Monthly Archives: November 2014

The Aftermath of Fisher v. University of Texas: Where Do Colleges and Universities Go From Here? By Kevin D. Finley

The Aftermath of Fisher v. University of Texas: Where Do Colleges and Universities Go From Here?

By Kevin D. Finley

Equal access to education is one of the most pressing civil rights issues challenging our nation.[1]  To many Americans, an offer of admission from a prestigious institution is perceived as the equivalent of a “golden ticket” to a successful career and heightened social status.  However, top-tier colleges and universities have very few available seats for admitted students relative to the massive applicant pool.  Consequentially, students seeking undergraduate, graduate, and professional school degrees, engage in fierce competition for admission each year.  Since admissions decisions are based primarily on an applicant’s personal statement, standardized test scores, and grade point average, students are under immense pressure to excel throughout their academic careers to gain a competitive edge over their peers.  Therefore, it is unsurprising why the use of an applicant’s race as a “plus factor”—created by racial affirmative action policies—remains a topic of intense debate and bitter divisiveness.

Current State of the Law Governing the Use of Affirmative Action in Higher Education

The United States Supreme Court has struggled for decades over how colleges and universities may use race in admissions.[2]   The Court’s most recent ruling in Fisher v. University of Texas—anticipated by many legal scholars and higher education professionals to be the Court’s official pronouncement ending any consideration of race in admissions—was anticlimactic at best.  The Court left open the issue for the lower courts to apply its latest articulation of the strict scrutiny standard.[3]  At present, the law is this: (1) an institution of higher education may consider the race and ethnicity of applicants as a factor in admissions decisions for purposes of diversity, provided that it is not used too mechanically and that all applicants are evaluated on an individualized basis.[4]  The university must prove that means chosen to attain diversity are narrowly tailored to that goal;[5] and (2) a reviewing court is not permitted to give any deference at all to the college or university when assessing the constitutionality of an admissions program.[6]

Justice Kennedy’s opinion in Fisher affirmed that narrow tailoring does not require the “exhaustion of every conceivable race-neutral alternative.”[7]  However, the opinion clarifies that strict scrutiny does require a court to “examine with care, and not defer to a university’s serious good faith consideration of workable race-neutral alternatives.”[8]  In other words, in order to survive strict scrutiny, a reviewing court must be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.[9]  And if a non-racial approach could promote the substantial interest about as well, and at a tolerable administrative expense, then the university may not consider race.[10]  Ultimately, strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.[11]  Thus, in deciding Fisher, the Court did not overrule Grutter and declare the use of race in admissions unconstitutional.  Rather, in the words of Stanford law professor Richard T. Ford, it merely “doubled down” on the strict scrutiny standard.

Lower Courts Will Face Difficulty Applying the “New” Strict Scrutiny Standard

The difficulty in application of the law stems from the second prong.  Critics of the opinion, such as law professor Scott D. Gerber —and opponents of affirmative action policies generally—argue that if lower courts abide by the Supreme Court’s directive issued in Fisher, admissions programs across the nation will be invalidated because race is used “heavy-handedly” rather than modestly when rendering admissions decisions.[12]  If, however, lower courts continue to defer to academic institutions, the institutions will continue to dissemble and prevaricate in order to try and avoid having their “illegal programs” declared illegal.[13]  According to Gerber, this is exactly what happened recently on remand in the U.S. Court of Appeals for the Fifth Circuit in the Fisher case.[14]

The application of the law is complex, and begs the question: Can a court correctly assess whether or not the means chosen by a university to achieve diversity places too much emphasis on an individual’s race?  The answer is unclear.  And perhaps the lack of clarity surrounding this question is precisely why this issue will likely make its way back to the Supreme Court in the near future.

Where Do College and Universities Go From Here?

If the Supreme Court ultimately decides to ban the use of race from consideration entirely from the admissions process, or if more states take action and ban such practices through voter initiatives, all colleges and universities will be forced to resort solely to race-neutral alternative measures to attain diverse student populations.  Either outcome would most likely be viewed by opponents of affirmative action as a “victory” of sorts, as even such limited consideration of race currently utilized in holistic reviews of applicants, would be illegal.  As a result, colleges and universities would have to give more weight to specific admissions criteria that are sometimes close substitutes for race—that may or may not manufacture more diversity.  For example, using geographic diversity and zip codes as a way of promoting racial, ethnic, and economic diversity.[15]  Another option is to reduce reliance on standardized tests.[16]  Proponents of this idea argue high school grades are a better predictor of performance than SAT scores, and have a much less discriminatory impact against minority students.[17]

Although the prospect of race-conscious admissions policies becoming unconstitutional is unsettling among supporters, such a result should not be viewed as a complete defeat, but as an opportunity to spur Americans who care about racial inequality to seek alternatives to affirmative action.  This can be accomplished by addressing the deeply entrenched disadvantages that lower-income and minority children face from the beginning of life.[18]  To some extent, race-based affirmative action has been a woefully inadequate weapon in the arsenal against inequality.  It treats the symptoms, but not the causes of an underlying social problem.[19]  For instance, the racial and socioeconomic gap in academic performance is one of America’s most pressing domestic issues.  Despite the No Child Left Behind law, the Race to the Top initiative and endless debate over K-12 school reforms—accountability, standards, smaller classes, more effective teachers, better pay, charter schools, extended day, yearlong schools—the performance gaps (between races) have persisted, especially in the later ages.[20]

Perhaps, rather than resort to these race-neutral alternatives, universities can take a bolder step by putting their endowment and influence behind a comprehensive effort to close the learning gap that starts at birth.[21]  An additional solution would be for prominent institutions to address undermatching of minority students.[22]  Arguably, this is the least controversial way to boost racial, ethnic and economic diversity—involving no preferences—by getting talented minority and disadvantaged students to apply to selective colleges in greater numbers.[23]  Researchers have found that lack of understanding about need-based financial aid and poor guidance counseling are contributing factors to minority and low income students failing to apply to selective colleges at which they would likely be admitted and succeed, instead selecting less selective institutions or none at all.[24]  Increased information about colleges and financial aid can address this issue.[25]

 

 

Conclusion

As the law currently stands, race-neutral alternatives appear to be the preferred mode of operation to achieve diversity—largely because it is less objectionable than the blatant use of race in the court of public opinion.  However, studies have proven that they are not as effective in increasing the population of underrepresented students on college campuses as race conscious admissions policies.[26]  Further, an outright constitutional ban on the consideration of race in the admissions process would cause the already abysmal numbers of minority students in higher education to plummet further.  Due to the ever-changing demographics in our country, this should raise concern not only for minorities, but all Americans, because it is economically imperative to tap into the talents of America’s new majority.[27]  The twin trends of increasing economic inequality and the racial and ethnic shift in the population mean that America can no longer afford to bypass its growing number of low-income and minority students.[28]   If we do not dramatically expand college access and opportunity for poor students generally, and minority students specifically, we are headed for catastrophe.[29]  Thus, should the Court ever strike down the use of race in admissions evaluation, opponents of the policy should not cheer, and proponents should not jeer; both should take action to find solutions to improve access to higher education for all, because the future of our nation depends on it.

[1] Liz Leer et al., Education Emerges as Prominent Civil Rights Issue, Survey Says, THE NEW CIVIL RIGHTS, (last visited Nov. 22, 2014), civilrightsproject.wordpress.com.

[2] See generally Regents of Univ. Cal. v. Bakke, 438 U.S. 265 (1976); Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. Univ. of Tex., 133 S. Ct. 2411 (2013).

[3] See Fisher v. Univ. of Tex., 758 F.3d 633 (5th Cir. 2014).

[4] Grutter, 539 U.S. at 337.

[5] Id.

[6] Fisher, 133 S. Ct. at 2421.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Scott D. Gerber, Affirmative Action and the Crisis in Higher Education, Huffington Post Politics: The Blog, (October 13, 2014, 5:59AM), http://www.huffingtonpost.com/scott-d-gerber/affirmative-action-and-th_b_5675128.html.

[13] Id.

[14] Id.

[15] See generally Richard D. Kahlenberg, A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences, THE CENTURY FOUNDATION, http://tcf.org/assets/downloads/tcf-abaa.pdf (last visited Nov. 22, 2014) at 1.

[16] Id.

[17] Richard D. Kahlenberg, The Future of Affirmative Action: New Paths to Higher Education Diversity After Fisher v. University of Texas, THE CENTURY FOUNDATION, http://apps.tcf.org/future-of-affirmative-action (last visited Nov. 23, 2014) at 160. According to legal scholars John Brittain of the University of the District of Columbia Law School and former chief counsel of the Lawyers Committee for Civil Rights, and his coauthor Benjamin Landy, civil rights groups have made a “Faustian bargain” with universities in which civil rights advocates have not challenged the racially discriminatory impact of the SAT so long as universities provide affirmative action.

[18] Thomas J. Espenshade, Moving Beyond Affirmative Action, NYTIMES, (Oct. 4, 2012), http://www.nytimes.com/2012/10/05/opinion/moving-beyond-affirmative-action.html?_r=0.

[19] Id.

[20] Id.

[21] Id.

[22] Kahlenberg, supra note 17 at 138-139.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 28.

[27] Id.

[28] Id.

[29] Id.

The Need for Clarity in the Community Caretaking Exception to the Fourth Amendment  By Trent Dressen

The Need for Clarity in the Community Caretaking Exception to the Fourth Amendment

 By Trent Dressen

The community caretaking exception to the warrant requirement of the Fourth Amendment entered American jurisprudence with a whisper and has evolved into an unintelligible scream. The Supreme Court should sort out the noise to ensure effective law enforcement action and protection of Fourth Amendment rights.

The community caretaking exception can be traced back to Cady v. Dombrowski.[i] In 1969, Chester Dombrowski, a Chicago police officer, drove a car that he had rented off the road in West Bend, Wisconsin.[ii] Dombrowski appeared to be intoxicated and was arrested for drunk driving.[iii] Wisconsin authorities, under the impression that Chicago officers were required to keep their service revolver on them at all times, searched the vehicle in an attempt to locate the revolver.[iv] The search yielded evidence that led to Dombrowski’s conviction of murder.[v]

The Supreme Court held that the search was constitutional.[vi] It reached this conclusion by expounding on the “reasonableness” standard as stated in the Fourth Amendment.[vii] Furthermore, it found the search to be reasonable because it was done in a vehicle, which was in a location that was vulnerable to intruders, and was completed as a community caretaking function – totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.[viii]

The Supreme Court has never explored the implications of Cady outside of automobiles or in other context where police officers are acting as community caretakers.[ix] Four circuits have adopted the community caretaking exception, and limited it to the context of automobiles.[x] Three circuits have expanded the scope of the exception to include homes.[xi] Meanwhile, the remaining circuits have remained silent or chosen to punt when the opportunity arises.[xii] Additionally, several state courts have cited the exception in opinions.[xiii] Wisconsin, one of the states to adopt the exception, has even allowed for officers to have a motivation based in police investigation, so long as the caretaking motive is “paramount.”[xiv]

The responsibilities of local police officers extend far beyond simply enforcing criminal law.[xv] Local authorities respond to medical emergencies, help lost children locate their parents, or check on the elderly.[xvi] As a former police officer of five years, I can confirm having performed each of these functions countless times and also performing several more that do not fall under the purview of criminal investigation. I wholeheartedly agree with Herman Goldstein when he said, “The total range of police responsibilities is extraordinarily broad….Anyone attempting to construct a workable definition of the police role will typically come away with old images shattered and new-found appreciation for the intricacies of police work.”[xvii]

Considering the broad scope of police responsibility, and the amount of interactions that take place between citizens and police officers under the community caretaking umbrella, it is definitely a legal principle worthy of the Supreme Court’s attention as it has not been meaningfully revisited since 1973.[xviii] The circuit split mentioned above further adds to the need for clarification. Moreover, officers in the states where the community caretaking exception has not been established, through the circuit or state court, are left frequently confronting these situations without a standard by which to gauge their conduct.[xix] Additionally, and perhaps most importantly, citizens are left without knowing how to firmly protect their Fourth Amendment rights.[xx]

The Supreme Court has successfully revisited legal principles that it had established in the past.[xxi] In Gant, the Court limited searches of automobiles, when conducted incident to lawful custodial arrest, to circumstances where the officer can demonstrate a continuing threat to their safety or a need to preserve evidence related to the crime of arrest.[xxii] Previously, the search incident to arrest had become a hardline rule in the wake of two Supreme Court rulings.[xxiii] Over time, officers began abusing the rule, and the Supreme Court stepped in to establish the boundary.[xxiv] At the time the Gant opinion was issued, I was a police officer in Salt Lake City, Utah. The ruling had an immediate impact on our police work. My fellow officers and I were promptly trained on the new ruling. Afterward, we knew any search of an automobile incident to arrest would have to be accompanied by objective reason, and would no longer be allowed as a per se rule.

In comparison, the baseline for the community caretaking exception was established over 40 years ago.[xxv] Modern day courts have gone so far as to further define that baseline, ensuring that law enforcement do not take advantage of the exception where the Court’s original rationale does not support the search.[xxvi]  However, the outer edge of the exception is muddy and varies from jurisdiction to jurisdiction, if it exists at all.[xxvii] Law enforcement officials and citizens alike would benefit from the Supreme Court clearing things up.

[i]   Cady v. Dombrowski, 413 U.S. 433 (1973).

[ii]   Id.

[iii]   Id.

[iv]   Id.

[v]   Id. at 448.

[vi]   Id. at 434.

[vii]   Id. at 441.

[viii]   Id. at 441, 448.

[ix]   Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261, 299   (1998).

[x]  Gregory T. Helding, Stop Hammering Fourth Amendment Rights: Reshaping the Community Caretaking Exception with the Physical Intrusion Standard. 97 Marq. L. Rev. 123, 126 (2013).

[xi]  Id. at 127.

[xii]  Id.

[xiii]  See, e.g., U.S. v. McGough, 412 F.3d 1232 (2005) (holding that even if the community caretaking exception did exist, it would not apply in the circumstances of the case).

[xiv]  Helding, supra note 10 at 143-48.

[xv]  Livingston, supra note 9 at 261.

[xvi]  Id.

[xvii]  Id.

[xviii]  Cady, 413 U.S.at 433.

[xix]  Harry Stevens, Salt Lake City Police Department Clears Officers Who Shot Dog, The Salt Lake Tribune (Nov. 18, 2014, 8:00 PM), http://www.sltrib.com/sltrib/news/58250381-78/olsen-kendall-police-department.html.csp.

[xx]  Id.

[xxi]  See, e.g., Arizona v. Gant, 556 U.S. 332 (2009) (revisiting search incident to arrest).

[xxii]  Id.

[xxiii]  New York v. Belton, 453 U.S. 454 (1981) (holding that an officer may search the passenger compartment of a vehicle after making a lawful custodial arrest of an occupant); Thornton v. United States, 541 U.S. 615 (2004) (holding that an officer may search the passenger compartment contemporaneous to arrest, even when the officer does not make contact until arrestee has left vehicle).

[xxiv]  Cady, 413 U.S.at 433.

[xxv]  Id.

[xxvi] See, e.g, State v. Gonzaels, 236 P.3d 834 (Or. Ct. App. 2010) (holding that the community caretaking exception does not apply where police searched a vehicle that was parked in the defendant’s own driveway).

[xxvii] Helding, supra note 10 at 127.

A New Face on the Same Problem: The State of Alabama Fifty Years Later By Julie Gafnea

A New Face on the Same Problem: The State of Alabama Fifty Years Later

By Julie Gafnea

Thursday, October 30th, Apple CEO Tim Cook announced in Businessweek that he is proud to be gay.[1] This followed just two days after his controversial speech at the State Capitol on behalf of the Alabama Academy of Honor Class of 2014 inductees.[2] He focused his remarks on the state of Alabama fifty years after the signing of the Civil Rights Act of 1964.[3] In his speech, Cook, a native Alabamian, criticized his home state for being slow to grant equal rights to everyone, including the LGBT community. [4] “As a state we took too long to take steps toward equality and once we began, our progress was too slow.” He went on to proclaim that “we can’t change the past, but we can learn from it, and we can create a different future.”[5]

You don’t have to grow up in Alabama to know about the great struggles that were endured in the South during the Civil Rights Era. It was a tragic but glorious time of blood, sweat, and tears. It was also an era that gave birth to one of the most important pieces of legislation since the Constitution–the Civil Rights Act of 1964. This landmark piece of legislation outlawed discrimination based on race, color, religion, sex, and national origin in various contexts such as public accommodations engaged in interstate commerce, public facilities, and covered employers. [6] In addition, it also barred unequal application of voter registration requirements and encouraged the desegregation of public schools.[7]

This year, fifty years since the Act’s passage, there has been much reflection on the progress made and the victories yet to come. Here in Alabama, there is a clear attitude of celebration toward the Civil Rights Movement and everything it represents. However, there is a strange tolerance for the dearth of protections afforded to the LGBT community. The same types of discrimination faced by the African American community fifty years ago, now seeming so foreign and outrageous, continue to be legally accepted when directed at the LGBT community.

Using Alabama’s lack of protection from employment discrimination as an example, Cook stated that “in the state of Alabama, a person can still be fired based on their sexual orientation.”[8] Title VII of the Civil Rights Act of 1964 prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. [9] Despite attempts to persuade courts to include gender identity and sexual orientation under the category of sex, federal courts and the EEOC agree that Title VII does not protect individuals from employment discrimination on the basis of their sexual orientation.”[10] However, a hand full of recent decisions as well as the EEOC have found that workplace discrimination against transsexuals and gender nonconforming  individuals is sex discrimination under Title VII.[11] Many attempts have been made by Congress to end employment discrimination by passing the Employment Non-discrimination Act (ENDA).[12] Closely modeling existing civil rights laws, the Act would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity.[13] However, repeated failure has left the LGBT community largely at the mercy of state and local legislatures to pass similar laws.[14]

Alabama’s lack of protection for the LGBT community extends beyond the work place. Title II of the Civil Right Act of 1964 prohibits discrimination by places of public accommodation.[15] Public accommodations refers to both governmental entities and private businesses that provide services to the general public such as restaurants, movie theaters, libraries and shops.[16] However, it only prevents discrimination based on race, color, religion, or national origin. [17] Federal law does not prevent businesses from refusing service to customers based on sexual orientation or gender identity. Again, state and local laws must be relied upon to protect the LGBT community. [18] Thus, communities within hostile political climates like Alabama are largely left exposed and unprotected.

In addition to a lack of protection under the Civil Rights Act of 1964, the LGBT community lacks basic protection from housing discrimination. Section 1982 of Title 42 of the United States Code provides that all citizens of the United States shall have the same right in every state and territory as is enjoyed by white citizens of such state and territory to inherit, purchase, lease, sell, hold, and convey real and personal property.[19] Thus, it applies only to racial discrimination. The Fair Housing Act or Title VIII of the Civil Rights Act of 1968[20] prohibits discrimination in the sale, rental, financing of or other housing-related transactions based on race, color, national origin, religion, sex, family status or disability. [21] It also does not protect people against discrimination based on sexual orientation or gender identity.[22] However, the Department of Housing and Urban Development (HUD) recently enacted rules providing housing protections to LGBT individuals and families.[23] The rule adds additional nondiscrimination requirements to existing HUD programs as well as Federal Housing Administration programs such as mortgage insurance programs, community development programs, and public and assisted housing programs.[24] Thus, in a state like Alabama that has not passed any additional protection guarantee to the LGBT community, it is completely legal to deny someone housing based entirely on their sexual orientation or gender identity, if not subject to the newly enacted HUD requirements.[25]

State and local laws are also depended upon to enact hate crime laws protecting the LGBT community. Currently, Alabama’s  law only protects against offenses motivated “by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability.”[26] Alabama lacks any law addressing hate crimes based on sexual orientation or gender identity.[27] In 2009, Alvin Holmes sponsored House Bill 533 in his latest attempt to amend Alabama’s hate crime law to include crimes motivated by the victim’s sexual orientation.[28] Unfortunately, the full Senate did not take action on it before the legislature adjourned.[29] Thus, in Alabama there is still no hate crime law under which to charge someone for a hate or bias motivated crime against a member of the LGBT community.

As many know, in Alabama there is still no legal recognition of same-sex marital relationships. Among the harshest in the country, Alabama has passed the Alabama Marriage Protection Act [30] as well as the Sanctity of Marri of age Amendment to the Alabama Constitution.[31] Fortunately, on November 7, 2014, the Sixth Circuit issued a decision that upheld Michigan’s same-sex marriage ban. [32] This decision marks the first time a circuit court of appeals has upheld a state’s ban since the landmark Windsor decision. What initially looks like a step in the wrong direction is actually a large step forward, because it will likely produce the circuit split needed to compel the Supreme Court to take up the issue.[33] Therefore, Alabama will most likely, again, be forced unwillingly to recognize the constitutional rights of a minority group. Unfortunately, the Alabama LGBT community will simply have to wait until such a decision is made.

These are just a few of the examples of vulnerability Alabama’s LGBT community faces. Though the Civil Rights Act of 1964 is being celebrated for its fiftieth anniversary, here in Alabama the same types of discrimination continue to persist. Tim Cook was absolutely right to point out that Alabama has always been one of the last states to be dragged kicking and screaming through each social movement, especially when the movement has involved equal legal protection under the law for minority groups. Despite numerous achievements won during the Civil Rights Era and over the past fifty years, until the LGBT community in Alabama is given equal protections afforded to similar minority groups, the Movement will continue on without a satisfactory conclusion.

[1]Tim Cook, Tim Cook Speaks Up, Bloomberg Businessweek (October 30, 2014 ), http://www.businessweek.com/articles/2014-10-30/tim-cook-im-proud-to-be-gay.

[2] Erin Edgemon, Apple CEO Tim Cook Criticizes Alabama for not Offering Equality to LGBT Community, AL.com (last updated October 27, 2014, 4:35 PM),  http://www.al.com/news/montgomery/index.ssf/2014/10/apple_ceo_tim_cook_criticizes.html.

[3] Id.

[4] Id.

[5] Id.

[6] Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2 U.S.C., 28 U.S.C., and 42 U.S.C.).

[7] Id.

[8] Erin Edgemon, Apple CEO Tim Cook Criticizes Alabama for not Offering Equality to LGBT Community, AL.com (last updated October 27, 2014, 4:35 PM),  http://www.al.com/news/montgomery/index.ssf/2014/10/apple_ceo_tim_cook_criticizes.html.

[9] 42 U.S.C. § 2000e-2 (1964).

[10] Dianne Avery et al., Statutory Supplement to Employment Discrimination Law 453 (8th ed. The Labor Law Grp. 2010).

[11] Id.; Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt; Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011), http://www.eeoc.gov/decisions/0120110873.txt; Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011), http://www.eeoc.gov/decisions/0520110649.txt.

[12] Id.

[13] Resources: Employment Non-Discrimination Act, Human Rights Campaign (last visited Nov. 8, 2014),

http://www.hrc.org/resources/entry/employment-non-discrimination-act.

[14] As of October 9, 2014, 18 states and D.C. prohibit employment discrimination based on sexual orientation and gender identity: California (1992, 2003), Colorado (2007), Connecticut (1991, 2011), Delaware (2009, 2013), Hawaii (1991, 2011), Illinois (2006), Iowa (2007), Maine (2005), Maryland (2001, 2014), Massachusetts (1989, 2012), Minnesota (1993), New Jersey (1992, 2007), New Mexico (2003), Nevada (1999, 2011), Oregon (2008), Rhode Island (1995, 2001), Vermont (1991, 2007) and Washington (2006). Three states prohibit discrimination based on sexual orientation only: New Hampshire (1998), New York (2003) and Wisconsin (1982). Statewide Employment Laws And Policies, Human Rights Campaign (last updated October 9, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/statewide_employment_10-2014.pdf.

[15] 42 U.S.C. § 2000a (1964).

[16] Public Accommodations Laws And Policies, Human Rights Campaign (last updated October 9, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/public_accommodations_10-2014.pdf.

[17] Id.

[18] As of October 9, 2014, only 17 states and D.C. prohibit discrimination based on sexual orientation and gender identity by providers of public accommodations: California (2005, 2011), Colorado (2008), Connecticut (1991, 2011), Delaware (2009, 2013), Hawaii (2006), Illinois (2006), Iowa (2007), Maine (2005), Maryland (2009, 2014), Minnesota (1993), Nevada (2009, 2011), New Jersey (1992, 2006), New Mexico (2004), Oregon (2007), Rhode Island (1995), Vermont (1992, 2007) and Washington (2006). Four states prohibit only sexual orientation discrimination: Massachusetts (1989), New Hampshire (1998), New York (2002) and Wisconsin (2009). Public Accommodations Laws And Policies, Human Rights Campaign (last updated October 9, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/public_accommodations_10-2014.pdf.

[19] 42 U.S.C. § 1982 (1982).

[20] 42 U.S.C. § 3604(a) (1968); 42 U.S.C. § 3605 (1968).

[21] Housing for LGBT People: What You Need to Know About Property Ownership and Discrimination, Human Rights Campaign (last visited Nov. 08, 2014), http://www.hrc.org/resources/entry/housing-for-lgbt-people-what-you-need-to-know-about-property-ownership-and.

[22] Id.

[23] Ensuring LGBT Access to HUD Housing Programs, ACLU (last visited Nov. 8, 2014), http://www.lgbtagingcenter.org/resources/pdfs/HUDfactsheet.pdf.

[24] Id.

[25] As of October 9, 2014, 18 states and D.C. prohibit housing discrimination based on sexual orientation and gender identity: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Three states prohibit housing discrimination based on sexual orientation only: New Hampshire, New York and Wisconsin. Statewide Housing Laws & Policies, Human Rights Campaign (last updated October 9, 2014),

http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/statewide_housing_10-2014.pdf.

[26] Ala. Code 1975 § 13A-5-13 (1994).

[27] As of June 19, 2013, fourteen states lack laws addressing LGBT inclusion into existing hate or bias crimes: Alabama, Alaska, Idaho, Mississippi, Montana, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Utah, Virginia and West Virginia. State Hate Crimes Laws, Human Rights Campaign (last updated June 19, 2013), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/hate_crimes_laws_022014.pdf.

[28] 2009 Ala. Legis. Serv. (West); HB 533 – Hate Crime Law Expansion – Key Vote, Vote Smart (last visited Nov. 8, 2014), http://votesmart.org/bill/9338/25453/hate-crime-law-expansion#.VF_Vh8nYcjJ.

[29] HB 533 – Hate Crime Law Expansion – Key Vote, Vote Smart (last visited Nov. 8, 2014), http://votesmart.org/bill/9338/25453/hate-crime-law-expansion#.VF_Vh8nYcjJ.

[30] Ala. Code 1975 § 30-1-19 (1998).

[31]Ala. Const. art. I, § 36.03. As of October 22, 2014, Alabama joins eighteen other states with constitutional amendments restricting marriage to one man and one woman: Alabama (2006), Arkansas (2004), Georgia (2004), Kansas (2005), Kentucky (2004), Louisiana (2004), Michigan (2004), Mississippi (2004), Missouri (2004), Montana (2004), Nebraska (2000), North Dakota (2004), Ohio (2004), South Carolina (2006), Tennessee (2006) and Texas (2005). Only five of these states’ law or amendment have language that does not affect other legal relationships such as civil unions or domestic partnerships: Florida, Kansas, Nebraska, Missouri and Tennessee. Statewide Marriage Prohibitions, Human Rights Campaign (last updated October 22, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/marriage-equality.pdf.

[32] DeBoer v. Snyder, Nos. 14–1341, 3057, 3464, 5291, 5297, 5818, 2014 WL 5748990 (6th Cir. Nov. 6, 2014).

[33] Since Windsor, state same-sex marriage bans have been ruled unconstitutional in the Tenth Circuit, Fourth Circuit, Seventh Circuit, and Ninth Circuit. Marriage Litigation, Freedom to Marry (last visited Nov. 8, 2014), http://www.freedomtomarry.org/litigation.

Confronting Virtual Autopsies By Joe Davis

Confronting Virtual Autopsies

By Joe Davis

The Sixth Amendment to the Constitution reads:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and 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, and to have the assistance of counsel for his defense.”[1]

Embedded within the amendment is what we have come to refer to as the “Confrontation Clause,” which stands for the principle that all criminal defendants are to be afforded the opportunity to be “confronted with the witnesses against [them].”[2]  This principle is one with great historical precedence, dating back even to biblical times.  During Paul’s trip through the province of Asia, as he attempted to spread Christianity, he was arrested by Jewish elders who planned on putting him to death.  Eventually, he was handed over to the Romans, who saw to it that he have a trial, as it was “not Roman practice to hand over an accused person before he has faced his accuser…”[3]

In modern practice, the Confrontation Clause is most commonly referenced in order to keep out hearsay statements; all those who testify against a criminal defendant (with a few exceptions) should be available at trial and be subject to cross-examination.  Recent Supreme Court decisions have shaped the long-established rule, and defined its interaction with hearsay statements more clearly.  In Crawford v. Washington, the court found that statements made by the defendant’s wife to an interrogating police officer, if admitted, would violate the Confrontation Clause as long as said wife was not subject to cross-examination.[4]  In their discussion, the court clarified that the question to be asked concerning a statement was whether or not it was testimonial in nature.  If a statement is testimonial in nature, the court found that it could not properly be admitted, regardless of whether it fell under a hearsay exception or had other “indicia of reliability.”[5]

While Crawford dealt with spoken statements made by a witness, the court also listed non-verbal assertions that could fall under the new “testimonial” analysis, including affidavits.[6]  With the constant advances in scientific fields, especially forensics, courts found the discussion in Crawford inadequate, and looked for guidance in situations dealing with forensic evidence, including lab reports.  In 2009, the Supreme Court answered this question with its decision in Melendez-Diaz v. Massachusetts.  Here, the court held that a lab report prepared by a technician which stated that paraphernalia found on the defendant tested positive for cocaine, was testimonial, and therefore, inadmissible unless the defendant had an opportunity to cross-examine—or confront—the technician in question.

Even with the decision in Melendez-Diaz, there are still questions that remain unanswered by the Supreme Court.  One recurring question goes as follows: Is an autopsy report testimonial and barred by the Confrontation clause?  The majority of lower courts have decided to group autopsy reports in with lab reports, and consider them testimonial by Crawford’s standards.[7]  This seems like the correct outcome.  The ability of a defendant to confront the pathologist, whose determinations could be the difference between a verdict of “guilty” or “not guilty,” falls in line with the ideas of justice that underscore the Confrontation Clause. That being said, there are non-testimonial components of autopsies, including photographs and x-rays, that do not raise any Confrontation clause issues.[8]

As stated above, advances in science and technology are constant, and have raised yet another issue.  If it were possible to produce all of the information necessary in a murder trial, using only the non-testimonial components of autopsies, would a prosecutor be able to circumvent the Confrontation clause altogether?  The Virtopsy Project, based in Switzerland, hopes to make this situation a reality.  Led by Michael Thali at the Institute of Forensic Medicine at the University of Berne in Switzerland, the project has developed a system by which a 3D model of the body can be constructed and digitally manipulated using only CT imaging, magnetic resonance imaging, and photogrammetric surface scanning.[9]  In a homicide case, this 3D image would illustrate all of the signs of trauma, including bullet paths and stab wounds, as well as the effects of such trauma, such as soft tissue damage and bone fractures.[10]  In essence, it would give a juror the opportunity to be as if they were seeing a body on the autopsy table for themselves.  And because this 3D image is created by the use of all non-testimonial materials, there would be no violation of the Confrontation clause if the pathologist who performed the physical autopsy were not subject to cross-examination.

While I see considerable advantages that could accompany the “Virtopsy” approach, I am not certain that a complete circumvention of the Confrontation clause is among them.  As the field of forensics continues to advance, it is important to maintain the constitutional protections that criminal defendants have enjoyed in this country from the beginning, namely the ability to confront the expert who comments on the cause of death of their alleged victim, regardless of what basis said expert rests his conclusions upon.

[1] U.S. CONST. amend. VI.

[2] Id.

[3] Acts 25:16.

[4] Crawford v. Washington, 541 U.S. 36 (2004).

[5] Id. at 68.

[6] Id. at 51.

[7] Stephen Aiken, Autopsy Reports, the Confrontation Clause, and a Virtual Solution, 53 JURIMETRICS J. 213, 224 (2013).

[8] Id. at 231.

[9] Id. at 236.

[10] Id.

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