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Posts by Anne King

May 18

Fairness in the Workplace

Posted 3 days ago by Anne King

A recent paper by Ellen Berry, Steve Hoffman, Laura Beth Nielsen (Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation) is well worth a read for anyone sympathetic to the challenges employment discrimination plaintiffs face in securing justice in court.  The authors interviewed numerous plaintiffs and defendants’ representatives to gain a sense of whether the parties view employment discrimination as fair.  It’s an unusual approach to assessing fairness in our justice system, and one that sheds important light on the differences between plaintiffs’ and defendants’ conceptions of fairness.  Read more

Apr 20

Will the Handcuffing of a Kindergartner Bring Greater Scrutiny of the School to Prison Pipeline?

Posted 31 days ago by Anne King

When police handcuffed Salecia Johnson, a Georgia kindergartner, at her school this week, the incident sparked outrage nationwide.  Criticism has focused on both school personnel — who called the police when the six-year old had a tantrum at school — and the local police — who defended their actions by claiming that department policy requires handcuffing of anyone taken into custody.

Unsurprisingly, Salecia’s family has said that the experience was very traumatic for the six-year-old girl.    But perhaps the incident will bring greater attention — and scrutiny — to the problem of the school to prison pipeline.  The “pipeline” refers loosely to the phenomenon of school policies and practices that establish a police or police-like presence in educational settings, rely on law enforcement for school discipline, saddle youth with criminal records for conduct that occurred at school, and, generally speaking, create a strong connection between the school system and the criminal justice system.

Much attention has focused on the pipeline problem for older students, especially disciplinary alternative programs and the police/security presence at high schools.  (I covered a few examples of legal scholarship on the school to prison pipeline in a recent post at this blog.)  Indeed, a 2011 study by Pediatrics found that 30 percent of young adults surveyed reported being arrested by the age of 23.  (The survey didn’t include minor traffic offenses.)   This was a significant increase from the findings of a similar survey in the 1960’s, and observers suggest the increase is connected to the rise of no tolerance policies in schools.

What happened to Salecia Johnson is particularly shocking because of her young age and the severity of the police conduct.  But it will be important for advocates to emphasize that her story isn’t anomalous, or even unusual; instead, it’s part of a much broader phenomenon that has reached systemic proportions.

Apr 13

Examining the Facts in the Cavazos v. Smith and Connick v. Thompson Dissents

Posted 38 days ago by Anne King

The first decision of the Supreme Court’s 2011 Term, Cavazos v. Smith, which involved the tragic case of Shirley Ree Smith and her family, is back in the news.

Ms. Smith was convicted in the 1997 death of her seven week old grandson.  Prosecutors had argued that the baby’s death resulted from “shaken baby syndrome.”  The Ninth Circuit decided that habeas review was warranted because of significant problems with the evidence presented at trial, but the Court issued a summary reversal without oral argument. Read more

Apr 6

Post-Elections Tweets — Navalny’s Tweets From Jail and Barry’s “Twags”

Posted 45 days ago by Anne King

The Twitter effect in politics is now undeniable. In the Arab Spring movements, Twitter and other social media tools made a vital contribution given their ability to disseminate news and connect individuals across class, cultural, and other barriers. (And more infamously, Twitter was responsible for the fall of a congressman.)

Recently, post-election tweets by two Twitter users from very different political arenas caught my eye — and the attention of many other observers. Aleksei Navalny (@navalny) is an influential Russian blogger who is extremely critical of the current government and the country’s widespread corruption. Marion Barry (@marionbarryjr) is the former mayor of Washington, DC and current representative for Ward 8 on the DC City Council. Read more

Mar 30

More on the Affordable Care Act Arguments — Commerce Clause Angles from the Amici

Posted 52 days ago by Anne King

Back when the Supreme Court granted cert in the Affordable Care Act cases, there was much speculation on how, precisely, the Justices would view the minimum coverage provision of the statute under the Commerce Clause power.  In two earlier posts (here and here), I highlighted several interesting (and less discussed) angles on the Commerce Clause discussed in three of the amicus briefs submitted in the Courts of Appeals cases.  Those same amici – a group of states supporting ACA, plus the National Women’s Law Center (NWLC)* and the American Association of People with Disabilities (AAPD), both on behalf of a number of organizations – also chimed in once the litigation reached the Supreme Court

As David Yin wrote here earlier this week, it’s debatable whether the Justices’ questioning at this week’s oral arguments reveal much about the ultimate decision.  Yet I was interested to see whether the amici’s Commerce Clause angles would crop up.  Amicus briefs arguably have greater significance in a case of this complexity, because they permit exposition of important legal and policy arguments outside the primary scope of the parties’ briefs. Read more

Mar 5

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Retiring McDonnell Douglas

Posted 77 days ago by Anne King

In a recent Title VII decision, Coleman v. Donahoe, Judge Diane Wood wrote a very interesting special concurrence calling for the end of the McDonnell Douglas burden shifting framework.  (The Outten & Golden Employment Law Blog recently highlighted the Wood concurrence.) McDonnell Douglas v. Green established the familiar three-step framework for proving employment discrimination under Title VII and analogous civil rights laws. In the first step, the plaintiff establishes a prima facie case of discrimination. The burden of production then shifts to the employer for the second step, at which point the employer must proffer a nondiscriminatory reason for the adverse employment action. The employee bears the burden of production for the third step, which requires a showing that the employer’s nondiscriminatory reason is actually a pretext for discrimination.

In announcing the McDonnell Douglas approach, the Supreme Court’s intention was to assist plaintiffs by setting out a roadmap for proving employment discrimination via circumstantial evidence.  But in practice the rigidity of McDonnell Douglas burden shifting all too often creates barriers for plaintiffs, because good evidence of discrimination won’t always fit neatly into the three-step framework. Read more

Feb 7

One Approach to Reforming DC Schools

Posted 104 days ago by Anne King

A new report recommending reforms in DC schools leaves some students out.

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Jan 27

Maryland Higher Education Goes to Trial

Posted 115 days ago by Anne King

A bench trial in The Coalition for Equity and Excellence in Maryland Higher Education vs. Maryland’s Higher Education Commission began on January 3 in the Baltimore district court.

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Jan 19

Hosanna-Tabor and the Court’s Retaliation Decisions

Posted 123 days ago by Anne King

Last week the Supreme Court decided Hosanna-Tabor Evangelical Church and School v. EEOC, recognizing a ministerial exception to the Americans with Disabilities Act’s anti-retaliation provision under the First Amendment. The Court also held that the ministerial exception applied to Cheryl Perich, a teacher at a church-based school who threatened to bring an ADA claim.

The ADA and other workers’ rights statutes prohibit employer retaliation against an employee for protected activity, such as filing a discrimination claim. Normally, a retaliation case involves a pretext analysis, because the employer rarely admits that retaliation was the reason for an adverse employment action. Instead, an employer might cite performance, or perhaps insubordination, and the employee has to show that protected activity was the actual motivator.

But Hosanna-Tabor is very different, because the church acknowledged terminating Perich because of what would normally count as protected activity. As Justice Alito’s concurrence summed it up, “Hosanna-Tabor discharged [Perich] because she threatened to file suit against the Church in a civil court. This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. In Hosanna-Tabor’s view, [Perich’s] disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith.” That is, the church acknowledged conduct amounting to retaliation, but the church’s right to make that decision implicates the Free Exercise and Establishment Clauses. Read more

Jan 13

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School-to-Prison-Pipeline Scholarship Roundup

Posted 129 days ago by Anne King

Christopher Emdin’s thoughtful recent piece on arrests in public schools inspired me to put together a roundup of recent scholarship on the school-to-prison pipeline. All of these pieces are sobering reads, but the authors offer concrete ideas for how we can begin to dismantle the pipeline

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