Tag Archives: rights

The Fifth Circuit Issued a Ruling

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Some time ago, recall, Department of Education Secretary Miguel Cardona, with the full and enthusiastic support of Progressive-Democrat President Joe Biden, put into effect a Rule (referred to as Guidance Documents in the court’s ruling) that sought to rewrite Title IX to claim that a child’s, or near-adult college student’s, claim of “self-identified” gender was sufficient to allow a boy or a near-adult male access to girls’ bathrooms, locker rooms, and athletic endeavors as “teammates.”

Texas demurred, and the Fifth Appellate Circuit Court agreed.

Among other things, the court wrote [citations included, emphasis added]:

The Guidance Documents build on previously enjoined guidance issued under President Barack Obama. See Questions and Answers on Title IX and Sexual Violence B-2, 89 Fed. Reg. 33,474 (Apr. 29, 2014) (“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity.”); see also 2016 Dear Colleague Letter on Title IX and Transgender Students 2, US Dep’ts of Educ & Justice (May 13, 2016) (informing educational institutions about the new “Title IX obligations regarding transgender students”). This Court enjoined implementation of these prior guidance documents as contrary to law because “the plain meaning of the term sex as used in § 106.33 when it was enacted by [the Department] following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.” Texas v United States, 201 F. Supp. 3d 810, 832–33 (N.D. Tex. 2016) (O’Connor, J.).

And [citation included]

…Defendants maintain that their actions will only be final when they apply these interpretations to particular factual circumstances via enforcement. But a substantive interpretation that will eventually result in investigative and enforcement activities constitutes final agency action even if an application to specific individual cases has yet to occur. Cf. MPP, 597 U.S. at 809 n.7 (noting agreement between the majority and dissenting opinions that final agency action exists when the action results in a final determination of rights or obligations regardless of some contingent future event).

And:

Regarding the first vacatur-versus-remand factor, the Department will not be able to justify its decision to create law that Congress did not pass and that the Supreme Court did not allow.
…
Not only are the Guidance Documents contrary to law and in excess of the Department’s authority, but the Department will also not be able to substantiate its decision on remand because there is no possibility that it could correct the fundamental substantive and procedural errors.

Thus, the matter won’t even be sent back to the DoEd for correction: there is no deficiency here that the department is capable of correcting.

And, as bluntly as court rulings get:

Thus, the Court applies this default remedy and VACATES the Guidance Documents on the grounds that the Department enacted a substantive rule that is contrary to law, did so in a manner beyond the scope of its legitimate statutory authority to promulgate it in the first place….

In fine, as the court emphasized at the outset of its ruling,

Having considered the briefing and applicable law, the Court concludes that Defendants cannot regulate state educational institutions in this way without violating federal law.

However, in the end, the ruling applies Texas-wide only; it does not apply to the whole of the 5th Circuit’s jurisdiction. The other States in the circuit—Louisiana and Mississippi—will have to go to the expense of bringing their own suits.

The court’s ruling can be read here.

 

h/t Texas Attorney General, Ken Paxton.

A Misapprehension

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This one, increasingly unsurprisingly, comes from The Wall Street Journal‘s “news” room. This is the lede from the outlet’s Monday article centered on the 11th Circuit’s decision blocking a Venture Firm’s Grant Program for Black Women:

A federal appeals court on Monday blocked Atlanta-based investment firm Fearless Fund from continuing with a contest that grants awards to businesses owned by Black women, a blow against diversity and inclusion programs that have been under increasing legal attack.

No. It’s actually a blow against segregationist programs that have been under increasing legal attack.

TIFIFY.

Selection on the basis of race or gender rather than merit, as this “venture firm” attempted to do, is intrinsically racist and sexist. Fearless‘ lawyer, Jason Schwartz, in his dismay over the ruling, had this:

The discrimination in access to funding that the Fearless Foundation seeks to address is long-standing and irrefutable[.]

That argument merely adds to the weight of the majority decision: adding discrimination to existing discrimination (stipulating arguendo that Schwartz’ claimed prior is true) merely adds to the discrimination. Further, Shwartz’ argument begins by tacitly acknowledging the inherent racism and sexism of that “existing” discrimination. Schwartz is either disingenuous or broadly oblivious.

Judge Kevin Newsom, writing for the majority, agrees, albeit somewhat more circumlocutorily:

“The fact remains, though, that Fearless simply—and flatly—refuses to entertain applications from business owners who aren’t ‘black females'[.]” If that warranted protection under the First Amendment, “then so would be every act of race discrimination.”

Even the court’s lone dissenter in the decision had no argument against the ruling itself; Judge Robin Rosenbaum argued only that the plaintiff had no standing to bring the case in the first place.

It’s pretty instructive to note that what those so enthusiastically pushing for solutions like Fearless‘; college/university affirmative programs, which also push favoring one group at the expense of others solely on race or sex; et al., miss is that while the problem they claim to want to address is real, the solution lies at the bottom: equal opportunity in the formative years of our children so they enter adult life on an equal footing. Top down solutions, which really are after the fact and too late solutions, don’t accomplish anything other than continued racist and sexist segregation.

That last is a milieu where the Left’s precious mantra of middle out and bottom up actually could have serious effect.

“Should AI Have Access to Your Medical Records? What if It Can Save Many Lives?”

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The Wall Street Journal asked that question last week. And their subheadline:

We asked readers: Is it worth giving up some potential privacy if the public benefit could be great?

A good many of the published answers centered on Yes, with oversight by, among others, medical professionals.

This reader (unpublished in the WSJ) says, resoundingly, No. Not now, and not for the foreseeable future, say I. Personal data aggregators, whether government or private enterprise, have shown no ability to protect our personal data, whether from hackers or from organizational carelessness, incompetence, or ignorance. With our medical data especially, very good protection, even six sigma-level protection, isn’t good enough. This is one of the few areas where perfection must be the standard. Since that’s an unachievable standard, AIs must not be permitted any access to our personal data, including our personal medical data.

There are additional reasons for saying no. One is the inherent bias programmers build into AIs. Alphabet’s overtly bigoted Gemini is an extreme example, but the programmers build their biases into AIs through the data sets they use and have their AIs use in training.

There’s also the just as overt bigotry too many medical training institutions apply through their emphasis on diversity, equity, inclusion claptrap at the expense of training actual medicine. Those institutions are producing the doctors that would the second generation of “medical” professionals doing the oversight.

In the current state of affairs, and for that foreseeable future, it’s not feasible to let AIs into any aspect of our personal lives. The blithely assumed public benefit is vastly overwhelmed by the threat to our individual privacy—the “public,” after all, is all of us individuals aggregated.

The Trump Conviction

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Manhattan Prosecutor Alvin Bragg campaigned on his explicit promise to get former President Donald Trump (R), not to uphold the law generally. His campaign was to target the man and then find a crime. He did list, though, a broad number of violent crimes that he would not prosecute at all. Now Bragg has gotten his 34 counts of guilty on a case that wouldn’t have been a felony case at all but for his claim that the 34 counts on which Trump was tried were done to cover up another crime.

Here’s what the 6th Amendment to our Constitution says on criminal trials:

In all criminal prosecutions, the accused shall enjoy the right…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor….

Here are some tidbits regarding that trial. It’s not an exhaustive list, just a few of the larger, more obvious ones.

Trump’s team was denied by the presiding judge the opportunity to call all of the witnesses they wished to call, including an expert witness who could have explained to the jury the election law that Bragg’s team made a key part of its case. The judge reserved that explanation for himself, and he testified as an expert in the guise of his jury instructions after both sides had rested their cases.

Trump’s team—and Trump himself—were never informed of the nature and cause of the accusation bringing him to trial. At no time did Bragg’s team say what the covered-up crime was, not in the indictment, not in the charge sheet initiating the trial, not at any time during the trial. Not even the jury’s sheet on which they were to mark their Guilty or Not Guilty verdict for each count indicates what that other crime was.

In the judge’s jury instruction, the judge identified three potential covered-up crimes—not the prosecutor, the judge—that the jury could find was the covered up crime that made the 34 actually charged counts crimes of which they could convict Trump. The judge’s instruction further said the jury did not have to be unanimous in its selection of that covered up crime: they could pick and choose among the list, and so long as one juror chose one (or more) from the list, that would be sufficient to convict.

As far back as 1898, the Supreme Court ruled in Thompson v Utah that

a defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.”

The Court’s 1940 ruling in Andres v United States expanded on that:

Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury.

Trump was denied that unanimity.

But this wasn’t a political hit job. Not at all.

Gerrymandering

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The Supreme Court a few days ago ruled 6-3 that a US House districting map in South Carolina was not an illegal racial gerrymander but was an entirely legitimate political gerrymander and so beyond the reach of courts to intervene in. Political gerrymanders are entirely political matters and the sole province of a State’s legislature, the Court held.

Justice Elena Kagan wrote in dissent,

This Court has prohibited race-based gerrymanders for a reason. They divide citizens on racial lines to engineer the results of elections.

I suggest that Kagan has, by mistake, hit upon the larger problem that any gerrymandering creates. Political gerrymandering divides citizens on political lines explicitly to engineer the results of elections. How is that any more acceptable?

The idea of barring racial gerrymanders is to prevent the exclusion of racial minorities in a district from electing government representatives who will represent them.

Yet political gerrymanders, which set districts along purely political party lines, are a legitimate means of excluding political minorities, even major parties in a State’s legislative minority, in a district from electing government representatives who will represent those parties’ members.

How is that in any way different from racial gerrymanders? The group that’s in power is allowed, through gerrymandering, to perpetuate its power by permanently reducing the power of those not in power.

Better to draw House districts—or at least US House districts—as rectangles of substantially equal populations, without regard to race or politics.

The first article of the 14th Amendment of our Constitution includes this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….

Article I, Section 4, of our Constitution is this:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

Congress has some (not absolute) authority over the States’ political decisions regarding the Regulations for holding elections, and that would seem to include districting rules.

Finally, surely among the privileges of an American citizen is the privilege—the right—to vote. Every voter should be on an equal footing with every other voter rather than some voters, by dint of their inclusion in a particular race or political bent, having political advantage over other voters. Disadvantaged voters most assuredly are seeing their voting privilege abridged.

In fine, either all American citizens are equal under law, or we are not.