President's weekly update — June 21, 2013
Individual Rights — Equality Under the Law Project
The Supreme Court granted cert this week in the long-anticipated Township of Mount Holly v. Mount Holly Gardens Citizens in Action. We filed this amicus brief in favor of the petition (but not in favor of either party for reasons explained below.) As our blog post notes, if this case does not settle out first, it may give the Court the opportunity to decide whether “disparate impact” is a meaningful legal test for determining the existence of unlawful discrimination. As we have long argued, “disparate impact” has much more to do with the consequences of the disproportionate prevalence of poverty in minority communities than with the presence of unlawful discrimination. It is wrong to accuse entities of discrimination simply because the application of neutral policies (such as objective educational standards for jobs or neutral credit inquiries for loan applicants) reflect the consequences of existing patterns of income and education in minority communities. Much needs to be done to rectify such societal problems, but punishing employers and lenders does not help.
This particular case involved the use of the power of eminent domain in a redevelopment action, the sort of abuse of government power that we’re not at all enamored with. In too many cases, the victims of eminent domain are the poor and politically powerless who gain nothing when well-connected developers show up with bulldozers and slick dreams of upscale shopping centers. So, while the abuse of eminent domain should be stopped, so too should the use of “disparate impact” statistics to prove alleged discrimination.
Individual Rights — School Choice
There was a partially positive and partially adverse decision this week in Duncan v. New Hampshire where a superior court in New Hampshire struck down that state’s tax credit scholarship program, but only for use in private non-religious or public schools — not for religious schools. We filed this amicus brief and explained the good and bad parts of the decision on our blog. Notably the court cited to our amicus brief for the proposition that the law was passed with secular, not religious, intent. Onward and upward!
A Tale of Two Courts
When the California Supreme Court is about to issue a decision, it notifies the parties the day before. That’s really quite helpful and it allows the parties to plan accordingly. When the United States Supreme Court issues a decision, no one knows until the moment it is issued. That’s great for amping up the readership of SCOTUSblog which does a live feed of the decisions, and as a result has attracted over tens of thousands of readers on some recent mornings, including a substantial number of PLF attorneys. Imagine all the drama we’d be spared if the Court let us know a day, or even an hour, in advance which decisions it is about to render.
What to read next
One of the most fundamental rights of American citizens is the right to seek redress from illegal government action in a court of law. But the federal government has an arsenal of weapons it wields to deny or curtail this right. Nowhere is this more prevalent than in the government’s attempts to stifle landowner suits challenging federal agency action under the Clean Water Act.