Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Local (page 1 of 7)

Weighing the Options of Care

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By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Over 23,000 mentally disabled people were on the waiting list to receive housing and medical care from any of the eight state-operated developmental centers (SODC) in Illinois.  Another 600 were in emergency situations awaiting services. The State of Illinois could not provide essential services to those on the waitlist because it already cared for nearly 25,000 people.  In 2012, Illinois planned to close roughly a third of its SODCs to save costs. The state chose to close the Warren G. Murray Development Center, an SODC. Residents of Murray faced relocation due to the planned closure. The state tried to shift the residents of the SODCs to community-based facilities because it is cost effective.

Before the residents are moved, the state must assess their fitness. The assessment determines what kind of facility the disabled person will be placed in. Standing in the state’s way were the guardians of the Murray residents; the guardians wanted to prohibit the state from carrying out the assessment without their consent. The Illinois League of Advocates for the Developmentally Disabled represented the plaintiffs. They sued the Illinois Department of Human Services under 42 U.S.C. § 12132 of Title II of the American with Disabilities Act.  Plaintiffs alleged discrimination by a public entity.

The guardians claimed treatment of residents at community-based facilities are worse than at SODCs.  In addition, the guardians claimed the state left them with no other choice but to accept the relocation of the wards. Plaintiffs filed for a preliminary injunction against the assessment and transfer of the wards.  The case went before the district court of Northern Illinois.  The district court denied the plaintiff’s request.  Plaintiffs appealed to the Seventh Circuit Court of Appeals.

Judge Posner, Manion, and Hamilton presided over Illinois League of Advocates for the Developmentally Disabled, et al. v. Illinois Department of Human Services, et al. and affirmed the district court’s holding.  Plaintiffs failed to prove mistreatment of their wards at community-based facilities. The judges relied on factors such as emotional benefits of community-based facilities, the likelihood of residents having his or her own room, and the lack of irreparable harm on the plaintiffs in affirming the decision.

First, the judges reasoned that community-based facilities are emotionally beneficial for the residents. Being near stores, parks, restaurants, or movie theaters bring emotional benefits that allows them to feel free. Second, the chances of residents having his or her own room is better than at SODCs where less than 29 percent have their own room. Community-based facilities are less crowded than SODCs.  Finally, the judges thought that granting the preliminary injunction would impose irreparable harm on the state because of the financial distress.

SODCs are isolated medical centers cut off from society. Although the mentally disabled are severely hindered in life, it does not mean that they cannot experience the joy of being a part of the community. Academic studies show that severely disabled persons feel less isolated at community-based facilities.  Yes, parents or guardians should have the ultimate say in the care of their wards, but at times the state is in a better position to know what’s best in weighing the options of care.

Tax, Drugs, and Rock & Roll

Dolla Dolla Bill YallBy: Faith Alvarez
Valparaiso University Law School
J.D. Candidate, 2016

Tax Day was April 15, 2015, a day when some 60,000 low-wage workers in the United States walked off the job in more than 200 cities demanding a $15-an-hour minimum wage. The protest was reportedly held on Tax Day because more than 150 billion taxpayer dollars are spent on public assistance to support underpaid workers.

Then the following day, the Indiana House passed a measure that would require Indiana welfare recipients to take a drug test in order to receive benefits.

The cost of the program is about 2.2 million taxpayer dollars.

These tax dollars would in large be spent drug testing those earning minimum wage. Which, judging by the prior day’s protests, include fast-food workers, home-care aides, child-care providers, Wal-Mart clerks, adjunct professors, and airport workers.

Representative Terry Goodin is the author of this bill from Scott County, where there are more than 130 confirmed HIV cases – almost all are linked to drug use. His bill wasn’t new to Indiana, which has tried to follow other states with such a requirement before. But Goodin’s proposal is a bit different than past failed attempts. Specifically, his proposal would not take those who test positive off of welfare, but would provide counseling and drug rehabilitation programs. Nor would it impact anyone on disability, over 65 years old, or a child.

But then just hours after it passed with an 83-13 vote, Goodin told reporters that he was rethinking his decision.

Why the change of heart? He saw the statistics:

  • Only 9 of the adults testing positive for HIV in his home Scott County receive welfare benefits.
  • Otherwise, 60 adults in Scott County receive benefits on behalf of 93 children.
  • Statewide, about 3,909 adults and 17,194 children receive benefits.
  • The average payment is $88.30 per month in a child-only or one-parent family and $52.23 per month in a two-parent family.

After passing the measure, Goodin said, ” Maybe there’s not as much fraud as people say there is. … It even makes me rethink my position. Since now we found out the drug testing isn’t going to reach many people, maybe there’s a different way to reach these people who are hooked on drugs.”

After the state plans to spend $2 million on public relations expert Porter Novelli out of New York (plus the cost of actual advertising), how much are taxpayers willing to spend to find out who is smoking marijuana or taking heroin? Do we really know if the cost will be worth the potential savings?

Even Indiana’s own Rock and Roll legend John Mellencamp has chimed in on recent Indiana Politics, saying that he doesn’t want tax revenue from his ticket sales going to the Indiana government. His editorial can be read here.

What is going on in Indiana? Is there a disconnect?

Weighing Religious Freedom against Non-Discrimination

 

Religious FreedomBy: Alex Salvi
Valparaiso University Law School
J.D. Candidate, 2016

Last week Governor Pence signed Senate Bill 101, also known as the “Religious Freedom Restoration Act,” making the law effective. The bill allows private parties—including businesses open to the public—to invoke a religious defense in legal cases. The bill was approved by the Republican-controlled House by a 63-31 margin and reached the Governor’s desk last Monday.

Despite gubernatorial vetoes by a number of other governors of similar laws, Gov. Mike Pence resisted calls to veto the bill Monday evening. He issued a statement that the measure, “is about respecting and reassuring Hoosiers that their religious freedoms are intact. I strongly support the legislation and applaud the members of the General Assembly for their work on this important issue.” Other Republican leaders, like presidential hopeful Senator Ted Cruz and Governor Jeb Bush, have also backed Pence and the legislation.

The bill is modeled on the federal Religious Freedom Restoration Act (RFRA). Indiana’s law expands protections to disputes between private citizens and corporations, thanks to the 2104 Hobby Lobby decision. There, the Court ruled that closely-held corporations owned by shareholders with religious objections do not have to participate in arrangements under the Affordable Care Act resulting in their employees’ being covered for contraceptives. Senate Bill 101 attempts to prohibit a governmental regulation from substantially burdening an individual’s free exercise of religion, by allowing exemptions from legal requirements for  persons having religious objections to the applicable law unless the law is the “least restrictive means possible to further a compelling governmental interest.

Indiana’s S.B. 101, is broader than federal law RFRA (and also broader than many other state RFRA’s). While the Indiana bill says that a “governmental entity may not substantially burden a person’s exercise of religion,” it also applies those rules to businesses and interactions between private parties “regardless of whether the state or any other government entity is party to the proceeding.”

So, what legal topic or issue does that raise? Indiana’s RFRA could apply to any legislation or regulation, but many believe that the motivation for its passage is to allow individuals and businesses who object to same-sex marriage to claim exemptions from requirements that they not discriminate against same sex couples.

“The claims that the Religious Freedom Restoration Act is about licensing discrimination are completely off-base and misinformed. This legislation is simply about preventing the government from trampling on the religious liberties of Hoosiers” David Long, Indiana Senate President (R-Ft. Wayne) said in response to these allegations. “It does this my establishing a strict test for courts to use when reviewing government actions that may impact religious freedom. At least 30 states and the federal government already have this safeguard, and I support providing the same protections here in Indiana.”

This legislation is extraordinary in many ways, but the challenge underlying it is the tension between governmental regulations and free exercise, and then, more intensely free exercise versus a competing claim not to be the object of illegal discrimination. Consider also the effect on employees. When a person goes to work for a company, that individual may be affected by the belief system of its owners, but with no particular recourse under the law if the employee’s own belief system is violated. Employees who work for the corporations asserting free exercise exemptions seem to be overlooked. Finally, a background assumption of the bill is problematic. It is the notion that it would provide a workable, even common, religious exemption right from state regulations. And, there remains a substantial doubt as to its constitutionality, because the Supreme Court will be ruling on whether states have the constitutional right to ban same-sex marriage. If they do not, Indiana’s own RFRA is jeopardized.

Many employers may wish to qualify for Indiana’s state RFRA. But, courts have typically required compliance with content-neutral, generally applicable laws whether the regulated entity  agrees or not. Society cannot function if persons may opt out of things that offend them. As Galileo once said, “I do not feel obliged to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use in the discussion of religion.”

Many people, business, and civil rights groups have expressed their outrage over the new law. Connecticut Gov. Dan Malloy on Monday signed an executive order banning state-funded travel to Indiana, and the mayors of San Francisco and Seattle enacted similar bans. Apple, the NCAA and other companies have joined opposing groups in speaking out against the law.

The backlash has resulted in negotiations about how to fix the law. Governor Pence and members of the legislature are meeting this week in an attempt to balance the competing interests of business leaders and social conservatives. Pence issued a statement, “After much reflection and in consultation with leadership in the General Assembly, I’ve come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses a right to deny services to anyone.”

 

Op/Ed: Exercising your right to Vote

By: Jonathan Joseph, MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

America is in the midst of an identity crisis. On Tuesday, November 4, most eligible American voters will have abdicated their civic responsibility and have failed to exercise their right to vote. Even though the right to vote is one of the most distinctive characteristics of the American society, and increasing number of voters are willing, according to the United States Election Project, voter turnout in national elections have fallen below 65 percent. That percentage is even lower in local and state elections; the Indiana Tax Reporter noted dramatic decreases in voter turnout in state, local, and national elections in 2012. For more years than most voters have been alive, voter turnout has been stagnant despite increasing efforts to make it easier for voters to register and cast their ballots. It is important to realize that these statistics are for registered voters, who represent less than 70% of eligible voters. If voting turnout was reported in proportion to eligible voters, the numbers would be even more appalling.

These numbers indicate the trend for the entire country; some states did see an increase in voter turnout in 2012. According to the Government Accountability Board, Wisconsin hit 70% of its 4.4 million eligible voters and saw an increase of 2.9 million voters from 2008. Arguably, this increase could be due to it being a presidential election and having a key, open senate position. According to In.gov, Indiana fit the national trend in 2012 with 58% voter turnout. Furthermore, Illinois followed in Indiana’s footsteps with 59.3% voter turnout, down 6.7% from 2008.

This decline in civic engagement is alarming, not only because it signals American citizens’ lack of desire to participate in the democratic process, but it also demonstrates the citizens’ willingness to be governed by people they did not help elect. This suggests widespread apathy regarding self-determination and reveals a corresponding lack of candidate effectiveness in motivating the populace to vote. The corresponding decline in the effectiveness on the part of both national political parties to motivate voters to cast their ballots illustrates the parties’ failure to remain meaningful in the lives of American voters. Turnout for 2012’s presidential primary election was roughly half the number that voted in 2008. The political partisanship that has characterized each of the past two presidential elections has divided the nation. Rancorous primary battles have left scars and undermined popular support for the candidates who survive; third-party candidates are perceived as spoilers rather than viable alternatives.

Low voter turnout sends a dangerous message to young citizens who are unlikely to develop the passion for civic engagement unless they have meaningful examples set by their parents, teachers, and role models. The democratic political process has to be reshaped so that it again is perceived as relevant. Becoming informed of political issues and candidate stance and qualifications is a fundamental responsibility of all eligible voters. History is made by those who show up: it is this nation’s collective responsibility to engage itself fully in supporting the best candidates for office and holding them accountable to the electorate so that the overall meaning and performance of an elected government is elevated to its highest standard.

Death Certificates: Resurrecting an Issue

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By: Faith E. Alvarez
Valparaiso University School of Law
J.D. Candidate, 2015

Here’s a riddle: A guy is lying on a bed – dead. Next to the bed is a glass of ice cold, bloody water. The window is open, and it’s a cold day. How did he die?

None of your business!

Well, at least that was an acceptable answer until Tuesday when the Indiana Supreme Court decided that it actually could be your business.

In Evansville Courier & Press v. Vanderburgh County Health Dep’t, the Court held that certificates of death are public records that a county health department must give public access to under the Indiana Access to Public Records Act. (Oh, and how did he die? Someone threw an icicle through the window, it went through the guy, and landed in the glass.)

The facts of the legal case were pretty basic. In June 2012, the Vanderburgh County Health Department received a request from Rita Ward for death certificates from the prior month. The health department denied her request because she did not have “a direct interest in the matter” nor was “the certificate necessary for the determination of personal or property rights or for compliance with state or federal law.”

Unsatisfied, she got an advisory opinion from the Public Access Counselor of the State of Indiana, who explained that while the State Department of Health could deny her request, the local health department could not. The following day, the Evansville Courier & Press newspaper requested access to all Vanderburgh County death records from May 2012. The request was denied.

Naturally, Ward and the Courier & Press proceeded to sue the Vanderburgh County Health Department for access to those records. However, the trial court concluded that because the State Department of Health could deny the request and the State required the local health departments to retain death certificates, “clearly” the legislature’s intention was to allow local health departments to likewise deny requests for death certificates. The Indiana Court of Appeals affirmed the trial court in a unanimous panel.

But the Indiana Supreme Court reversed, applying a presumption in favor of disclosing public records. The county health department’s primary contention was that death certificates are not “public records,” rather confidential records, exempting them from disclosure. (Think of deaths that have been ruled suicides or homicides. Families generally want that information to stay private.)

The Supreme Court pointed to an eerily similar case from 1975 – Evansville Printing. In that case, an Evansville Press reporter requested a death certificate from the Evansville-Vanderburgh County Department of Health. The request was denied; the county said the cause of death was confidential. There however, the trial court concluded that the reporter’s request should have been granted and a unanimous Court of Appeals panel affirmed, concluding that local death certificates were not confidential records, but were in fact “public records.”

Fast-forward almost 40 years and the trial and appellate courts have done a complete 180°. The Indiana Supreme Court acknowledged this change of heart but reaffirmed the 1975 Indiana Court of Appeals holding. A death certificate request must be granted by a county health department. Only the State Department of Health can deny such a request.

The opinion recognized that public disclosure of the details of one’s death may cause pain to the family but declared that we must be mindful of the importance of open and transparent government, concluding that the public interest outweighs private.

Do you agree with this outcome?

Does that “public interest outweighs private” statement apply to other programs, like Indiana Medicaid?

Seventh Circuit Sides With Suppression

vote button

 

By: Alexander Salvi
Valparaiso University School of Law
J.D. Candidate, 2016

The Seventh Circuit Court of Appeals reinstated Wisconin’s voter identification law in a 5-5 split decision, requiring voters to present a valid form of photo identification when they go to the polls to vote in November.

The American Civil Liberties Union filed a federal lawsuit claiming that Wisconsin’s voter ID law was unconstitutional and deprived citizens of the right to vote, as provided under the Constitution and the Voting Rights Act. In April, U.S. District Judge Lynn Adelman struck down the law as unconstitutional, agreeing that it unfairly burdens poor and minority voters who may lack proper identification.

Last month, Republican Attorney General, J.B. Van Hollen, appealed to overturn that ruling and the Seventh Circuit Court of Appeals lifted the District Judge’s stay, allowing the law to go into effect before the November election. The Seventh Circuit judges will determine the merits of the attorney general’s appeal at a future time, but as of September 12, voters will be required to show a valid photo ID in order to cast their ballots.

The panel hearing the case was Reagan appointee, Judge Frank Easterbrook, and G.W. Bush appointees, Judge Diane Sykes and Judge John Tinder. The decision was split 5-5 due to the fact that the court has one vacant seat, created in 2010 when Judge Terence Evans took senior status. The vacancy made it possible for the court to vote 5-5 and as a result the law will stand for the time being. All five judges who voted to lift the injunction—including the three that lead the panel—were Republican appointed judges.

Supported Voted ID Law (appointed by) Opposed Voter ID Law (appointed by)
Judge Sykes (G.W. Bush) Judge Hamilton (Obama)
Judge Tinder (G.W. Bush) Judge Wood (Clinton)
Judge Easterbrook (Reagan) Judge Williams (Clinton)
Judge Flaum (Reagan) Judge Rovner (G.H.W. Bush)
Judge Kanne (Reagan) Judge Posner (Reagan)

The appointments of each judge are significant because the issue has proven to be one of ideology more so than a trier of facts. Democrats claim that the GOP is being selective with who votes by suppressing the voters to those with right qualifications/demographics who favor them, and argue that there isn’t enough time before the election to properly implement the law. Meanwhile, the law is heavily supported by GOP members who claim that the intent of the law is to prevent voter fraud. According to a 2006 Department of Justice study, only 40 of nearly 197 million voters were indicted for voter fraud between 2002 and 2006 with only 26 receiving guilty pleas. In other words, between 2006 and 2006 only .00000013 percent of the votes casted resulted in convictions.

One thing you don’t hear very often is, “You know what’s wrong with our democracy? There’s too much voting.” The United States has only been a true democracy for about 50 years, acknowledging the fact that women did not have the right to vote until 1920, and blacks until 1965. Despite the strides we’ve made, however, we’re still working on it.

The decision may seem to make sense on the surface. After all, you need to show a photo ID to buy liquor and, similarly, voting can also make you wake up and ask yourself “What the hell did I do?” while spending the morning next to a garbage can. It may not seem like the most significant issue in the news, but the ruling would effect the very nature of our governmental system. By the legislative branch having the pose to choose who votes in each election, we are stepping away from our traditional idea of democracy and into the ideas of authoritarianism. If legislature wanted to reach the same outcome they are attempting to achieve by pushing for voter identification laws, they might as well pass a law that says only members of congress can vote.

Panhandling: The Seventh Circuit on the Power to Regulate It

Panhandling1

By: Aaron Medley
J.D. Candidate, 2015
Valparaiso University Law School

A person’s exercise of his or her freedom of speech may have a meaningful impact on the lives of others. On one hand, most of the speech we encounter in public spaces is merely inconvenient, rather than coercive; on the other, public expression can be disruptive of the normal patterns of life. Regardless the of the impact the government is permitted to place reasonable time, place and matter restrictions on expression, but it may not regulate to suppress its content absent extraordinary circumstances.

Panhandling on public streets has been an especially vexing instance of this. Are laws that prohibit or regulate the manner or places where begging for money may occur directed at the message inherent in begging—that the individual is poor and the government unwilling or unable to help—or simple regulations of dangerous conduct—like standing in the middle traffic to beg—or a blend of both? The answer to these questions impact the standard of review to be applied to the panhandling law in question, and the choice of the standard practically determines the outcome of the challenge to it on first amendment grounds.

In recent years, there have been different anti-panhandling cases to go before the federal circuit courts. The Ninth, Fourth, and Sixth Circuit Court of Appeals concluded that ordinances before them that prohibited this speech were content-based, and the government did not meet strict scrutiny standard of review. Meanwhile, the D.C. and First Circuit Court of Appeals ruled that anti-panhandling laws were content-neutral and valid. This clear split amongst the circuits has left more questions than answers. Even more troubling is that the U.S. Supreme Court has dealt with three such laws or regulations and upheld the laws on grounds that the government had a clear proprietary interest in the forums. Thus these types of laws are still left open to be attacked as content-based restrictions on a person’s freedom of speech, which would invoke a higher standard of review for the government to meet.

Recently the Seventh Circuit faced the question whether an ordinance is a content-based or content-neutral in Norton v. City of Springfield. Judge Easterbrook, writing the decision, relied upon the First Circuit case of Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014) and Justice Kennedy’s concurrence in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), to find that an anti-panhandling ordinance was reasonable and constitutional. The ordinance in question belongs to the City of Springfield, Illinois. It prohibits panhandling in its downtown historic district, containing most of the city’s shopping, entertainment, and governmental buildings. The ordinance defines panhandling as “an oral request for an immediate donation of money,” but permits the use of signs requesting money or oral pleas to send money in the future. Springfield justifies the ordinance by distinguishing signs and future requests for money – more intrusive than immediate oral requests.

Plaintiffs challenged the ordinance on grounds that it improperly distinguished between oral requests for immediate receipt of money and the use of signs to request the money or oral requests for future donations. This, they argued, showed that the ordinance was directed at content, not regulatable conduct. Their arguments goes to the core of the First Amendment jurisprudence and which limitations on speech are to be deemed appropriate and under what circumstances limitations will be constitutional. However if the court accepted the plaintiff argument, not restriction would be upheld. It would leave precedence that whether legislatures narrowly tailor an ordinance to more specifically meet allegedly legitimate governmental regulatory interests, or legislatures give general restrictions which are not narrow to meet government needs, both would be held unconstitutional.

Judge Easterbrook observed,

The rule that regulation of speech must be narrowly tailored, becomes an engine of destruction, because every effort to narrow a rule will distinguish some speech from other speech and so in plaintiff’s view, doom it.

Continuing into its analysis the Seventh Circuit observed that in each Supreme Court case involving the anti-panhandling laws, the Supreme Court required that the regulations must be reasonable. Judge Easterbrook focused on Justice Kennedy’s concurrence in Lee, where Kennedy found that an anti-panhandling regulation was an appropriate time, place, and manner limitation, independent of the venue analysis that the majority relied upon. Further highlighting that Justice Kennedy found that the ordinance was permissible because “it was narrowly tailored,” and because it dealt only with potentially threatening confrontations. Thus, Kennedy saved the regulation in Lee because the ordinance’s limitation on solicitation for immediate receipt made it narrowly tailored, which is the part of the Springfield ordinance that plaintiffs argue that makes it unconstitutional.

Judge Easterbrook adopted Justice Kennedy’s concurrence as the appropriate analysis as to whether Springfield’s ordinance would be upheld as a constitutional under the standard for time, place, manner restrictions. He found support from the First Circuit case of Thayer, where that court also accepted Justice Kennedy’s view would carry the day. Where Easterbrook’s opinion turns interesting, is where he expressed doubts as to the conclusion that the ordinance was content-neutral. Leaving to the Supreme Court to settle the question as to what is required to determine whether an ordinance is content-based or content-neutral.

The anti-panhandling cases among the federal circuits display a split not only in outcome, but as to what the proper analysis for content-based or content-neutral restrictions should be. Speech is an incredibly powerful right that each of us possess as Americans. What we say each day can have impact on our society, or just be inconvenient to others. These cases and the issues presented point to the complexity of the laws and how courts will treat the restrictions on asking for money on a street corner. This analysis must be taken up for the Supreme Court, to determine the appropriate analysis will be between content-based and content-neutral laws.

Better Hold Off Sexting With High School Students

338px-SextingBy: Faith E. Alvarez
Valparaiso University School of Law
J.D. Candidate, 2015

The Indiana Supreme Court issued a three page Per Curiam decision this week in Corbin v. State. This is an important decision because it more or less closes a startling gap in Indiana law.

Robert Corbin was a high school teacher and coach who sent explicit Facebook messages to one of his 16-year-old students. The opinion does not dwell on the facts, but basically he asked her to sneak out after her parents were asleep so they could have sex.

Corbin was charged with two counts of attempted child seduction. However, Corbin’s attorney argued that his conduct did not fit the definition of “attempt” and moved to dismiss the charges.

The legal gap is this: Child seduction is a crime; child solicitation is not. Corbin was merely sending her Facebook messages, so was he attempting to seduce or solicit? Furthermore, under the Indiana Code, a person “attempts” to commit a crime by culpably engaging in conduct that constitutes a “substantial step” toward the commission of a crime. Corbin argued that while he may have been soliciting her, it was not his intention to “immediately” seduce her.

While the trial court disagreed with Corbin, the Court of Appeals held that his Internet solicitation was not a “substantial step” in attempting to seduce her. The court’s rationale was that it was simply an invitation that she could reject since the teacher was not physically present – no pressure! However, the Indiana Supreme Court sided with the trial court.

All justices of the Indiana Supreme Court concurred on the ruling. Rather than directly filling the gap, they held that “the [attempted child seduction] charges match the statutory elements and are sufficient to survive a motion to dismiss at this time.” In a nod to the appellate court, they noted that in the area of sex offenses against children, there are often subtle behaviors and contexts that must be reviewed before making a conviction. Because Corbin’s attorney moved to dismiss the charges before the trial court could examine the evidence, it remained unclear whether Corbin’s messages were attempting to seduce or solicit his 16-year-old student.

This appears to mean that Facebook messages may be attempted seduction or solicitation depending on the evidence. But either way, those accused of attempted child seduction by media message will at least have to go to trial.

Is this enough to fill the gap? Will this be a signal for the legislature to change the law?

School-to-Prison Pipeline: Indiana State Legislature Examine the Disproportionate Suspension of Minority Youth from K-12 Schools.

dirty hall

By: Jessica Sullivan
Valparaiso University School of Law
J.D. Candidate, 2015

On September 16, 2014 Indiana Lawmakers held a four-hour hearing at the Statehouse to discuss how the legislature can stage an intervention in an effort to halt the startling trend of disproportionately suspending and expelling Indiana’s minority youth. According to a recent study conducted by the U.S. Department of Education, Indiana has the second highest rate of suspension and expulsion in the nation when it comes to minority youth; the only state that surpassed Indiana was Wisconsin.

Advocates and researchers are imploring state lawmakers to step in and help curb this trend. Indiana University education researcher Russell Skiba told the joint House-Senate study committee that the increased use of out-of-school suspension for routine or minor infractions, such as profanity and dress code violations, not only undermines student achievement but also imposes high societal costs. Skiba went on to say that, “Zero tolerance and the over use of school suspension and expulsion place students at risk for a range of negative outcomes from academic underachievement to dropout, to involvement with the juvenile justice system.” Skiba’s research found that “Indiana, where about 70 percent of students are white, 48 percent of the students given out-of-school suspension last year black or Latino. That’s up from about 44 percent in 2007.” According to the Kokomo Tribune, “Students are being punished for breaking school rules and not the law. Only 25% of school suspensions were linked to violence or illegal activity.”

This notion that it is beneficial to get “bad kids” out of school because of their bad behavior is simply false.  According to the report’s findings, schools that used suspension more sparingly than others had HIGHER test scores – not lower. According to Brandie Oliver, the president of the School Counselors Association, the problem is deeper than high suspension rates among minority students. If you look at the ratio of male to female students, African-American and Latino males are the most-frequently suspended.

Ultimately, lawmakers that were a part of the four-hour hearing had mixed reactions to the report’s findings. State Rep. Jim Lucas, R-Seymour felt that “If a child is actively committing an offense,” there is no problem with using suspension or expulsion as a solution to addressing that behavioral issue.  On the other hand, Rep. Vernon Smith – D – Gary, a well-known African-American educator, said that the underlying issue is the lack of resources for early intervention with a troublesome student. “What we often have is punishment discipline.” But having discipline should mean having alternatives to out-of-school suspension or expulsion for minor school rule offenses (profanity, uniform violations, and the like).  Smith explained that having early intervention resources would help “bad kids” learn from their mistakes and improve their behavior.

For now it remains unclear how Indiana plans to tackle this problem, but it is clear that the U.S. Department of Education’s study was a nationwide wake up call for lawmakers and school officials to consider the following:

  • The “school-to-prison pipeline” is more than just a metaphor. Extensive research shows that disciplinary exclusions increase a student’s risk for a variety of negative school and life consequences, including dropping out of school and juvenile delinquency.
  • Given the extreme differences in suspension rates across different groups, researchers have concluded that unintended teacher bias is a real occurrence. “Several studies indicate … that racial disparities are not sufficiently explained by the theory that black or other minority students are simply misbehaving more.”
  • New longitudinal studies at the state and national levels indicate that school suspensions are associated with higher risks of dropping out of school. Researchers “found that even being suspended out-of-school once was associated with a two-fold increase in the risk of dropout.” The increased risk of dropping out, in turn, increases the risk of juvenile delinquency.
  • There is a dramatic disconnect between the educational and juvenile justice systems. Their practices can even be contradictory. For example, in many communities, students who have been expelled are, by definition, violating juvenile delinquency laws and are subject to arrest.
  • Maintaining a police presence in schools more often than not leads to the increased criminalization “of what might otherwise be considered adolescent misbehaviors.” The best available evidence “suggests that police presence in schools, particularly armed police, should be a very last resort in school discipline strategies.”

While a four-hour hearing is not enough time to address the issues that are plaguing minority Hoosier students, the Indiana legislature is willing to continue the conversation. Rep. Greg Porter, D- Indianapolis introduced legislation that would call for further studies of these troublesome suspension and expulsion policies and a summer study committee has been charged with doing this task.

The School Matters blog gives a great summary for lawmakers, school officials and the community at hand, saying that the issue of disproportionate suspensions and expulsions among minority students is both an educational and civil rights issue.  “The discipline gap and the achievement gap are two sides of the same coin.”

For a brief summary of the U.S. Department of Education’s findings – both nationwide and specific to Indiana – go to the IU Bloomington Newsroom. To see further research in this area of Discipline Disparities please visit The Discipline Disparities Research-to-Practice Collaborative.

For the full report of the U.S. Department of Education Findings please visit the Civil Rights Data Collection report.

Walker Investigation Found to be a State Issue

bag of money

By: Alexander Salvi
Valparaiso University School of Law
J.D. Candidate, 2016

The Seventh Circuit Court of Appeals unanimously overturned a lower court ruling that halted an investigation into allegations of illegal coordination between Governor Scott Walker’s re-election campaign and nearly two dozen conservative groups.

The three judge panel hearing O’Keefe v. Chisholm included Ford appointee William Bauer, Clinton appointee Diane Wood, and Reagan appointee Frank Easterbrook. Although the lower court ruled that the investigation infringed upon political rights protected by the First Amendment of the United States Constitution, the court of appeals concluded that federal courts do not have a place in state criminal proceedings. Therefore, state courts are the proper venue to resolve such a legal issue. “State courts are free to conduct their own litigation, without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt,” the three-judge panel ruled. The state of Wisconsin will now decide whether to continue the investigation into Governor Walker’s alleged campaign finance violations.

Walker made a national name for himself when he challenged public sector unions in 2011by eliminating collective bargaining rights for public employees. That decision led to a 2012 recall of Walker, which he ultimately won with 53% of the vote, making him the first governor in United States history to overcome a recall election.

The current investigation largely revolves around the type of political activity taken by conservative groups during the 2011 recall campaign, and whether such activity violated laws prohibiting coordination with candidates and political donations. In 2012, Walker raised $25.3 million for his campaign, 57% of which came from out of state. This was an amount that towered over his opponent Tom Barrett, who raised $831,510, 13% of which came out of state.

The First Amendment protects most independent expenditures by outside groups as speech, but those groups generally are not allowed to coordinate with officeholders or their staff. This was the violation that prosecutor Francis Schmitz alleged, claiming that Walker was part of a “criminal scheme” to coordinate fundraising for Republicans and conservative groups who were involved in a tough 2012 recall campaign against Walker and several GOP elected officials.

The case began earlier this year when multiple conservative groups, known to be supporters of Walker, filed a federal lawsuit. The plaintiff, Wisconsin Club for Growth, argued that the investigation was a violation of their freedom of speech rights. At the district court, Judge Rudolph Randa granted a preliminary injunction ordering Wisconsin state prosecutors to halt their investigation into Governor Walker. The Seventh Circuit rejected that ruling and the Wisconsin Club for Growth can now request a rehearing by either a three-judge panel or the full Seventh Circuit.

The decision comes at a pivotal moment – as Governor Walker faces reelection this November against Democratic challenger and former Trek Bicycle Corp. executive Mary Burke. In response to the Seventh Circuit’s decision, Burke stated, “The people of Wisconsin deserve answers to the questions raised by this investigation, which at a minimum are very disappointing, and are potentially criminal.” According to the most recent Marquette University Poll, Walker is losing his re-election bid against Burke by 2 percentage points among likely voters. However, the poll also shows that Walker is winning by 3 points among registered voters.

The earlier decision by the district court effectively delayed the investigation when it denied requested subpoenas—a separate appeal of which is currently going through the state court system—saying there was not sufficient evidence to demonstrate anything illegal had transpired. Thus, any legitimate investigation probably won’t begin until after the outcome of the election. That’s not to say that the negative publicity won’t affect Walker’s future, as he has expressed interest in a possible Presidential run in 2016.

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