Civil Liberties

August 7, 2013

Third Circuit Upholds Girls’ Free Speech Rights in School

In September 2011, just before I stepped down as Pennsylvania NOW President, PA NOW along with the Feminist Majority, Legal Momentum, and several other feminist organizations signed onto an amicus brief written by the Women’s Law Project in support of two middle school girls from the Easton Area (PA) School District who participated in a youth breast cancer awareness program by wearing “I ♥ boobies” breast cancer awareness bracelets to school.

"I ♥ Boobies" bracelets made by the Keep a Breast Foundation

Sample “I ♥ Boobies” bracelets that were banned by the Easton Area School District; photo courtesy of Keep a Breast Foundation

Kayla Martinez and Brianna Hawk, then seventh and eighth graders, were suspended for wearing Keep A Breast bracelets on Breast Cancer Awareness Day.  Subsequently the school district instituted a district wide ban on the bracelets because they were supposedly “lewd” statements about women’s bodies.  These young women, citing 1st Amendment rights, refused to take them off and then filed suit through their parents after the district-wide ban was instituted.

On August 5, 2013, the 14-member 3rd Circuit Court of Appeals, in a 9-5 en banc decision, upheld the District Court injunction against this ban on educational free speech.  They looked at the question of whether or not speech about women’s bodies and their health “could [be] interpret[ed] as lewd, vulgar, profane, or offensive [when that] speech could also plausibly be interpreted as commenting on a political or social issue.”  The court decided that breast cancer is a social issue exception and thus protected speech.  This means that talk about breasts and breast cancer is protected speech in schools throughout Pennsylvania, Delaware, and New Jersey, the three states that fall under the jurisdiction of the 3rd Circuit Court of Appeals.

According to the Keep A Breast Foundation, the makers of this bracelet, the 3rd Circuit Courts decision

“[M]arks the first time a federal court of appeals has ruled that the First Amendment protects student speech that is plausibly understood as commenting on political or social issues.”

The Court’s bottom-line statement in its en banc decision, I believe, says it all:

“The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health.”

Thanks to Mary Catherine Roper of the ACLU of Pennsylvania  for taking this case to the 3rd Circuit and to Terry Fromson and staff of the Women’s Law Project for working on this issue in support of young women’s free speech rights when talking and taking a stand on their bodies and their health!

May 23, 2013

The Conservative Pot of Anger

IRS Form 990 non-profit form

Form 990 – the IRS tax form used by recognized 501(c) non-profit organizations

For over a week now we have been hearing about the “scandal” within the IRS’s Tax-Exempt division.  Congress has been holding hearings, calling on current and past Commissioners to testify about the additional scrutiny given to Tea Party organizations.  A couple of days ago, I asked if this additional scrutiny was a scandal or not.

In addition to my comments that day, the Guardian has now brought up another issue that may be adding fuel to the conservative f(ire).  That fuel is a four-decade simmering anger at the IRS by the conservative religious right.  An anger fueled by both segregation and religion.

In 1954, the US Supreme Court declared in Brown v. Board of Education that segregation in education was unconstitutional. In 1964, Congress passed the Civil Rights Act that, which among other issues makes discrimination based on race in public accommodations and employment illegal. In 1967, the US Supreme Court declared in Loving v. Virginia that bans on interracial marriage were unconstitutional.  In 1970, the IRS changed their tax-exempt regulation on private schools to reflect these policies.

Bob Jones University had, under pre-1970 regulations been granted tax-exempt status.  In 1970, as a result of the change in regulations, the IRS notified Bob Jones University that they intended to revoke the university’s tax-exempt status because of their segregationist policy of initially not admitting blacks and then, later of not admitting or expelling students who entered into, engaged in, or advocated for interracial marriage or dating.

Bob Jones University felt that they had a “biblical” right to discriminate.  So they filed case after case to overturn the IRS revocation.  Finally in 1983, in Bob Jones University v. United States, the US Supreme upheld the IRS revocation of Bob Jones University’s tax-exempt status because of its segregationist policies.

The Justices disagreed with Bob Jones’ biblical interpretation of the competing First and Fourteenth amendments to the US Constitution.  In looking at both amendments, they first declared that there is strong governmental interest in ending discrimination:

[The] Government has a fundamental, overriding interest in eradicating racial discrimination in education 29 – discrimination that prevailed, with official approval, for the first 165 years of this Nation’s constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.

Then, citing the aforementioned cases (and others), the Court held stated:

An unbroken line of cases following Brown v. Board of Education establishes beyond doubt this Court’s view that racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals.

The Court then pointed out that this IRS regulation was still constitutional even after Bob Jones University opened its doors to people of all races.  The Justices reiterated the lower court decision, stating that the University remained racially discriminatory in its policies at the university in violation of the tax-exempt regulations:

Petitioner Bob Jones University, however, contends that it is not racially discriminatory. It emphasizes that it now allows all races to enroll, subject only to its restrictions on the conduct of all students, including its prohibitions of association between men and women of different races, and of interracial marriage. 31 Although a ban on intermarriage or interracial dating applies to all races, decisions of this Court firmly establish that discrimination on the basis of racial affiliation and association is a form of racial discrimination, see, e. g., Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964); Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431 (1973). We therefore find that the IRS properly applied Revenue Ruling 71-447 to Bob Jones University. 32

The judgments of the Court of Appeals are, accordingly,

Affirmed.

I think that this article in the Guardian is correct.  It might just be another reason for the current tax-exempt status furor.  It seems that pulling the tax-exempt status of a religiously-based institution for its violation of our country’s stance for equality under the 14th Amendment of the US Constitution resulted in a simmering pot of anger just waiting for a bit more fire to bring conservatives to a full boil.

What do you think?  Please comment.  I’d be interested in hearing your opinion.

May 19, 2013

Special Report: IRS Scandal Shakes Washington (OR IS IT?)

I just read this blog by Michael J. Rosen about the extra scrutiny of conservative groups seeking tax-exempt status. I decided to repost his blog with three sets of comments. My comments give thought to three different sets of questions:

  1. What else besides what we’ve heard about might have helped lead to this “scandal?”
  2. Is it really a “scandal?” Do we know?
  3. Is this issue likely to go away soon?

What else might be behind this scandal?

Besides a lack of training and oversight that we’ve heard about, I think another part of this whole problem is the backlog of applications in the non-profit division of the IRS. I talked to them the other day about a non-profit I work with that is attempting to get its 501(c)4 status reinstated due to the 990-N issue. The agent I talked to said that they are getting over 5,000 applications every month and are working on them on a first come, first serve basis.

The IRS website says that with the small staff they have, there is an even greater backlog on applications than what the agent told me. Here’s that IRS statement.

“All [non-profit] applications are sent to the IRS Determinations Office in Cincinnati. This office receives approximately 70,000 applications for tax-exempt status of all kinds each year [that averages out to 5,833 new applicants each month]. This includes applications from section 501(c)(3) and section 501(c)(4) organizations. This office, which includes fewer than 200 people working directly on applications, is primarily responsible for working determination applications.”

The agent helped me to figure out the current status of this VERY SMALL non-profit that I’m working with (if it brings in $400/year for this group, it’s doing well). He told me that the records show that all of the paperwork at our end is basically complete, but the application won’t be reviewed until the office gets to the applications marked as “complete” as of September 2012 (when he says my group officially completed the paperwork). And, directing me to another section of the website, he pointed out that the office is currently working on applications from early May 2012 – i.e., over a 1 year delay in processing!

The aforementioned web page also goes into more detail, from the official IRS viewpoint, of what happened with the Tea Party organizations. It says that approximately 70 Tea Party groups were put into the in-depth “centralized” review; that out of a total of, currently, about 470 organizations being given similar treatment.

Is it a Scandal? Do We Really Know?

A scandal is defined as “a circumstance or action that offends propriety or established moral conceptions or disgraces those associated with it.” A political scandal is “an instance of government wrongdoing” that offends or disgraces those directly associated with that wrongdoing.
In this case, so far, it doesn’t appear to be a scandal that rises to the level of the White House. According to the Washington Post, based on increasing evidence, the IRS issue is very bad press for the Obama administration. According to their report,

If we believe the agency inspector general’s report, a group of employees in a division called the “Determinations Unit…” started giving tea party groups extra scrutiny, were told by agency leadership to knock it off, started doing it again, and then were reined in a second time and told that any further changes to the screening criteria needed to be approved at the highest levels of the agency.

The White House fired the acting director of the agency [this week] on the theory that somebody had to be fired and he was about the only guy they had the power to fire. They’re also instructing the IRS to implement each and every one of the IG’s recommendations to make sure this never happens again.

And from all the evidence obtained so far, there is no evidence of any connection between the “Determinations Unit” and the Obama administration. So unless there is a smoking gun hidden somewhere, there is no political scandal within the White House. Time will tell.

Is this issue likely to go away anytime soon?

No, I personally doubt that the issue will “go away” anytime soon.

Three reasons:

  1. partisan politics to continue attacking Obama’s executive branch;
  2. long history of spying and intrusiveness; and
  3. free-speech issues.

The first issue is purely partisan. Issues that Republicans think will make President Obama look bad are brought up again and again even when the public, to some extent (but not the base) has moved on. Has the Benghazi issue died? How many times will the Republican-dominated House vote to revoke Obamacare before they give up?

The second issue is spying and intrusiveness that, for the first time in a long time, concerns both sides of the aisle. There has been a long history of the feds, usually the FBI, targeting non-profits. Think of the Friends (Quakers) peace-related work for example or the Communist-baiting of the 1950s. Usually it’s the more progressive, left-leaning groups that are targeted. These groups have a long memory and I think may, in this case, support the concerns raised in this non-profit scrutiny case. And since there were progressive groups in this list of targeted non-profits, both sides have some ammunition to push back against the actions of the IRS.

The third is a First Amendment issue. Combine these IRS actions with the free press concerns over the Justice Department’s review of press reporters’ phone logs; both sides have screamed NO. What you have here are two different departments of the executive branch allegedly intruding on the First Amendment: one department—the IRS—may be attacking an individual’s free speech rights and another department—the Justice Department—may be attacking freedom of the press. Both protections are contained within the First Amendment of the US Constitution.

So no, based on all three routes of concern, I don’t think this issue will go away anytime soon.

Michael Rosen Says...

This week, the US Internal Revenue Service acknowledged and apologized for behavior that had long been rumored. The IRS improperly targeted for extra scrutiny conservative groups seeking tax-exempt status.

IRS logoThe IRS did not ultimately deny tax-exempt status to a single group receiving extra scrutiny. Some say this proves that the actions of the IRS were baseless.

The scandal has now shaken the nation’s capital:

President Barack Obama directed Jack Lew, Secretary of the Treasury, to request the resignation of Steven Miller, Acting IRS Commissioner.

Miller resigned and Lew accepted the resignation.

The Justice Department has initiated a criminal investigation.

Exercising its oversight responsibility, Congress has begun its own probe of the IRS scandal.

Obama addressed the nation on television saying, “It’s inexcusable and Americans are right to be angry about it and I am angry about it. I will not tolerate this kind of behavior in any agency, but particularly…

View original post 371 more words

January 17, 2013

Message from VP Joe Biden on Gun Safety

I received an email this morning from Vice President Joe Biden that he wrote yesterday, January 16, 2013 after President Obama announced his Gun Safety Plan called “Now is the Time to Do Something About Gun Violence.”  Here’s the message with his Call to Action:

White House Logo

Hello —

Today President Obama announced a plan to help protect our kids and communities from gun violence. You’re going to hear a lot about it, but I wanted to make sure you got a chance to get the facts, straight from me.

After hearing from Americans from across the political spectrum, we decided to focus on some key priorities: closing background check loopholes, banning military-style assault weapons, making our schools safer, and increasing access to mental health services.

The ideas we sent to President Obama are straightforward. Each of them honors the rights of law-abiding, responsible Americans to bear arms. Some of them will require action from Congress; the President is acting on others immediately. But they’re all commonsense and will help make us a little safer.

Now is the time for all of us to act.

Read about the events that brought us to this point, learn about the plan we’ve proposed to help protect our kids, and then add your name in support to help build momentum for this plan.

Here’s what we’ve put together:

We’re calling for requiring background checks for all gun sales and closing the loopholes that allow dangerous individuals to make their purchase without going through one of these checks.

We’re asking for a new, stronger ban on military-style assault weapons and high-capacity magazines that allow a shooter to fire dozens of bullets as quickly as he can pull a trigger. And we’re asking Congress to help protect law enforcement by make it illegal for members of the public to possess armor-piercing bullets.

We’re going to give law enforcement more tools and resources to prevent and prosecute gun crimes, and we’re going to end the freeze on gun violence research that prevents the Center from Disease Control from looking at the causes of gun violence.

We’re calling on Congress to help make schools safer by putting up to 1,000 school resource officers and mental health professionals in schools and ensuring they have comprehensive emergency management plans in place.

And we’re going to increase coverage so that students and young adults can get access to the mental health treatment they may need.

We know that no policy we enact or law we enforce can prevent every senseless act of violence in our country. But if we can save the life of even one child, we have a deep responsibility to act.

Now is the time to come together to protect our kids. Learn about the plan, then add your name alongside mine:

http://www.whitehouse.gov/now-is-the-time

Thanks,

Vice President Joe Biden

 

January 16, 2013

We Can Do It! Alice Paul and a New White House ERA Petition

If she was alive today, Alice Paul would be 138 years old.  Ms. Paul was born on January 11, 1875. After the 19th Amendment to the US Constitution granting women the right to vote was ratified in 1920, many of the suffragettes thought women’s rights were won.  Alice Paul disagreed, saying that until women were fully written into the US Constitution, our rights would always be at risk and we could (and would) be treated as second-class citizens.  In 1923, Ms. Paul introduced and then continued working for passage of what became known as the Equal Rights Amendment (ERA) for the rest of her life.

The ERA passed Congress in 1972. It has not yet been ratified by three-quarters of the state; it needs three more states to sign on.  It is short but to the point:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

In honor of Alice Paul’s birthday, a group of women supporting the Madison Amendment or “three-state” approach for passage of the Equal Rights Amendment started a second petition on the White House petition website.

I recently wrote about the ERA and the first of these petitions. Unfortunately because of the lack of organization surrounding the first petition, it is highly unlikely that it will receive the 25,000 signatures required by its January 17 deadline in order to get a response from the White House.

This new petition, in contrast, looks like it has a much better chance of reaching the 25,000 signature threshold.  In the first 6 days of this petition drive, there have been over 4800 signatures received.  That’s an average of 800 signatures each day.  With 25 days left (deadline is February 10)—and if the momentum keeps up—we could make it.  Between now and then we need to average a total of 840 additional signatures each day.  Your help is needed.

So I am once more asking people to sign on and tell President Obama that you want him to:

Vigorously support women’s rights by fully engaging in efforts to ratify the 1972 Equal Rights Amendment (ERA).

Once you sign the petition, please let your friend, family members, and colleagues know about the petition and ask them to sign as well.  Like the WWII poster says, “WE CAN DO IT!”

We Can Do It poster

“We Can Do It!” poster created by J. Howard Miller for the War Production Co-Ordinating Committee during World War II and later associated with “Rosie the Riveter”

January 9, 2013

Meeting in New Delhi January 10, 2013 on Preventing Violence against Women

I have received a few emails from a friend in the last couple of weeks following the gang rape and death of the 23-year old female medical student in New Dehli. These emails have been a joint announcement with updates from PUCL-CFD – the People’s Union for Civil Liberties and Citizens for Democracy—about a planning meeting to discuss what needs to be done to prevent rape and other forms of violence against women in New Delhi and throughout India. Here’s the latest update for tomorrow’s first meeting.

Film Show on ‘Rape’ at PUCL-CFD meeting on 10th Jan.2013 and discussion how to prevent violence against women.

Dear friends,
PUCL (Delhi), in association with Citizens For Democracy, has organized a meeting on the subject “How to Prevent Rape and other forms of violence against women” to be held on 10thJanuary, 2013.

A film ‘NOW, I WILL SPEAK’ on RAPE shall be shown in the beginning. ‘Now, I Will Speak’ produced and directed by writer, film-maker and social activist, Sagari Chhabra is a documentary on rape. It deals with rape as a tool of political oppression, used by the police to displace villagers whose village is going under water, in the wake of a dam. It deals with Child rape and custodial rape. The film is a testimony of courage and encourages the survivors to speak out. It has been awarded by the International Association of Women In Radio and Television, and the NIFA ‘Award Of Excellence’ in production and direction. It is 40 minutes long and has a commentary in English with subtitles.
Discussion will follow the film to find out ways and means as how to achieve gender equality and justice for women.

Dr. Gopa Joshi, Shri Sanjay Parikh, Advocate, Ms.Shabnam Hashmi, Dr. Jugal Kishore and Ms. Sagari Chhabra form the panel of speakers. Justice Rajinder Sachhar and Shri Kuldip Nayar shall also contribute.

Programme is as follows:
Time & Date: 2 to 5 PM, Thursday, 10th January, 2013
Venue: Gandhi Peace Foundation, 223, Deen Dayal Upadyay Marg,
New Delhi-110002 (Ph.011-23237491, 23237493)

You are requested to make it convenient to attend.

Satyendra Ranjan
Secretary, CFD
(M) 9811999269

Shivakant
Secretary, PUCL (Delhi)
(M) 9868505324, 9811099532

January 6, 2013

White House Petition for the ERA

The Equal Rights Amendment was originally proposed by Alice Paul in 1923 after the 20th Amendment giving women the right to vote.  It has not yet become part of the US Constitution. It is time to put pressure on the White House to help get women included in our premiere document of rights.

What is the full text of the ERA? Here it is:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

What does the ERA do? Basically, it clarifies the legal status of sex discrimination in the courts and would raise women’s legal status to the same level of constitutional protection that men and people of color receive.

The ERA was introduced into Congress every session since 1923 until it passed in 1972.  Amendments to the Constitution require three-fourths of all states to ratify the amendment before it becomes part of the US Constitution.  It currently sits three states shy of reaching this threshold and has been at that point since June 30, 1982, the date by which Congress said all state ratification had to occur.

Since 1982, the ERA has been reintroduced in every session of Congress. In the 112th Congress (2011-2012), two sets of ERA ratification bills were introduced. S.J.Res. 21 (lead sponsor, Senator Robert Menendez, D-NJ) and H.J.Res. 69 (lead sponsors, Representative Carolyn Maloney, D-NY, and Representative Judy Biggert, R-IL) is the bill  that would have started the process all over from the beginning.

A second bill introduced by Representative, now Senator, Tammy Baldwin (D-WI)—H.J.Res. 47—is a much simpler bill. It would remove the ERA’s ratification deadline and make it part of the Constitution when three more states ratify. There are 15 states that have not ratified the ERA. They are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.

This route, often called the Madison amendment route or the three-state process, follows the 203 year route taken by the 27th amendment. That amendment was originally introduced by James Madison in 1789 as part of package of the proposed Bill of Rights amendments. There was no time limit placed on passage and in 1992 this amendment became the 27th amendment to the US Constitution.

Legal opinion supports the conclusion that the Constitution does not impose a time limit for ratification of amendments because states only ratify the text of the amendment, not any proposing clauses.  The time limit placed into the ERA bill passed in 1972 and the extension passed in 1979 was one of the proposing clauses. The other proposing clause states that the amendment goes into effect two years after the ERA is ratified by three-quarters’ of the states. With the passage of the Madison Amendment 203 years after it was first proposed, this argument against sun-setting an amendment was strengthened.

Both sets of ERA bills failed to pass once again in the 112th Congress and are expected to be reintroduced in the 113th Congress. As I previously said, getting three more states to ratify the ERA using the Madison amendment route is a shorter and somewhat easier route to place women in the Constitution and to afford them the constitutional protections that men and people of color receive.  President Obama, using his bully pulpit can help make this happen.

President Obama has created a petition on the White House website. He has said that he will respond to any petition that receives 25,000 or more signatures within a one-month period. There is currently a petition on the website calling on President Obama to “Support and Advance the Equal Rights Amendment, originally introduced in 1972.” The petition deadline is January 17,2013.

Here is the link to the petition. Please click, sign in to the website (you will need to create an account if this is your first time here), and then add your name to the petition.

https://petitions.whitehouse.gov/petition/support-and-advance-equal-rights-amendment-originally-introduced-1972/JPFwT541

And once you sign the petition, ask your friends, family, and colleagues to sign as well. If we can get this to go viral, then President Obama will respond.

Thanks.