DISQUS

Today, the Senate minority leader, Mitch McConnell, announced compromise legislation that follows (and may even go beyond) the suggestion made above by the prominent employment lawyer George Lenard -- to allow the deadline to run from when an employee was aware of the discrimination.

But my guess is that the Senate majority, for political reasons, will reject that rule, and more or less get rid of the deadline instead.

That's too bad, since if George Lenard's suggestion had been made long ago, before the Ledbetter decision had become a political wedge (and campaign) issue in the 2008 campaign, whoever had proposed it might have been able to peel off enough swing votes to keep the more radical Ledbetter bill from becoming law instead.

Ironically, California isn't the exception, and gender bias in divorce law is, in some states, a "liberal" problem. (Massachusetts is a famously liberal state, while nearby Maine and Connecticut have historically been full of moderate Democrats and Republicans (less of the latter in recent years)).

California is less sexist in alimony decisions than most states, but is quite bad on many other family law matters (like courts ordering the husband to pay the wife's attorneys fees even when her lawyer makes an unsuccessful motion that lacks merit, simply because the wife's nominal income is less).

And in California, the legislature breaks down on party lines thusly: the Republican legislators usually are not hostile to fathers, and the Democrats usually are hostile to them.

For example, California Republican legislators have tended to oppose allowing lifelong alimony based on short marriages that ended in no-fault divorces, while California Democratic legislators have tended to support allowing judges to order such lifelong alimony, and to prevent spouses from contracting away the right to seek such extravagant demands through prenups.

Over Republican objections, liberal legislators passed, and Gov. Gray Davis (D-CA) signed, a law weakening a prior statutory presumption (signed into law by prior moderate Gov. Pete Wilson (R-CA)) that alimony should not be awarded for periods longer than the marriage itself lasted.

Party affiliation matters less when it comes to judges than legislators, but even there, it sometimes matters. The only two members of New York State's highest court who are reasonably fair to husbands and fathers -- Robert S. Smith and Susan Read -- were put there by Gov. Pataki (R). The Democratic appointees are all hostile to husbands and fathers in their rulings.

Do you live in California? Or know of someone else adversely affected by EverBank's actions who lives there?

If so, please contact Mike Millen. He's a California attorney, and it would be easier for him to potentially bring a class action if one of the adversely affected people he's representing lives in California.

You can write to him at MikeMillen-at-aol.com, or me at hbader-at-cei.org.

Thanks,

Hans Bader

Manhattan financial analyst Eric T. Singer writes that the auto makers

"will have to put up with a 'Car Czar'. It is very appropriate that our Congress, which has lower turnover than the old Soviet Union’s Politburo, would use the term describing a Russian dictator, to identify the key missing ingredient in the car companies' organizational charts. . .

What will be the role of the Car Czar? Just as Stalin had show trials, we are now often treated to Congressional hearings to spin the latest danger or smooth over the latest bump. The Car Czar will be used in the Congressional hearings to assure us that when there is a formal bankruptcy early next year, proper protection will be given to the union jobs and green initiatives, and that the new Five Year Plan will work. All will be well in March, with just one more dose of, say, $50 billion on top of today’s $15 billion, until the next time they run out of money, which I guess will start to be apparent about six months later. The Car Czar will also be able to give the car companies our 535 representatives’ expert thinking on robotics, catalytic converters, new transmission technologies, mileage tradeoffs, styling, hot colors, and energy efficient light bulbs for cars.

The idea of repealing CAFÉ requirements, which placed a major burden on the backs of the car companies, is off the table. Of course, the Speaker of the House has stated there will not be 'an endless flow of money' unless there is a restructuring, which suggests an ongoing role for the Car Czar. 'We call this a barbershop. Everyone is getting haircuts, in terms of conditions.'

Which leads to my next question: Who does your hair? Because not all barbershops are created equal. We used to have a financial barbershop that offered tried and true haircuts. It was called the United States Bankruptcy Court. And if you overplayed your hand relative to other stake holders, you knew you might lose out altogether. But with a Car Czar, and a major seat for Big Labor at the table, no one even wants to use the unpleasant word bankruptcy.

Because it won’t be a bankruptcy. It will be something far worse. It will be the Thing That Wouldn’t Die. It won’t attract enough car buyers to survive, but it won’t be dead enough to bury. It won’t be honest about what it really takes to live. It will just be on life support, under the watchful eye of the Car Czar. And like all Mummies, it will walk slowly, with its arms raised, hoping to capture a few live humans."

Actually, the Barnstable School Committee doesn't seem to have conceded that deliberate indifference is enough for liability under the Constitution, as opposed to Title IX, which was the (mis)impression I got from its brief in the Supreme Court.

At oral argument, the school board's counsel stated that to find a school board liable, one would need to show BOTH deliberate indifference AND discriminatory intent. (The oral argument transcript is is available at www.supremecourtus.gov/oral_arguments/argument_... )

I think that assertion in oral argument was correct as to the BOARD'S liability under Section 1983 for Constitutional violations -- that is, the plaintiff would need to show both discriminatory intent (by the school official responding to a complaint of harassment by a student) and something like deliberate indifference or a similar policy or custom (by the school board itself) for the school board to be liable.

However, I think that for an INDIVIDUAL SCHOOL OFFICIAL to be liable under Section 1983, it would be enough to show that the school official harbored discriminatory intent, regardless of whether the BOARD was deliberately indifferent or not.

That's a burden different from, and harder for a plaintiff to prove, than Title IX's burden of showing that the relevant decisionmaker responding to the harassment was deliberately indifferent --- which is a standard less exacting than discriminatory intent, as the Supreme Court's decisions in Farmer v. Brennan (1994) (applying deliberate indifference standard, and discussing how it differs invidious intent) and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (applying discriminatory intent/purpose standard) make clear.

As the Supreme Court emphasized on pg. 279 in the Masachusetts v. Feeney case, “‘Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” That's more than just deliberate indifference.

However, these distinctions were hard to make clear in oral argument, and the school board's counsel's attempt to draw them confused even seasoned and perceptive Supreme Court observers like Lyle Denniston of ScotusBlog, who described the school board's attorney as distinguishing the constitutional discriminatory "intent" requirement from the Title IX "deliberate indifference" requirement at one point, only to conflate the Constitutional "intent" standard with the deliberate indifference standard shortly thereafter).

The plaintiff can't meet either the discriminatory intent standard, or the lesser "deliberate indifference" standard (plaintiff's failure to meet the latter is why the Title IX claim was dismissed by the lower courts), but it's a much easier case under the discriminatory intent standard, which requires proof that the decisionmaker failed to respond to harassment not just out of laziness, and not just "in spite of" "awareness" of the "consequences" of so doing, but precisely "because of" plaintiff's gender. (The Supreme Court so held explicitly in Personnel Administrator of Massachusetts v. Feeney (1979)).

So the plaintiff's petition really ought to be dismissed by the Supreme Court as improvidently granted -- a possibility Justice Breyer floated during the oral argument itself.

Although a loss by the defendants in Fitzgerald might not affect school district LIABILITY issues in Massachusetts that much, it could affect DAMAGES. Thus, a loss in Fitzgerald actually could be costly to school districts even in Massachusetts.

Allowing individual officials to be held liable directly under the Constitution would not only add an additional category of defendant under federal law, complicating litigation, it also expand availability of punitive damages heretofore unavailable, or less available, under both state and federal law, since punitive damages are available in constitutional cases against individual school officials even in circumstances where punitive damages would be unavailable under state law and Title IX. Title IX doesn’t permit punitive damages at all. See Barnes v. Gorman, 536 U.S. 181 (2002) (Supreme Court rules that spending-clause statutes like the Rehabilitation Act and Title IX don’t permit punitive damages); Mercer v. Duke (4th Cir. 2005) (punitive damages are unavailable under Title IX).

And you don’t need clear-and-convincing evidence or other elements commonly required by many states (even pro-plaintiff states like California) for punitive damages in a federal constitutional action. And there are other limits it would circumvent as well.

More importantly, if the defendants lose Fitzgerald, even municipalities may be on the hook for harassment by private citizens, since the 14th Amendment, unlike Title IX, applies to all of society -- not just schools or workplaces. See Johnson v. Martin, 195 F.3d 1208 (10th Cir. 1999) (constitution prohibits sexual harassment by state-actor towards citizens in general, not just employees).

So if plaintiff Fitzgerald’s theory of the Constitution prevailed, local governments would be on the hook for liability for what private citizens say or do in their homes or on public streets, even though the First Amendment has been historically understood to protect even racist and discriminatory speech on public streets, like Nazis marching through the town of Skokie, which was held to be protected speech under the First Amendment in Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), which rejected the argument that a city’s non-discrimination and fair-housing policy required limits on such marches.

The fact that you get a diploma for something doesn't make it kosher. What if your diploma was conditioned on joining a political party or Young Communist Youth Brigade or the Moral Majority?

By the way, I am not criticizing all unpaid labor as somehow being sinister. (If you re-read the post, you will see that I noted that federal appeals courts had rejected arguments that mandatory community service constitutes involuntary servitude in violation of the 13th Amendment).

But even assuming going to class in "unpaid labor," it stands on quite a different footing than mandatory community service, from a pragmatic vantage point. It gives the student marketable skills, and enhances the economy as a result (at least in the context of K-12 education, which has positive externalities).

By contrast, doing some community service make-work does not so effectively impart such skills, and the mandate of community service can be used to provide free labor for political causes whose worth is not sufficient to enable them to acquire such labor on their own merits -- essentially, a government subsidy.

Thomas Jefferson said it was sinful and tyrannical to force a man to pay money to causes he disagrees with. He might have felt the same way about forcing a man to perform unpaid labor for causes he opposes. (Of course, much of the labor supplied by a community service mandate is for causes the compelled parties are largely indifferent to, rather than hostile to, but even forcing a man to pay money to a group he is indifferent to would be regarded generally as a bad thing).

I am the author of the above blog post. Are you calling me anti-French, Denise? If so, that claim is obviously untrue: indeed, my wife is French, I have friends and former co-workers from Quebec and Canada, and I have never claimed to be "above" other countries. I will be sure to tell my Asian, black, and Hispanic relatives about your claim that "my" America is "white, angry, and dangerous." They will get a good laugh out of that claim.

I am the author of the above blog post, and my wife is French. There's nothing wrong with "French blood," as Dan H. suggests. And NAFTA, on balance, was good for both the U.S. and Canada.

Christian posted this interesting comment on October 20, but the comment was inadvertently eaten by this blog's spam filter:

"Hi Charles, MSA, all. I sent a Fedexed letter to Everbank with my instructions. I screen-grabbed their advertised rates and other data. I am in contact with all Icelandic banks to gather data to open and account there, plus 3 Nordic states that are sympathetic with Iceland:

sedlabanki@sedlabanki.is

info@kaupthing.is

info@landsbanki.is

Glitnir

nationalbanken@nationalbanken.dk

central.bank@norges-bank.no

registratorn@riksbank.se

I am preparing for a long battle with Everbank should the need arise. Here's a list of valuable web links:

http://www.sec.gov/complaint.shtml

https://tts.sec.gov/acts-ics/do/complaint

https://www2.fdic.gov/starsmail/index.asp\

http://www.ots.treas.gov/?p=ConsumerComplaintsI...

Now, it is my view, as Everbank World Markets is operating outside of the typical CD market due to the foreign currency nature of 'deposits', that it will eventually boil down to standard banking rules described here: http://en.wikipedia.org/wiki/Certificate_of_dep...

Remember, we PAID Everbank for the upfront conversion of one currency (in my case, EUR and USD, depending on CD) so that Everbank could HOLD our CDs. The only way Everbank is entitled to force us to liquidate our DEPOSITS is if ISK were to no longer exist, in which case, we have the option of taking delivery of the ISKs ON DEPOSIT, even if it's just to use as wallpaper!

I am also investigating contacts with State Attorney Generals (my state and theirs, namely MO and FL), Class-Action specialists, consumer channels and of course, a personal attorney.

I will keep you all posted, and of course, please post progress you may have made on your own fronts..."