Monthly Archives: February 2013

Anti-Anti Violence Against Women? Why Some GOPers Voted “No” on VAWA.

Todd Panciera, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Todd Panciera, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

By Todd Panciera, Junior Editor

The Senate finally passed the reauthorization[1] of the Violence Against Women Act (VAWA), and some Republicans are taking heat for the delay.  Liberal blog site has gone as far as publishing photos of each of the 22 Senate Republicans that opposed the bill, here.Even GOP rising star Senator Marco Rubio (R-Fla.) (who delivered the Party’s response to the State of the Union) appears to be on the short list. But the Whitehouse saysthat reauthorizing VAWA is “more essential than ever.”[2]

The Violence Against Women Act was authored in 1994 by then-Senator Joe Biden.  VAWA represents a non-partisan solution to an obvious problem; we expect Congress to be fundamentally split over issues like healthcare and guns, but not over curbing domestic abuse.  That said, are we really just “rubber-stamping a politically attractive law,” as Christina Villegas suggests?  Villegas, a visiting fellow with the Independent Women’s Forum who is writing her PhD dissertation on VAWA, alleges (here) that VAWA is replete with bloat and waste and has not been credibly proven to reduce violence.  However legitimate their arguments, VAWA’s opponents risk their political caché by fighting legislation that — at least facially — is a comprehensive effort at a time when gender-based violence is getting renewed international attention.[3]Are deal-breaking concerns really being brushed aside by most of Congress so that it can avoid appearing to “wage a war on women?”

VAWA’s Effectiveness

According the Department of Justice, the rate of intimate-partner homicides has been trending downward since the passage of VAWA: the overall rate of occurrence has dropped more than 60% between 1994 and 2010, according to this DOJ Special Report.  Critics like Villegas, however, quickly point to the rest of this report, which notes similar rates of decline in all violent crime.  Further, post-2005 figures indicate that violent crime rates have continued this downward trend.  Compare that to intimate partner violence decline, which has leveled some.  Many, many scholarly works have attempted to compile these numbers into meaningful analysis, attacking or defending VAWA’s basic assumptions, the wisdom of its particular provisions, and even its constitutionality.  To borrow a wry phrase from one critic, VAWA “has proven to be a federal response to the problem of journal topic selection for American law students.”[4]

Congressional Points of Dissent

            Obviously, Congressional beef with VAWA doesn’t encompass the whole of VAWA scholarship.  Given historical precedent,as well as political limitations (namely, that any full scale assault on the idea of VAWA would surely be political suicide), congressional opponents are more likely to focus on a particular area of concern.  Representative of this approach are the comments of Senator Richard Shelby (R-Ala.): “I like the idea [of reauthorization].  There is too much violence against women and children in this country, a lot of it left unanswered.”[5]  Below, I focus on two of the most controversial areas.

I. Tribal Lands Provision

One of the primary points of contention is the amendment that would give tribal courts jurisdiction to prosecute non-Native American men who abuse Native American women on tribal lands.[6] In a position statement, Senator Rubio stated conclusively: “I have concerns regarding the conferring of criminal jurisdiction to some Indian tribal governments over all persons in Indian country, including non-Indians.”  Senator Chuck Grassley (R-Iowa) has been a more vocal opponent, arguing that because on tribal lands Native Americans would necessarily make up a trial court’s jury, such a jury wouldn’t be an accurate cross-section of the community, an essential guarantee of the Sixth Amendment.[7] The concern isn’t only for the rights of alleged abusers, either.  Senator John Cornyn (R-Texas) warns that VAWA could be put in jeopardy if a court were to find a constitutional problem.  Republican supporters have tried to shed light on the constitutionality of this provision, however, noting that jurisdiction is not being removed from courts of the United States, but would be concurrent with the very limited jurisdiction the amendment would confer to tribal courts.  Further, they note that tribal courts are subject to the same constitutional constrictions as other U.S. courts.[8] Republican opponents like Grassley were at least partially successful in modifying the tribal provision to bolster constitutional guarantees, ensuring that the accused may elect to transfer venue to a non-Native court.

II. Immigration Provision

            Opponents claim that the immigration amendment allows illegal aliens to remain in the United States simply by alleging domestic abuse, due to a broadening of the provisions of the Immigration and Nationality Act.  Essentially, VAWA modifies the INA by allowing aliens to obtain visas by “self-petitioning” under certain circumstances.[9]  These so-called “U visas” are given to victims of violent crimes in exchange for cooperation with law enforcement.  Under the current law, 10,000 U visas are given out each year — the immigration provision proposes to expand that number to 15,000, and some Senate opponents see a potential for abuse.  They claim that growing the cap on U visas encourages illegals to make false reports; one critic notes that an immigrant can even apply for a U visa as a “last-ditch Hail-Mary pass to avoid being sent home” after being ordered deported.  On the ground, though, initial skeptics like San Francisco Police officer Tony Flores have noted being surprised by a lack of false reports.  Others have seen more questionable U visa petitions, such as one submitted after a woman’s teenage son slapped her when she told him to get off the computer.  What is most notable, however, is that whether the cap is 10,000 or 15,000, the amendment makes clear that a person must show “substantial harm,” and acceptance of a petition is discretionary.

Ultimately, Congress is getting closer to reauthorizing VAWA after more than a two-year lapse.  Even among its most prominent critics, VAWA generally is recognized as a positive advancement for the protection of domestic violence and sexual assault victims.  Congressional dissenters afford due credit for its role in “reducing the incidence of domestic violence by more than 50 percent, among other successes.”[10] Contrary to one of Villegas’s more superficial concerns, VAWA is still aptly named; studies makes clear that most victims are women,[11] and being so-named does not preclude men from its protections.  Ultimately, like any good bill, its shortcomings are outweighed by positives and after all, as Senator Bob Corker wisely quipped: “Up here, you can’t vote for part of a bill.” The House is expected to vote on the bill as early as next week.[12]



[1]Here’s a rundown of the salient points, according the Whitehouse:  The full text of the bill (S.47) can be found here:

[2] The Whitehouse adds the claim that the 1994 version of VAWA has caused the incidence of domestic violence to drop more than 50%.

[3] Recently gender-motivated crimes have received much global attention, prodded by recent exposés of India’s “rape crisis”:

[4] Christopher James Regan, A Whole Lot of Nothing Going On: The Civil Rights “Remedy” of the Violence Against Women Act, 74 Notre Dame L. Rev. 797 (1999).

[5] Emphasis mine

[6] For an excellent discussion about the merits of this provision, see DJ Harris, Native American Sexual Assault: Amendments to the Violence Against Women’s Act, Ala. Civ. Rights Blog (Sep. 5, 2012),

[7] While not entitled to a jury that mirrors the community as a whole, a criminal defendant is entitled to a jury pool of persons constituting a fair cross-section of the community.  See Taylor v. Louisiana, 419 U.S. 522 (1975).

[8] The Act specifically mentions jury selection in Section 904(f)(1)(H)(3).

[11] According to the report, 4 out of 5 victims of intimate-partner abuse are female.


The University of Alabama’s Road to Integration

By: Ashlee Riopka, Junior Editor

In 1831, the University of Alabama was formally organized as the state’s flagship institution of higher learning. [1]  Although the article and statute creating the University never referenced segregation, the University’s trustees remained obedient to the provision in the 1901 Alabama Constitution requiring that  “separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.” [2]  It wasn’t until 1952, over a hundred years after the University’s founding, that two African American applicants sought admission. [3]  The two applicants, Autherine Lucy and Polly Ann Myers, applied to pursue graduate degrees at the University, and eventually sought court intervention. [4]   Under direction from the Board of Trustees, the University deferred from acting on the applications, suggesting instead that the two women “find courses in subjects desired by them at Tuskegee Institution and the Alabama State College at Montgomery.” [5] 

While the women waited for action to be taken on their pending applications, the landmark case of Brown v. Board of Education was decided in which the Supreme Court overturned Plessy v. Ferguson, and held that state laws establishing separate schools for black and white students was unconstitutional. [6]  Brown’s wake prompted an equitable resolution and in 1955, the District Court for the Northern District of Alabama enjoined the University from denying Lucy and Meyers or other similarly situated  individuals from “the right to enroll in the University of Alabama and pursue courses of study, solely on account of their race or color.” [7]  As a result of the district court decision, the Board voted to permit one litigant’s enrollment at the University. 

In February of 1956, Autherine Lucy enrolled and attended the first three days of classes, despite the board’s denial of her dorm and dining privileges. [8]  Lucy’s admission incited violent reprisal from members of the community and the student body.  Angry mobs gathered to chant racist epithets and throw gravel and eggs at Lucy, ultimately necessitating police escort. [9]  In response to the enraged mob, the Board opted to suspend Lucy and cited safety concerns in support of its decision. [10]  Despite a court order requiring termination of Lucy’s suspension, the University’s Board of Trustees adopted a resolution for Lucy’s permanent expulsion due to statements in her pleadings regarding her belief that University officials conspired in violating the district court’s order requiring her admission. [11] Although Lucy was expelled, her initial admission laid the formative groundwork for the University’s “sustained desegregation” seven years later. [12] 

Before sustained desegregation took hold in Alabama’s higher education institutions, George Wallace—one of the most controversial politicians in American history—was elected governor of Alabama in 1962. [13]  Wallace made segregation the centerpiece of his campaign, and echoed this focus in his inaugural speech, declaring his support for “segregation now, segregation tomorrow, [and] segregation forever.” [14] Wallace gained rampant notoriety for his inaugural speech, particularly due to his vehement vow to “stand in the schoolhouse door” and prevent federal integration efforts from bleeding into Alabama’s universities. [15]  However, in 1963, Wallace’s vow to prevent integration efforts would be sharply tested.  That year, two students, Jimmy Hood and Vivian Malone, applied for admission into the University of Alabama’s main campus. [16] Hood and Malone were scheduled to enroll on June 11, 1963.  [17] On the morning of June 11, 1963, Wallace, surrounded by state troopers, positioned himself outside the doors of Foster Auditorium, ready to resist Hood and Malone’s enrollment efforts through an action of symbolic opposition. [18]  Wallace’s attempt to thwart Hood and Malone’s enrollment efforts would ultimately solidify his “nationwide reputation for white resistance.”  [19]

Anticipating Wallace’s resistance, President John F. Kennedy issued proclamation 3542, directing Wallace to comply with former court orders allowing Hood and Malone’s enrollment. [20]  Before Hood and Malone’s arrival, the U.S. Deputy Attorney General arrived to confront Wallace with Kennedy’s proclamation, accompanied by federal marshals and a federalized National Guard. [21]  After the U.S. Deputy Attorney General requested Wallace’s compliance with the proclamation, Wallace delivered a speech that appealed to federalist sentiments. [22]  Wallace stated in part:


“The unwelcomed, unwanted, unwarranted and force-induced intrusion upon the campus of the University of Alabama today of the might of the Central Government offers a frightful example of the oppression of the rights, privileges and sovereignty of this state by officers of the Federal Government . . . I stand here today, as Governor of this sovereign state, and refuse to willingly submit to illegal usurpation of power by the Central Government.  I claim today for all the people of the State of Alabama those rights reserved to them under the Constitution of the United States.  Among those powers so reserved and claimed is the right of state authority in the operation of the public schools, colleges, and Universities.” [23]


In his response to Wallace’s impassioned rhetoric, the U.S. Deputy Attorney General subtly mocked Wallace’s own campaign mantra when he stated, “Those students will remain on this campus.  They will register today.  They will go to school tomorrow.” [24]   After the Deputy Attorney General’s response, the Governor remained stationed outside Foster Auditorium until a few hours later when General Graham of the Alabama National Guard approached Wallace, in his federalized capacity, and acknowledged that it was his “sad duty” to require Wallace’s compliance. [25]  After acknowledging that Graham’s duty was “a bitter pill . . . to swallow,” Wallace finally yielded to federal pressure and stepped aside to allow Hood and Malone’s enrollment. [26]  Years later, Wallace later expressed regret for his segregationalist stance, stating: “I was wrong . . . Those days are over and they ought to be over.” [32]  While Wallace’s repentance served as a mildly authentic example of the regenerative nature of human perception, his symbolic stand in 1963 would “plague him politically” for the remainder of his career. [33]        

The event that transpired on June 11, 1963 marked a significant turning point in Alabama’s civil rights history and paved the way for other African American students to attend the University.  In fact, the following day, another African American student, Dave McGlathery, was able to enroll at the University of Alabama in Huntsville without similar opposition. [27]  By 1965, thirty-one black students were enrolled at the University, and just two years later this number increased to 119 black students among the population of 12,251 students. [28]  Malone became the first African American to graduate from the University in 1965, and later worked for the civil right’s division of the U.S. Department of Justice [29], and in 1988, the University finally overturned Autherine Lucy’s expulsion, allowing her to return to the University and graduate with a master’s degree in 1992. [30]  Although Hood withdrew not long after his initial enrollment, he later returned to finish a doctorate degree in 1995. [31] 

The stories of these students are inspiring, and demonstrate strength and resilience in the face of overwhelming adversity.  The individual story of each student represents a unique civil rights victory, yet the legacy of the University’s road to integration is arguably two- fold. [32]  On one hand, Alabama’s initial resistance to integration represents “an enduring stain on Alabama’s education record and a sad testament to the treatment of its own people.” [33]  On the other hand, Alabama’s final integration “served as a turning point for the state and its steps towards racial equality.” [33]  Even though the events leading up to the University of Alabama’s integration were rocky and politically charged, the end result’s significance is undeniable.  Ultimately, the University’s integration led to open enrollment for minority students among the majority of colleges throughout the Southern region, and opened the doors of educational opportunity to all individuals regardless of race, serving to heighten the educational experience of all students. [34]   


[1] U.S. v. State of Alabama, 628 F.Supp. 1137 (1985).

[2] Id.

[3] Id.


[5] U.S. v. State of Alabama, 628 F.Supp. 1137 (1985).


[7] Id.

[8] U.S. v. State of Alabama, 628 F.Supp. 1137 (1985).

[9] E. Culpepper Clark, The Schoolhouse Door: Segregation’s Last Stand at the University of Alabama 72-73(1993).

[10] Morris, Allen, Maurrasse & Gilbert, White Supremacy and the Higher Education: The Alabama Higher Education Desegregation Case, 14 Nat’l Black L.J. 59, 75 (1995).

[11] U.S. v. State of Alabama, 628 F.Supp. 1137 (1985)




[15] Id.,

[16] U.S. v. State of Alabama, 628 F.Supp. 1137 (1985)









[25] Id.

[26] Id.,


[28] U.S. v. State of Alabama, 628 F.Supp. 1137 (1985)



[31] Id.


[33] Id.





Kiobel v. Royal Dutch Petroleum: A New Case for Human Rights


By: Brittany Hoover, Junior Editor

The United States Supreme Court plans to rule on a controversial human rights case this year that has many human rights activists anxious for a result. This controversial case was first argued in October in the second circuit and involved a lawsuit brought by Nigerians against Royal Dutch Petroleum under an 18th-century anti-piracy law that allows foreigners to sue in U.S. courts for human rights abuses occurring overseas. “The stakes are seen as huge by international human rights groups, because should the court void the use of the Alien Tort Claims Act, it would prevent activists from trying to hold multinational corporations accountable for their behavior overseas in American courts.”[1]

The Supreme Court will decide exactly how far the Alien Tort Statute (ATS) should reach and what types of cases the act actually provides a remedy for.[2] The ATS  which provides, in relevant part, that foreign citizens may bring civil suits in U.S. district courts for actions “committed in violation of the law of nations or a treaty of the United States.” The ATS was enacted as a part of the Judiciary Act of 1789, and has rarely been invoked in any court cases.

1980, in Filartiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit gave teeth to the i statute when it found that the ATS conferred jurisdiction over a lawsuit brought by one Paraguayan national for torture that occurred in Paraguay.[3]

Only one other case has been brought to U.S. courts which is Sosa v. Alvarez-Machain, a case brought by a Mexican national against other Mexican nationals who kidnapped the plaintiff so he could stand trial for drug charges in the U.S.[4] In Sosa, the Court held that lawsuits could be brought under the ATS for certain International violations; it did not discuss how far the ATS should expand to other countries.

In the current Kiobel cases, twelve Nigerian citizens are suing three European oil companies for various human rights violations including aiding the Nigerian military in killing and torturing civilians who protested oil exploration in Nigeria.[5] For the court to allow the ATS to expand to all foreign individuals would be a huge victory not only for these plaintiffs but all victims of human rights violations. However, the simple question of  “What business does a case like this have in the courts of the United States?” provides an insight into the Court’s hesitation to expand the ATS to cover victims all over the world.[6] After the first round of oral argument, the Court ordered a second round of briefing and oral argument, on the question of “whether a case like Kiobel can be brought in U.S. courts at all?”[7]

These questions are valid for national security reasons. Many nations already feel as though the U.S. tries to expand its jurisdiction too far and involves itself with too many foreign issues. In addition, the U.S. has its own domestic issues to worry itself with. With the memory of Somalia and other failed missions to help people in foreign countries, the Court may not want to turn the United States court system into a jurisdiction open to all with grievances. The European companies involved are citizens of European countries that are supposed to adhere to the rules of the U.N. If these plaintiffs have a grievance with the companies, then they should sue the companies in European courts.

However, the stories are compelling and the injustice is so great that many people want to see the U.S. as the beacon of righteousness, fearing that foreign courts do not provide adequate justice. The court may also worry about upsetting European nations or other future nations by conferring jurisdiction to private individuals. The court is trying to exert jurisdiction over companies that do not readily engage in business in the U.S.  The best course of action would be to allow some sort of test for jurisdiction similar to that of minimum contacts where the parties will have to prove that the defendants had some connection with the U.S. before they can be sued under U.S. laws. This will limit the number of cases that could burden the judicial system while giving a legitimate reason for the court finding jurisdiction over the defendants in the case. Hopefully, the court can find a middle ground that can ensure that victims of human rights violations have their day in court.


[1] Steven Rosenfield, 8 Civil Liberties Cases Supreme Court Will Tackle in 2013, Alternet,

[2] Kali Borkoski, Kiobel v. Royal Dutch Petroleum: What’s at stake, and for whom?, Alternet,


[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

The Gun Control Debate: What is the Proper Balance of Liberty and Safety?


By: Chris Richard, Junior Editor 

            The massacre of 26 individuals – 20 children and 6 adults – at Sandy Hook Elementary School in Newton, Connecticut is a truly tragic event that will be remembered perhaps forever by all Americans.  There is no way to adequately describe the horror that occurred on December 14, 2012.  The tragedy at Sandy Hook, along with other recent shootings, has propelled gun control talks to the forefront of political discussion.    

The resulting debate on gun control has polarized Americans.  Along with the National Rifle Association (NRA), many Americans believe that stricter gun control laws are not the correct approach, and they fear encroachment upon their Second Amendment Rights.  On the other side of the debate are those that believe – and justifiably so – that more expansive gun control laws are entirely acceptable in order to protect all Americans, especially kids in schools.  To what extent can gun control laws be tightened before serving as an unconstitutional restriction on the Second Amendment right to bear arms?

The Second Amendment to the United States Constitution guarantees that “the right of the people to keep and bear Arms, shall not be infringed.”[1]  The immediate question is to what extent the Second Amendment protects the rights of Americans to bear what arms.  Some argue that the right to bear arms is a collective right given to the States, focusing on the ability of the State to raise a militia.  Others might take this notion of collective right further, arguing that it only belongs to individuals actively serving in the militia.  Conversely, others argue that the right to bear arms is a private right held by all individuals.

Justice Scalia, in his opinion in District of Columbia v. Heller,[2] resolved this debate by declaring for a majority of the Court that the Second Amendment protects an individual’s right to bear arms, even though not in active military service, provided that the arms are used for lawful purposes.  Importantly, Justice Scalia also noted that the right to bear arms under the Second Amendment is not boundless.  Like most rights, it may be subject to reasonable limitation.  In Heller, the Court struck down various laws prohibiting handguns in the home and requiring firearms to be disassembled or trigger-locked.  In striking down the gun controls, the Court emphasized the individual right to defend oneself, especially in one’s own home, and noted that the laws served as a ban on an entire class of weapons used for self-defense in the home.

In the current gun control debate, there are many individuals and organizations, including the NRA, that have urged that the right to bear arms includes the right to bear assault rifles.  The NRA has vehemently contested any form of gun control law that would restrict or eliminate the right to own assault rifles or high-capacity magazines.  These individuals argue that high-capacity magazines and assault weapons are simply for sport or part of how they may defend themselves.  Conversely, these groups would favor placement of a security officer in schools for the protection of students and teachers.  Such officers would be subject to intense physiological and background screening to ensure that they are fit for the duty of protecting schools.  These groups also propose expanding the budget for mental health services in an attempt to catch psychological issues before they may manifest in violence. 

On the other side of the debate are those who believe that stricter gun control laws are absolutely the answer to the problem.  Such proponents urge for assault weapons bans as well as bans on high-capacity magazines.  Furthermore, they argue that stronger background checks should be used in addition to other measures to ensure that dangerous and psychologically unstable individuals are unable to obtain firearms and other weapons.  If nothing else, they argue, it will make it that much more difficult such individuals to obtain firearms.  In addition, this group questions the opposition’s desire to possess military-style assault weapons and high capacity magazines.

The President, on January 16, 2013, introduced a series 23 executive orders relating to gun control.[3]  Among these measures are a ban on military-style assault rifles and high-capacity magazines, and the closure of several background check loopholes to prevent weapons from landing in dangerous hands.  The President also seeks to devote more attention to mental health services and evaluations, as well as make schools safer.  These measures, among others, were signed by the President along with a request that Congress pass additional gun control laws as well.[4]  Many have already questioned the President’s method for accomplishing meaningful change in gun control, arguing that it is unconstitutional to bypass Congress regarding such serious measures.  However, that is a debate for another time. 

Regardless of the method of change utilized here, it is patently clear that something must be done to prevent senseless slayings like that in Sandy Hook.  It is not quite as clear whether gun control laws are the best answer, or even the right answer at all.  It seems as though criminals and other nefarious sorts will be able to obtain their arsenal regardless of the gun control laws imposed.  The proposed gun control laws may simply make it more difficult for law-abiding citizens to obtain firearms for self-defense, while criminals may easily obtain firearms and other weapons through black markets. 

Additionally, it seems that time, efforts, and money would be better spent regulating the source of what appears to be the problem:  mental health diagnosis and treatment.  Though the President’s executive orders certainly highlight the importance of mental health in the gun debate, it arguably should be given more attention.  Our focus should not be on preventing mentally unstable individuals from obtaining guns.  Rather we should focus on diagnosis of mental disorders and disabilities that lead to violent outlash.  In this way, we may not only make the community safer, but may provide meaningful treatment and rehabilitation to individuals that suffer from mental health issues. 

In conclusion, there are certainly grounds for individuals to be upset about increased gun control laws, whether it affects their self-defense needs or their recreational desires.  At this point, however, it seems irrational to jump to the conclusion that increased gun control laws will lead down the slippery slope to an absolute ban on possession of firearms.  At the same time, it is important to note that gun control is not the only means by which to protect us from future violence.  In fact, we may benefit both society, and individuals alike, by devoting more attention to the mental health needs of America. 

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