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State Supreme Court rules retroactive application of teacher tenure repeal is unconstitutional

State-Supreme-Court-400The state Supreme Court ruled unanimously today that the repeal of North Carolina’s teacher tenure law could not be retroactively applied to those teachers who had already achieved that status.

“We conclude that repeal of the Career Status Law unlawfully infringes upon the contract rights of those teachers who had already achieved career status,” Justice Robert Edmunds wrote for the Court. “As a result, we hold that sections 9.6 and 9.7 are unconstitutional, though only to the extent that the Act retroactively applies to teachers who had attained career status as of 26 July 2013.”

Under North Carolina’s “Career Status Law,” teachers in their first four years were deemed “probationary” and employed year-to-year under annual contracts. At the end of the four-year period, they became eligible for career status, giving them rights to continuing contracts and due process protections from arbitrary or unjustified dismissals.

In summer 2013, lawmakers enacted a repeal of that law in an effort to rid the state of tenure by 2018, saying that it enabled bad teachers to stay in the system.

They eliminated tenure for teachers who had not reached career status by August 2013 and revoked career status for all teachers by July 2018.

As an enticement for already-tenured teachers to act sooner, lawmakers also required local school boards to offer 25 percent of them temporary 4-year contracts with annual raises of $500 in exchange for giving up their tenure rights early.

In May 2014, Superior Court Judge Robert H. Hobgood ruled that the revoking of tenure for teachers who’d already reached career status was unconstitutional, as was the “25 percent” plan, which Hobgood said included no standards to guide school districts and served no public purpose.

As to teachers who had not yet achieved career status, though, Hobgood found that they had no protectable contract rights and thus could not challenge the repeal.

In June 2015, the Court of Appeals largely agreed with Hobgood’s ruling, with Judge Chris Dillon issuing a separate opinion in which he agreed only with the lower court’s finding that tenured teachers had property rights warranting a hearing in the event they were dismissed (something the repeal did not allow).

Read the Supreme Court’s full opinion here.

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News

SCOTUS rejects challenge to “one person one vote” doctrine applicable in the drawing of state legislative districts

Supreme courtWho should states count when tabulating populations for redistricting purposes?

In an 8-0 decision written by Justice Ruth Bader Ginsburg, the U.S. Supreme Court today upheld the “one person one vote” concept applicable in the drawing of legislative districts, holding that constitutional history, precedent, and practice permit a state or locality to draw its legislative districts based on total population.

Writing for the Court in Evenwel v. Abbott, Ginsburg said:

As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.

Justices Clarence Thomas and Samuel Alito wrote separate opinions concurring in the judgement of the court.

Typically states have counted the total population, giving all people equal representation. Voters in rural Texas however challenged that process in Evenwel, contending that by including non-eligible voters – those who aren’t citizens, for example, or those who’ve been in prison – in a district’s total population, the state gives greater weight to the far fewer votes that would be cast in such districts. They argue that instead each vote should be equal and that population count should be based on eligible voters only.

In 1964, the U.S. Supreme Court rejected an Alabama redistricting plan which allotted just one representative to heavily-populated and sparsely-populated districts alike, ruling in Reynolds v. Sims that under the “one person, one vote” concept of equal representation, legislative districts should have roughly equal populations. The high court had not, however, dictated how states should count population for purposes of drawing state legislative districts.

Many voting law experts predicted that a ruling in favor of the challengers would lead to a shift in political power from urban diverse areas to suburban and rural ones would follow.

Others added that a switch to limiting population to eligible voters played into the politics of those lawmakers set on suppression through voter ID and other measures.

In more blunt terms, Election Law Blog’s Rick Hasen had called the case “an attempted Republican power grab in Texas and other jurisdictions with large Latino populations.”

Today’s opinion is significant not only for its affirmation of the concept of “equal representation” but also for its restraint, as Hasen notes in his analysis:

Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for plaintiffs. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.

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News

Legal challenges to House Bill 2 quick to follow

signage2At one point during the debate yesterday over HB 2, the bill that essentially rids the state of all non-discrimination ordinances, one conservative lawmaker defended his colleagues’ rush to convene and render the new law as necessary to head off lawsuits — as if they weren’t coming anyway.

It may have taken only less than half a day for state conservative lawmakers to ram through the bill and for the governor to sign it, but it took only minutes for advocacy organizations to then announce that litigation would quickly follow.

“Today was a devastating day for LGBT North Carolinians and particularly our transgender community members who have been subjected to months of distorted rhetoric culminating in today’s display of bias and ignorance by North Carolina lawmakers,” ACLU of North Carolina Legal Director Chris Brook said in a press release sent out a little after 10:30 last night.

“The ACLU, Lambda Legal, and Equality NC are reviewing all options, including litigation.”

“This cruel and insulting bill is about more than bathroom access, it’s about fairness in employment, education, and local governance,” Chris Sgro, Executive Director of Equality NC added.

“It aims to override local school board policies, local public accommodations laws, and more. This law also violates many other federal statutes and the United States Constitution by attempting to mandate discrimination in government buildings.”

A legal challenge to a similar law in Virginia has already progressed through federal courts there, with a decision from the 4th U.S. Circuit Court of Appeals likely soon.

In that case, a transgender high schooler sued the local school board after it adopted a new policy requiring all students to use either bathrooms aligning with their birth sex or newly-created unisex bathrooms. The student has contended that the policy violated Title IX prohibitions against discrimination on the basis of sex and 14th Amendment equal protection provisions.

The school board argued that because any student can use the unisex bathrooms it is treating all students equally.

In reality, though, students who identify with their birth sex have two choices: use the bathrooms aligning with that birth sex or use the unisex bathrooms.

Transgender students however have only one choice – the unisex bathrooms.

“We expect the ACLU’s and Lambda Legal’s Legal Help Desks will light up with calls from those who suffer discrimination imposed by this law, and we stand ready to help,” Tara Borelli, Senior Attorney with Lambda Legal, said in the release.

”This law is in direct conflict with protections provided to students under Title IX and could cause the state to lose billions in federal funds. Instead of solving any real problems, the law would create new ones and could lead to intolerable and unfair conditions for transgender students who are entitled, by federal law, to a safe and equitable education.”

Of course, HB 2 wasn’t only about bathrooms and the transgender community.

The bill also bans all local nondiscrimination ordinances, shuts down recourse to state courts for those with discrimination claims and prohibits local governments from mandating wages higher than those required by the state.

Plenty of fodder for more lawsuits.

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News

Contraceptive mandate at the Supreme Court – again

Just weeks after hearing argument over states’ TRAP laws (“targeted regulations against abortion providers”), the U.S. Supreme Court ventures back into the reproductive rights arena tomorrow morning, taking on yet another challenge to the Affordable Care Act’s contraceptive mandate.

The case, Zubik v. Burwell, is an effort to further push the limits of religious liberty already extended by the justices in their 5-4 ruling in Hobby Lobby, in which they held that for-profit companies whose owners objected to birth control on religious grounds were exempt from the Affordable Care Act’s contraceptive mandate.

In seven separate cases consolidated by the court under Zubik, hospitals, universities, nursing homes, and other religious nonprofits already exempt from the mandate are challenging the requirement that they notify their insurers of their religious objections to providing contraceptives. That notification, which enables the insurers to then provide the contraceptives directly to the employees, is an act which the challengers say is tantamount to their own provision of contraception and thus violates their religious beliefs.

The arguments in Zubik demonstrate just how distorted notions of “religious liberty” have become in recent years, according to Adam Sonfield of the Guttmacher Institute.

“Social conservatives have pulled together many of their long-standing political demands—targeting reproductive health and LGBT rights, most prominently—into an overarching campaign couched in the language of religious liberty,” Sonfield wrote in a recent report for the Institute.

And the conservatives on the Supreme Court have taken that bait, according to former Solicitor General Walter Dellinger. In a recent Center for American Progress forum on the Supreme Court term, Dellinger said that cases like Hobby Lobby reveal a court moving from allowing groups to avoid obligations because of religious beliefs to allowing groups to impose and burden others because of those beliefs.

Pro Publica has a great primer on what’s at stake in the case, along with answers to some of the most common questions, here.

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News

SCOTUS gives class action plaintiffs a break

Supreme courtClass action plaintiffs lawyers can breathe a bit of a sigh of relief today as the U.S. Supreme Court handed down a decision in one of several class action cases before the court this term, ruling in Tyson Foods, Inc. v. Bouaphakeo that in certain circumstances representative and statistical evidence can be used to establish classwide liability.

With the ruling, the high court disabused attorneys of the notion that its 2011 decision in Wal-Mart Stores Inc. v. Dukes precluded the use of any such evidence in class actions. In Wal-Mart, the court rejected a class of more than a million female employees claiming pay discrimination, with a majority of the justices finding that the women had distinct and different employment experiences and thus lacked the commonality needed to proceed as a class.

In Tyson Foods, some 3,000 hourly workers at an Iowa pork processing plant sued the company, alleging that the company failed to pay them for time spent “donning and doffing” protective equipment and walking to and from the job floor. The district court certified the workers as a class based upon the common question of whether those activities constituted compensable work, despite differences in the amount of time workers spent on these tasks, and allowed the workers to prove their case with statistical evidence of the time an average employee would spend donning and doffing — gleaned from their expert’s filming and timing of workers doing just that.

Tyson Foods argued that the court’s decision in Wal-Mart limited the use of that evidence.

Rejecting Wal-Mart as setting down such a bright line test and writing for a majority that included Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan,  Justice Anthony Kennedy said:

[T]he Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class action cases. Evidence of this type is used in various substantive realms of the law. Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on the elements of the underlying cause of action.

Read the full decision here.