of Law submitted a Freedom of Information Act request earlier this year for the docket numbers of those cases and were denied. They are now suing the DOJ for that information.

Other state and federal law enforcement agencies have been insufficiently tracking this issue, according to recent reporting from the New York Times. In the piece, a police lieutenant from Gainesville, Flordia, looking for law enforcement reports on right-wing extremism called what he found a Bermuda Triangle of intelligence.

Since 9/11, law enforcement has prioritized counterterrorism focused on foreign nationals and Islamic extremists. Even with more attention, tracking these prosecutions is hard because many cases are not labeled as “domestic terrorism,” which means that a simple keyword search is not possible. Instead people are charged with a plethora of drug, weapons and violent crimes, and their ties to extremist groups may not come up in the charging documents or at trial.

At the same time, hate crimes generally are on the rise. The FBI’s recent Uniform Crime Reporting Program’s annual Hate Crime Statistics were released on Tuesday, showing the number of hate crimes reported in 2017 were up 17 percent over 2016. Even with an increase, this number is likely low due to underreporting by victims and law enforcement. The report defines a hate crime as “a committed criminal offense which is motivated, in whole or in part, by the offender’s bias(es) against a race, religion, disability, sexual orientation, ethnicity, gender or gender identity.”

At an event on Oct. 29, Deputy Attorney General Rod Rosenstein said that 88 percent of agencies that provide hate-crimes data to the FBI reported zero hate crimes in 2016. He added that the DOJ was reviewing the accuracy of the reports and that “simply because hate crimes are not reported does not mean they are not happening.”

The U.S. Department of Justice’s hate crime victimization survey published in 2017 found that there were likely 250,000 hate crimes every year from 2004 to 2015. The report defined a hate crime as “incidents confirmed by police as bias-motivated and incidents perceived by victims to be bias-motivated because the offender used hate language or left behind hate symbols.”

With limited and varied data collection, it has been hard to track the impact of particular policies or law enforcement approaches, says Beirich at SPLC.

With the First Vigil project, she says researchers will be able to answer questions regarding the case outcomes of right-wing extremists, like whether or not they receive similar conviction rates or punishments as Islamic extremists. As the database grows, it may also help shine a light on larger, systemic issues, like the impact of the Department of Homeland Security’s decision in 2010 to close its Extremism and Radicalization Branch, as the New York Times reported at the time. The branch came under fire from the political right after issuing a report on the growing anti-government movement at home and potential radicalization of returning veterans.

Currently the driving engine behind the project, Gorcenski is continuing to add cases and increase the features on the website, which she says will include a gallery of photos and video showing a defendant’s affiliation with an extremist group.

Not an attorney herself, she’s looking for help, including from lawyers, who can provide legal context for the cases she tracks.

In the meantime, Gorcenski has moved to Germany and is settling into her new life in Berlin. She left Charlottesville because she faced threats to her personal safety due to her work. Even at a distance, though, her experiences continue to embolden her.

The threats are “proof we need tools like this to monitor these types of individuals,” she says. “In the long term, [First Vigil] will hopefully have the intended effect of limiting white nationalist violence against all people.”

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ABA legal ed council sends bar-passage standard back to House of Delegates

Legal Education

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Paperwork for the ABA’s House of Delegates to again consider a proposed revision of the bar passage standard for law school accreditation has been submitted, said Barry Currier, director of accreditation and legal education, on Friday at a council meeting for the Section of Legal Education and Admissions to the Bar.

The council would like the delegates to reconsider the proposed revision at the January 2019 Midyear Meeting. Rejected by the House in 2017, the proposal calls for a bar passage rate of at least 75 percent within two years. Language for the proposed revision remains unchanged, Currier said.

There are various ways to meet the standard’s current requirements, and it’s been reported that no law school has ever been out of compliance with it.

During the council’s Friday open session in Atlanta, Currier said some things have changed in legal education since the proposal was first submitted to the House. More jurisdictions are now using the uniform bar exam, according to him, and several jurisdictions have lowered bar exam cut scores.

A council memo addressing diversity concerns about the proposed revision, as well as what it would mean for law schools in California, where the cut score of 144 is the nation’s second highest, is posted on the section’s website.

In addition to Standard 316, the council briefly addressed in open session a standards review committee memo about potential revisions it may want to consider. A motion passed to have further discussion about that sometime next year.

Included in the memo is a suggestion that the council consider allowing further review of an accreditation compliance decision beyond what is covered in the appeals process. Under the current rules, a law school can take a council decision to an appeals panel whose members are appointed annually by the council chair. Following a hearing, the panel has the authority to affirm, reverse or amend the decision, or remand the decision to the council for further consideration.

The memo also suggests reviewing teach-out rules for ways the process could be made easier for law schools that are closing and to consider adding a rule where law schools that sue the council or the ABA regarding accreditation matters are responsible for attorney fees if the lawsuits are unsuccessful.

In the past year, four law schools sued the ABA after public notice was made about the schools being out of compliance with accreditation standards. One, filed by Western Michigan University Thomas M. Cooley Law School, settled in October, and the other three, filed in May by for-profit InfiLaw schools, remain open.

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Education Department announces new rules on handling campus sexual assault

Education Law

U.S. Education Secretary Betsy DeVos.

Secretary of Education Betsy DeVos has released new guidance for how colleges and universities should handle sexual assault and harassment, the Washington Post and NPR report.

A year after rescinding Obama-era regulations on the subject, the Department of Education has replaced them with rules that expand the rights of accused students and narrow the types of cases that universities are required to investigate. The public will have 60 days to comment on the proposal, as required under the Administrative Procedure Act, before the rules are final.

“The proposed regulation is grounded in core American principles of due process and the rule of law,” the Post quoted the Education Department as saying. “It seeks to produce more reliable outcomes, thereby encouraging more students to turn to their schools for support in the wake of sexual harassment and reducing the risk of improperly punishing students.”

The rules are an attempt to implement Title IX of the Education Amendments Act of 1972, which bars gender discrimination in education when the institution is receiving federal funding.

The rules change the legal standard for proving allegations, from a “preponderance of the evidence” to “clear and convincing evidence.” Students also have the right to cross-examine one another, although they must do that through lawyers or other third parties. Both parties have the right to an attorney. Investigations must be “reasonably prompt”—a less strict standard than the Obama administration’s call for specific time limits.

Schools are encouraged to provide support to victims, but any such support must not burden or punish the accused unless and until there’s a finding that the accused is at fault. NPR said this could mean that a no-contact order applies to both parties equally.

The new proposed rules also narrow the definition of sexual harassment. The Obama-era guidelines called sexual harassment “unwelcome conduct of a sexual nature.” The Trump administration’s proposal calls it “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s educational program or activity.” The department cites U.S. Supreme Court precedent as a basis for the narrower definition.

And only allegations reported to designated administrators are required to be investigated. Furthermore, colleges and universities would not be obligated to investigate reports when the alleged victim doesn’t want them to. That rule does not apply to elementary and secondary schools, according to the Washington Post.

NPR noted that some colleges and universities may welcome the clarity provided by the rules, particularly because they came through a formal rulemaking process, unlike the Obama-era rules. The Washington Post noted that men’s rights groups and conservative legal scholars were critical of the prior rules. The conservative Foundation for Individual Rights in Education also praised the rules.

“By taking the rights of both complainants and accused students seriously, these proposed regulations make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged,” said Samantha Harris, vice president for procedural advocacy at FIRE, in a statement.

But the response from victim advocates and women’s groups was less positive. End Rape on Campus called it a move “to silence survivors” that would result in fewer reports and greater numbers of victims not finishing their educations.

The American Association of University Women said the new rules were “completely at odds” with Title IX. “Any action that limits recourse for students who experience sexual harassment or assault in schools is flat-out wrong,” said AAUW CEO Kim Churches in a statement.

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Judge dismisses whistleblower lawsuit against ABA and Charlotte School of Law

Law Schools

A Florida judge has thrown out the remaining claims in a lawsuit alleging that the now-closed Charlotte School of Law flouted accreditation standards—and that the ABA should never have accredited the school in the first place. has the story.

U.S. District Judge Roy Dalton Jr. of the Middle District of Florida said former Charlotte law professor Barbara Bernier hadn’t adequately fixed the problems with her original complaint, despite adding the ABA as a defendant. Bernier’s claims that the for-profit school and its parent company were defrauding the federal government failed to state a claim, and in any case were procedurally barred by the False Claims Act’s prohibition against copycat lawsuits.

The suit also contains state-law negligence claims, which include the claims against the ABA. Dalton wrote in his opinion that those claims were not enough by themselves to keep the case in federal court. He dismissed them without prejudice.

“No federal claim will continue here, and plaintiffs’ claim against the ABA, like the other state-law claims, just arrived,” the judge wrote. “Plus, the claim presents a pretty run-of-the-mill negligence question; it’s not wrapped up in a federal issue that would lean in favor of resolution by a federal court.”

Barry Currier, the ABA’s managing director of accreditation and legal education, said in a statement that the ABA welcomed the ruling.

“We never thought we should have been part of it,” he said. “We will continue to serve the best interests of students and the public through the ABA law school accreditation process, which has repeatedly been upheld by courts and has been approved by the U.S. Department of Education.”

Bernier was a professor at the Charlotte School of Law, recruited from a tenured position at a traditional nonprofit law school to work at the for-profit school. Her lawsuit alleged that the school was ignoring certain accreditation standards to maximize its profits. That includes admitting students with bad grades and little chance of passing the bar; discouraging students from taking the bar—even paying them to skip it—if they seemed likely to fail; and hiring students into meaningless jobs to inflate graduates’ employment rates.

The school failed to disclose this to the federal government, thus defrauding the government’s student loan program, Bernier claimed. The ABA contributed by accrediting the Charlotte School of Law, she claimed in her amended complaint, thus making it possible for students to take out federal loans. Plaintiff Ese Love, a former Charlotte student, said in the amended complaint that she had more than $350,000 in student debt from a discredited school.

Multiple former students are separately suing the school.

The Charlotte School of Law is one of three schools run by for-profit parent company InfiLaw, all three of which have encountered accreditation problems in recent years. The Arizona Summit Law School in Phoenix is scheduled to close at the end of spring 2020. The Florida Coastal School of Law in Jacksonville, Florida, remains open, but the ABA Section of Legal Education and Admissions to the Bar affirmed in September its finding that the school is out of compliance, over the school’s vigorous objections. All three schools have sued the ABA, arguing that the legal ed section’s Accreditation Committee has denied them due process.

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