Tuesday, June 26, 2012

Title IX Turns 40

Guest blogger Deborah Brake, Professor of Law and Distinguished Faculty Scholar, University of Pittsburgh School of Law

This June marks the 40th anniversary of one of our greatest civil rights laws, Title IX of the Education Amendments of 1972, which banned sex discrimination in federally-funded education programs, including extracurricular activities at schools and colleges. Title IX's big birthday party falls on an Olympic year, so we can expect that this year, sports commentators will make the connection between America's female Olympic champions and the law that opened up athletic opportunities for them. Few laws prompt such anniversary celebrations, and there is good reason for Title IX's special place in popular culture as a "super statute"-the kind of law that shifts cultural norms and has a transformative impact on society.

Title IX is best-known for its impact on sports, but it covers many kinds of sex discrimination in all aspects of education programs, including sexual harassment, the treatment of pregnant and parenting students, access to opportunities in nontraditional fields like math and science, and sex-separate programming based on gender stereotypes.  In fact, when the legislation was enacted in 1972, athletics was the last thing on the minds of the legislators who voted for it.

Much of the congressional testimony centered on opening up academic opportunities to women. At the time, women were commonly expected to structure their lives around marriage and domestic life and so they were often excluded from graduate and professional schools. In 1971, even a public undergraduate institution like the University of Virginia restricted admission to men only.  Buoyed by the women's movement, supporters of Title IX sought to help women get the skills and education they needed to participate as equals in economic and professional life.

But Title IX also sparked a revolution in girls' and women's sports by forging an unusually creative measure of equal opportunity, one more concerned about substantive equality than mere formal equality.  As a result, we have gone from 1 in 27 high school girls playing varsity school sports in 1971, the year before Title IX's passage, to nearly half of all girls today playing high school varsity sports.

The law also ushered in massive growth in women's sports at the college level, from 30,000 female intercollegiate athletes in 1971 to about 165,000 today. There are several reasons why Title IX has been so successful in expanding participation in women's sports, but the main one is the law's refusal to put a ceiling on women's sports opportunities based on what seems like fixed or "natural" interests in sports.  For example, as one court recognized in a landmark Title IX case:

"Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. … Rather than providing a true measure of women's interest in sports, statistical evidence purporting to reflect women's interest instead provides only a measure of the very discrimination that is and has been the basis for women's lack of opportunity to participate in sports."

Perhaps the biggest cause for celebration on this anniversary is that we have managed to hold onto these gains, at times, against long odds. Since the law's passage, detractors of women's sport have sought to derail the law's application to athletics.  Others have tried to vilify Title IX by saying that the law is responsible for cutting opportunities for male athletes. Yet, since Title IX was enacted, male sports participation has increased for the most part, both at the high school and collegiate levels.

The success of Title IX comes from its ability to change cultural norms to build strong public support for girls and women in sports.  But this doesn't mean it hasn't faced attacks. During the George W. Bush Administration, Title IX's legal standards were on the chopping block.  President Bush and his Secretary of Education set up a "Blue Ribbon" commission to reexamine the law and stacked it with some vocal critics of the law and officials from Division I-A powerhouses.  At the time, Dennis Hastert - a former wrestling coach long on a mission to roll back the clock on Title IX - served as Speaker of the U.S. House of Representatives, and the Republican-controlled Congress appeared hospitable to trumped-up charges of "reverse discrimination" and "quotas" linked to a civil rights law.  Despite this bleak outlook, Title IX advocates, including commissioners Julie Foudy and Donna de Varona, managed to beat back the assault and keep the law substantially intact.

Recently, there has been a spate of OCR complaints and court challenges citing unequal participation opportunities and treatment of girls' sports at the elementary and secondary level.  For example, we are still seeing countless complaints of poor coaching for girls and inferior facilities that put girls at risk of sprained ankles from playing on poorly maintained, non-regulation fields, while boys play in brand new state-of-the-art facilities.

In an Indiana case decided earlier this year, the court found that the common practice of always scheduling boys' high school basketball games in the prime-time slots of Friday and Saturday nights, while relegating the girls' games to school nights, reinforced the second class status of the female players.  Such discrimination in scheduling remains common, and creates academic conflicts for girls who have to balance homework with games while suppressing their spectatorship.  These cases show the continuing relevance of Title IX and the need for stepped-up enforcement efforts, even as we celebrate and remember the law's gains.

Much work remains to be done to reach full equality. But even so, Title IX has shifted cultural norms and changed societal expectations about gender.  The strong, powerful, hard-hitting, competitive female athlete has gone from being a "tomboy" to an iconic ideal.  Athletic success is now a path to popularity and leadership for girls as well as boys.  This is important stuff that can later affect a woman's later job success and her health in adulthood.  Most importantly, through sports, women learn important lessons about competition, teamwork and leadership- lessons that are as important for girls as they are for boys.

For a comprehensive look at Title IX's successes, limitations and disappointments, see Deborah Brake's new book, Getting in the Game: Title IX and the Women's Sports Revolution (NYU Press 2010), which was just released in paperback (and is available at amazon.com).

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Tuesday, June 19, 2012

Our Common Effort for Ending Mass Incarceration

The Commonwealth Foundation, a libertarian think tank focused on budget and economic issues, usually doesn't care what the ACLU is doing. And vice versa. The Pennsylvania Family Institute does, but only because it typically opposes us on issues like reproductive rights and LGBT rights.

But here's something we all agree on: Something has to change in the way Pennsylvania sentences, imprisons and paroles inmates, particularly non-violent offenders. All of us agree that, if we stay on our present course, our prison system will bankrupt the commonwealth. Overincarceration is a matter of justice, but it's also a case for the American pocketbook, costing taxpayers billions each year, with very little evidence to suggest that it's particularly effective.

Recently, I wrote an article discussing the role that the overincarceration of Black America has played in having more African-Americans now under correctional control than were enslaved in 1850. While this fact reeks of unfairness in our correctional system, the problem is systemic, arising from larger punitory trends born from Ronald Reagan's War on Drugs. Now, in America, 2.3 million people are imprisoned, constituting 25% of the world's prison population.

Pennsylvania certainly hasn't been exempt from the problem. Over the past thirty years, the incarceration rate in the commonwealth has skyrocketed to the tune of $200 million for taxpayers. It costs $32,986 annually to house just one prisoner in our state. Yet, many prisoners here aren't put in jail for violent crimes, but rather for drug abuse or parole violations, which means that we're just putting a very expensive band-aid on the wrong wounds.

The need for reform is clear, but how can we fix this problem? The ACLU of Pennsylvania believes that if someone commits low-level, non-violent offenses, such as taking illegal drugs, that person should not go to prison. Instead, he or she should be sent to treatment. Also, we need to start instituting sanctions for parole and probation violators other than sending them to jail.

Recently, we began working with former Pennsylvania governor George Leader and his family to promote prison reform in the commonwealth. Leader, who has worked to help counsel inmates and to keep them away from crime after getting out, believes that now is the time for reform. We agree.

The ACLU also has teamed up with the Commonwealth Foundation, which is working with the Right on Crime coalition alongside Governor Jeb Bush and former Secretary of Education Bill Bennett. The Commonwealth Foundation has done an admirable job pointing out that a number of states, such as the infamously tough-on-crime Texas, have been appropriating money away from building new prisons and into treatment options. This has helped stop repeat offenses from those who are nonviolent and mentally ill and those who are addicted to drugs.

A new bill aimed at reform, SB100, is now in the state senate. Alongside policy recommendations from the Justice Reinvestment Working Group (JRWG), we're looking at a great first step toward reform. For instance, SB100 proposes creating the Safe Community Reentry Program, which will develop individualized plans for prisoners reintegrating into society. Additionally, some of the ideas proposed by the JRWG will save Pennsylvania over $350 million by 2017.

Though this bill and these recommendations can be improved in certain places, the ACLU, Governor Leader, and those at the Commonwealth Foundation are fighting to help guide us toward an equitable and humane solution for our state and those under its correctional control.

The famous historian Howard Zinn once wrote, "Imprisonment is a way of pretending to solve the problem of crime." While I'm sure we can all agree that some people are in prison for the right reasons, we also have to admit that we're imprisoning far too many people who shouldn't be there. As a country, and as a state, we shouldn't have to stomach the problems of this morally questionable system, especially with our hard-earned dollars.

-- Reggie Shuford, executive director of the ACLU of Pennsylvania

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Friday, June 08, 2012

Voter Suppression is an LGBT Rights Issue – Just Ask Asher

Like many Americans, Asher Schor is excited to vote this coming November. Asher was born and raised in Pittsburgh, works at a public interest law firm, and feels more motivated than ever to participate in the electoral process. But Asher is one of thousands of transgender Americans whose driver’s license and passport do not reflect his or her true gender identity. Asher received his photo ID before his transition and the official sex listed still reads “Female.” He recently joined the ACLU of Pennsylvania’s lawsuit against a new and particularly onerous voter ID law, and I had a chance to discuss how the new law will impact him at the polls this November. This LGBT Pride Month, it’s important to examine the ways that voter suppression efforts, like newly-enacted photo ID laws, will have a disproportionately harmful impact on those who are transgender.
In recent years, state houses across the country have passed more laws making casting a ballot increasingly difficult. States have used different tactics in in their efforts to restrict access to the ballot, but many have passed voter identificationlaws. Stopping voter fraud is the posited rationale for these laws. However, voter ID laws across the country impose onerous burdens on many voters to fix a problem that doesn’t existThere is much more evidence that qualified voters are disfranchised by these measures than there is evidence of in person impersonation fraud – the only type of fraud a voter ID might address.    
In some states, voters can only cast a ballot if they display a valid photo identification, from a very short list of acceptable IDs, at their polling place. While the requirement at first glance seems simple, a recent study by theBrennan Center for Justice demonstrated the devastating impact these laws will have on minority, voters with disabilities, elderly, young and low-income voters. As many as five million eligible voters face disfranchisement this election cycle. State houses are enacting needlessly restrictive laws that will prevent or discourage millions of Americans from exercising their most basic civil right.
In addition, transgender voters face unique challenges in complying with recent voter ID laws. According to a recent study by the Williams Institute at the UCLA School of Law, over 25,000 otherwise eligible transgender voters could be turned away at their polling places come November. The most pressing problem is the potential discrepancy between a voter’s gender identity and his or her designated sex on state-issued identification. The National Transgender Discrimination Survey (NTDS) found over 40 percent of transgender men and women do not have an ID that accurately reflects their gender. Asher is concerned that the discrepancy between his identification documents and his gender identity could lead to confusion and a higher level of needless and potentially embarrassing scrutiny from poll workers. “I am certainly expecting to be scrutinized,” Asher says, “and possibly even accused of having a fake ID.”
Transgender men and women often face difficult hurdles when attempting to change their state-issued documentation to reflect their lived gender. As a paralegal, Asher believes he has a fairly good understanding of the law, but admits changing one’s documentation can be confusing. “It’s a huge process,” he says, “because you have to change everything all at once.” For Asher, the decision to change his documentation is primarily about timing. He says he wants to wait until his physical transition is further along before undertaking the complicated legal process of changing his documentation. 
In addition to the bureaucratic and legal hurdles, transgender individuals face discrimination and harassment at staggering levels on a regular basis. The NTDS reported 22 percent of transgender respondents had been denied equal treatment or had experienced harassment by government officials when presenting incongruent ID. “Showing identification is really uncomfortable for me,” Asher said. “There is always that fear when I pull out my ID.” As Asher’s transition continues, he will display more masculine traits, such as facial hair, that will make the process of showing his ID even more uncomfortable. “I’m worried that in order to vote without being discriminated against,” he said, “I’ll have to present at the polls in a way that doesn’t conform with my identity.” No state should force its citizens to make such a choice. 
Transgender voters are just one group facing disfranchisement this election. Thousands of transgender voters could be turned away at the polls; untold more will stay home rather than risk discrimination or harassment from polling officials. Asher is still eager to vote, in spite of the potential for harassment. “This law made me really angry that my state would erect more barriers to voting,” he said. “It gave me the kick in the pants I needed to get more involved and excited about voting this fall.” 
The stakes could not be higher in this coming election. The injustice facing millions of voters is offensive to the very spirit of democracy. The Supreme Court has described the right to vote as a civil right “of the most fundamental significance under our constitutional structure,” since the ability to cast a ballot is “preservative of other basic civil and political rights.” In other words, voting is the means by which citizens maintain and protect their other rights. With the start of LGBT Pride Month, it’s crucial to recognize that voter suppression is and will continue to be an LGBT issue.
by Patrick DePoy, ACLU Washington Legislative Office
This post originally appeared on the national ACLU blog.

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Thursday, June 07, 2012

The Inside Game: On getting seven bills passed in one session

In the lobbying game, any association or organization or legislator that could get seven bills passed in one session would be ecstatic. I've been doing this lobbying thing for five years and have been hanging around the capitol as an activist for 12 years, and I can't think of anyone getting that kind of return in one session.

The supporters of HB 2400, the spying bill that loosens the state Wiretap Act, could get seven provisions that they want right now. HB 2400 revises the act in approximately 13 different ways. The ACLU of Pennsylvania has no position on seven of those changes, and we are not aware of any opposition to those seven revisions.

But that's not enough for the government officials who insist on gathering more power for themselves. They want more. And that's where the resistance begins. They want de facto repeal of Pennsylvania's "two party consent" rule that requires all parties in a private conversation to consent to recording with the following changes:
  • Recording without consent if notice of possible recording has been posted. Somewhere.
  • Recording without consent if the person thinks that maybe, possibly, they'll gather evidence of a past, present, or future crime
  • Allowing the government to use recordings that civilians have made illegally
  • Admitting wiretaps from other states or the federal government, even if that jurisdiction doesn't have the same privacy standards as Pennsylvania, i.e. two party consent versus one party consent
They also want to be able to seize mobile phones and then intercept incoming messages and send outgoing messages from those phones without ever telling a court what they're doing. And they want to be able to gather mobile location data from cell phone companies- both historical and in real time- with a loose "relevant to an investigation" standard.

This is why it is so important for Pennsylvanians to watch their government and why it is so important that the ACLU exists. Our founders understood that power in human hands must be checked. That's why we have three branches of government and why the first ten amendments to the constitution limit the powers of government. 

The supporters of HB 2400 could wave the flag of victory with seven revisions to law and walk away. But they insist on pushing for more. They must be stopped.

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Tuesday, June 05, 2012

Noxious Creeping Part V: PA legislators to other states- "Please decide our laws for us"

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses a proposal to allow Pennsylvania courts to consider wiretaps that were legally made under other states laws, even if they would have been illegal in Pennsylvania.

Part V: PA Legislators to other states—“Please decide our laws for us”

HB 2400 would require Pennsylvania courts to consider recordings that were legally made in jurisdictions other than Pennsylvania. For example, if a person legally recorded another in New Jersey, a Pennsylvania court would have to accept the recording as evidence. The Pennsylvania court would have to allow the recording, even if the recording would have been illegal if it had been made here.

Pennsylvania has a tradition of granting broader privacy rights than many other states. Even the United States Constitution offers less protection for personal privacy than does Pennsylvania law. Our state constitution’s guarantee against unreasonable searches is older than the Fourth Amendment in the Bill of Rights. In our wiretap statutes, Pennsylvania long ago decided that all parties to a conversation must consent to recording. In contrast, many states require only one party to consent. Our commonwealth’s robust privacy protections make a strong statement: We helped give birth to American liberty, and we want to enjoy as much of it as we can.

Unfortunately HB 2400 would contradict our tradition of assuring strong privacy rights. The bill would force Pennsylvania’s judges to open their courtrooms to recordings that would be illegal and inadmissible if they had been made here. The all party consent rule—a fundamental protection for all who appear in Pennsylvania’s courts—could disappear for some defendants.  Admissibility would depend merely on where their conversations were intercepted. The legislators of other states, as well as members of Congress, would have the authority to decide when Pennsylvania courts would have to admit certain recordings.

Our legislators in Harrisburg can talk a good game about states’ rights and Pennsylvania’s authority to govern itself. But when it is time to step up to the plate, do their votes follow their rhetoric? The supporters of HB 2400 must be hoping the answer is “No.”

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

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Monday, June 04, 2012

Noxious Creeping Part IV: By reading this, you've consented to audio surveillance

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses a proposal to add a notice exception to the definition of “oral communications.” The new exception would allow anyone who gives notice of surveillance to record otherwise private conversations.

Part IV: By reading this blog post, you have consented to audio surveillance.

One of the most far-reaching proposals of HB 2400 creates a “notice exception” to the definition of oral communications.  Currently, the wiretap law bans recording most private oral communications. HB 2400 proposes a new rule that an oral communication isn’t private if the speaker has notice that it might be recorded.  In other words, as long as someone has notified you that surveillance may happen, you have no right to expect that your conversation is private.

This includes “actual notice,” which means you actually are aware that you may be recorded. It also includes “constructive notice.” That’s a jargony term meaning, “it’s written down on something that you were supposed to read.” Like a sign in the front office of a building, or in the back of the employee handbook. If HB 2400 passes, we can expect to see “you may be under surveillance” signs popping up all over. And you can expect to be under surveillance whenever you are not at home, whether you are out in public or not.

The notice exception makes it easy for anyone to remove any expectation of privacy in public and private space. Let’s consider a couple examples. An employer could post a sign about audio surveillance in the front office or in an employee handbook. Then the employees’ private conversations could be recorded in elevators, offices, shop floors, and lunch rooms. Don’t criticize the boss, and don’t talk about unionizing at work. 

The exception would apply in schools as well. The meetings of student groups such as the Gay-Straight Alliance might be recorded. Or administrators might decide to listen in on school newspaper meetings or student government meetings to make sure no one criticizes school policies.
Instead of the notice exception, the ACLU of Pennsylvania supports a different definition of “oral communications” that protects privacy rights. We ask the legislature to define “oral communications” as, “Any oral communication uttered by a person possessing a reasonable expectation of privacy in such communications.” Our proposal clarifies the current law rather than changing it significantly. Since 1998, Pennsylvania Courts have interpreted “oral communications” to cover only situations where the parties to a conversation had a reasonable expectation of privacy. See Agnew v. Dupler, 553 Pa. 33 (Pa. 1998). Our proposal would rewrite the current statute to make it crystal clear that a person’s “reasonable expectation of privacy” should remain the cornerstone of privacy rights in the wiretap act.

The “reasonable expectation of privacy” rule protects privacy where HB 2400 would threaten it. Instead of looking only to whether someone posted notice somewhere, courts interpreting the “reasonable expectation of privacy” rule look to all the circumstances surrounding a conversation. So even if the front office had a sign about audio recording, students might still be able to have a private conversation in a closed classroom, or employees might still be able to speak in an otherwise empty elevator without the boss listening. 

All of us—whether as employees, students, or in some other role—should have the right to hold private conversations from time to time, even if we are not at home. HB 2400, as it is currently written, would make this right a rare one. 

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

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Friday, June 01, 2012

Noxious Creeping Part III: You can record if you think they might admit to thinking about doing something bad in the future

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before the state budget passes, which is due at the end of June, and before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses the proposal to allow anyone to record private conversations if they believe they will capture evidence of a crime of violence or first degree felony.

Part III: The Evidence Exception, or You can record if you think they might admit to thinking about doing something bad in the future.

Pennsylvania’s wiretap law requires that everyone in a private conversation consent before anyone can record it. The law protects everyone’s privacy by making sure that everyone has a chance to keep a private conversation private.

Legislators are proposing to create a new exception that punches a massive hole in the “all-party consent” rule—a hole with ragged, unraveling edges. This “Evidence Exception” would allow any person to record anything if they have a reasonable belief the recording will capture evidence of a past, present, or future crime. For now, at least, the exception is limited to “crimes of violence” and first degree felonies.

On its face, the law would give individuals permission to secretly record each other in many private conversations. For example, one person’s malice towards another can be good evidence in an assault case. Under this law, a person might record another person badmouthing a third person, just in case the third person was ever the victim of a violent crime sometime in the future.

The proposed law also puts a confusing burden on civilians to decide when the exception actually applies. You would only be allowed to record if you thought you would find evidence of a “crime of violence” or a first degree felony. Otherwise recording without consent is still a crime. Quiz: Sometimes burglary is a first degree felony and sometimes it is not; and sometimes it is a crime of violence and sometimes it is not. Do you know the difference?[1] How many people will be able to say whether the proposed law would allow them to record a private conversation or not? Not many, I suspect, without seeking advice from a lawyer first.

If this proposed exception seems broad by itself, consider also that it would be very likely to expand. Once we allow recording to capture evidence of “crimes of violence” and felonies of the first degree, preventing the exception from sweeping in other offenses as well will be almost impossible. Discharging a firearm into an occupied structure is pretty awful, but it is only a felony of the third degree. 18 Pa.C.S. 2707.1(b). If a legislator in the future votes against expanding the Evidence Exception to include that offense, is he or she supporting discharging firearms into occupied structures? Casting votes to keep the exception where it is would be politically very, very difficult. Inevitably, some legislator or some prosecutor will cite an emotional case to justify further expansion of this exception.

As it is now, the Evidence Exception is so large it could nearly swallow all-party consent by itself. And once created, it could easily grow even larger.
Instead, we should keep it off of Pennsylvania’s law-books entirely.

[1] Does it help if I tell you that burglary is only a second degree felony “If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry”? 18 Pa.C.S. 3502. The definitions of “crimes of violence” are at 42 Pa.C.S. 9714(g).

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