Wednesday, March 28, 2007

HR Magazine on family responsibility discrimination


In the April 2005 issue of HR Magazine, there is an article, on p 117, by Monique Gougisha and Amanda Stout: “We Are Family: Employees with family responsibilities are insisting on equal treatment, and are finding supportive voices in court.”

The article goes on to discuss family responsibility discrimination, both in terms of failure to properly apply the Family and Medical Leave Act of 1993 (FLMA) but also various other kinds of somewhat discriminatory treatment and disparate impact, particularly in the area of promotions and with respect to gender roles.

The number or proportion of adults with eldercare responsibilities has increased. In some cases, these will be borne by employees who have never married nor had their own children. Such employees may feel “ashamed” to ask for help when compared to people asking on behalf of their own children.

Many workplaces are salaried, with employees often on-call for production problems by pager or cell phone. Persons without such responsibilities may find themselves having to carry more of this responsibility without compensation as employers give leave to other employees with family emergencies.

FMLA provisions would not apply to very recent hire, and apparently not to contractors ("W-2 workers", common with temporary relocations in information technology) or workers paid by piece-work, a compensation method sometimes held to provide more jobs. Such workers would not be protected when they have family responsibility issues at home, even those without their own children.

Saturday, March 17, 2007

Constitutional questions over giving the District of Columbia a voting member of the House of Representatives


Another lesson in constitutional law is expected from the current debate over giving the District of Columbia one voting member in the House of Representatives. The member would certainly be Democratic, but the bill in Congress would also give a new representative to commonly Republican Utah, bringing the total from 435 to 437.

The President makes the facile argument that the Constitution gives the capacity to elect representatives to the House “only to members of the several states” and the District is not a state. The president threatens a veto, and the president has been quick to jump on his own opportunity to propose constitutional amendments or change constitutional doctrine to satisfy his own political agenda, as we the arguments that he made over "judicial activism" (albeit at the state level) in the debate over gay marriage. A counter argument (to the claim that only states may elect representatives to the House) is that the plenary powers of Congress would apply, allowing it to give the District representation, although that stretches the use of this argument when it allowed a non-voting representative. This comes from the so-called District Cluase, Article 1, Section 8, Clause 17, and it gives Congress the explicit power “To exercise exclusive Legislation in all Cases whatsoever, over such District. . . .” The American Bar Association has its own argument in favor of applying the District Clause (and justifying this with equal protection arguments) here.

The news story in the March 17 2007 The Washington Post is by Mary Beth Sheridan, “White House Opposes D.C. Vote: Constitutional concerns put bill in jeopardy,” here. A good blog article on the plenary powers is here:

The bill is described on Thomas as House Report 109-593 - Part 1 - DISTRICT OF COLUMBIA FAIR AND EQUAL HOUSE VOTING RIGHTS ACT OF 2006 The bill is HR 5388, and has this URL on Thomas, http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.5388: where you can read the exact text. (With Thomas, you may need to copy and paste the URL for it to respond.)

There seems little doubt that the historical opposition to not only statehood and Congressional representation for the District but also even home rule comes from the racial maekup of the City, a factor which undermined its baseball team more than thirty years ago.

Thursday, March 15, 2007

Landmark Supreme Court case on free speech in school March 19




One of the most visible cases involving teacher and student free speech will be heard before the Supreme Court on Monday, March 19, 2007. It is Morse v. Frederick. High school student and senior Joseph Frederick, in Juneau, Alaska, was suspended from school for carrying a banner that read “Bong Hits 4 Jesus” in a school-sanctioned parade not on school property. Frederick was also censured for paraphrasing Thomas Jefferson’s saying “speech limited is speech lost.” One reason for the principal’s objection is that Frederick seemed to be advocating smoking marijuana, but in Alaska state courts have ruled that adults may possess small amounts of cannabis.

There is a long audit trail of cases regarding teacher and student free speech, either on school property or in places (like the Internet now) where students are likely to find it. Generally, off-duty speech is protected unless it presents a significant threat to school discipline, order or safety, a very subjective notion. I have discussed these concepts on my book review blog with an entry on Feb 12, 2007, link here.

The story in The Washington Post, March 13, 2007, p. A03, is by Robert Barnes, and is called “Justice to Hear Landmark Free-Speech Case: Defiant Message Spurs Most Significant Student 1st Amendment Test in Decades. Here is the link (may require Post subscription).


Ironically, Frederick, now 23, is an English teacher himself overseas, and comes across, at least in news reports, as the sort of teacher who would be effective with intellectually more mature high school students.

Picture: Rotunda at University of VA, Charlottesville

Update: 3/19/2007

The Supreme Court did hear oral arguments on Monday, March 19, 2007. This date seems to be ten years to the date that it heard arguments on the Communcations Decency Act (a snowy March 19, 1997, when I attended from the three-minute line). I visited the crowd today, saw multiple signs of "students 4 free speech" and talked to one person protesting the death penalty.

The CNN News story is "Justices Hear 'Bong Hits 4 Jesus' case, here. Justice Breyer did a lot of the questioning, as was troubled about the possibility that students could go to great lengths to test the system, whereas siding with the school could really limit free speech.

This case is also troubling because it occurred off of school property. It could set important precedents regarding student and teacher speech on the own websites, blogs and social networking sites.

The long history of cases tries to balance legitimate discussion and dissent with behavior or demonstration that threatens the substantially vulnerable discipline in a public school environment that must educate a diverse population. Yet the diversity begs for openness in speech.

Update: June 25, 2007.

June 25, 2007. The Supreme Court rules 6-3 (Morse v. Frederick) (or 5-4, depending on how you count) that a school system in Alaska could suspend student Joseph Frederick for displaying a sign that read “Bong Hits 4 Jesus” at a school sponsored event just outside of school property on a public sidewalk. The message had been interpreted as prompting illegal drug use (at a school sponsored event however). Here is the CNN story. The opinion seems important in that it recognizes the concept of implicit content, although within close proximity to a school system. The Opinion is at this location: The dissent expressed a concern that this would allow schools to suppress legitimate political debate on libertarian arguments against drug laws.



Update: April 17, 2008

The Newseum in Washington has the "Bong Hits 4 Jesus" banner in its First Amendment display.

Wednesday, March 14, 2007

Racial and economic class divide on end-of-life care


Rob Stein has an article in the Sunday, March 11, 2007 The Washington Post, "A End of Life: A Racial Divide; minorities are more likely to want aggressive care, studies show", link here.

The studies, when examined in detail, relate the desire of relatives and adult children for extreme life-saving measures to economic class as much as race. Lower income people seem more likely to be caught in the emotions of the loss of life. That may be true of people of more religious backgrounds. During the Karen Schiavo case in Florida in 2005, one could see a variety of emotional responses.

The ability of modern medicine to prolong life for its own safe is creating unparalleled ethical and moral issues, and this may become more intense as nursing home expenses (not covered by Medicare, usually) increase and as filial responsibility, even for those without their own children, becomes a more pressing issue in the future.

The emotional divide over end-of-life issues and protectiveness among family members has sometimes become a hot topic in motion pictures, television series, and even soap operas.

Monday, March 12, 2007

Displacement of DC clubs for stadium shows home rule need; a lesson about eminent domain




Lou Chibbaro, Jr. has a complicated story in the March 9, 2007 The Washington Blade, "Liquor board ruling threatens displaced gay clubs; Graham reintroduces bill to allow one-time relocation," story here.


For readers in other parts of the country, this baseball situation brings it all together. As I grew up in northern VA, the Washington Senators were the laughingstock of baseball because of inept ownership and management by the Griffith family. Racism in Washington severely affected attendance and interest in the team in those days as segregation was being challenged. Although the team had a decent season in 1960 (as I started my senior year in high school) the team moved to Minnesota for 1961, and the "new Senators", also bad (except for 1969) took over for eleven years, until Bob Short moved them to Texas. (They would play at home and get clobbered by the Minnesota Twins the same week that Martin Luther King led his 1963 March on Washington.) Ironically, I would live in Dallas for 9-1/2 years in the 1980s, and Minneapolis for six years from 1997-2003. After 33 years, a rejeuvenated Washington DC proudly brings baseball back (the first three seasons in "pitchers' park RFK"), although even now the management seems lackadaisical. Look at how they let Soriano (the leading home run hitter and base runner) get away for nothing.

I certainly wish the best for a new stadium. I wish it could have more of the asymmetry and highwalls of Baltimore or Houston than the design chosen (or they could have recreated the outfield of the old Griffith Stadium). Redeveloping the Anacasotia makes sense. That was one of the poorest areas of the city, and the notorious "sex clubs" were located there. But only a few blocks further away, but still in the footprint of stadium-driven development, were the Edge (with the male dancers) and the Velvet Nation. In the 1990s and earlier we had enjoyed the Lost and Found, and, particularly, Tracks (which Velvet Nation replaced). These were fun places, even if I didn't like parking or walking in the neighborbood much. Washington DC needs one big disco club with a couple huge dance floors. Right now, judging from The Blade story, it is hard to see any area that will allow one to be built or located. These are not tawdry places. For the most part, the crowd there was great. (Who is going to "get it" on the dance floor tonight?) But they lost out to a real life board game of Monopoly or Trump (complete with "apprentices") or whatever else you call real estate development.

Washington DC's clubs have had serious problems with violence that have also threatened new restrictions on under-21 restrictions, but to my knowledge the gay clubs have not had any of these incidents. Illegal weapons and drug dealing, unrelated to the club management or patrons, did go on near the Nations club, and I once witnessed an incident and discussed it with police and club management myself.

It's understandable that residents are skittish, but think of the social consequences. Yes, the slums around Anacsotia are bulldozed, and the displaced residents are pushed to PG County, MD, where crime is rapidly increasing. In the mean time, office buildings, shopping malls, and expensive condos will sprout like mushrooms. If my own fortunes go OK, I could even wind up living right where the Nations was some day. That would be an irony.

The club owners would clearly have a better chance of finding suitable space if DC had a more straightforward government -- and more home rule. It does not sound like the Council has the power it needs, given the Blade story. Since I live in VA, I am not a s familiar with the details as the Blade reporting staff would be, but I certainly see the underlying problem.

The other issue here, of course, is eminent domain, and whether it is being abused. This topic has been a major item on the GLIL (Gays and Lesbians for Individual Liberty) 's boards for years. It's easy for those in power to abuse eminent domain for their own political agenda.

Sunday, March 11, 2007

Public schools drowning in lawsuit-proofing conduct rules


Ian Shapira has a story in the March 11, 2007 The Washington Post, p. A1, "Modern-Day 3 R's: Rules ..; Students Chafe as Schools' Web of Restrictions Grows", here.

The rules at schools around the DC area may not sound as draconian as in other communities around the country (especially in the South and Midwest), where kids have been suspended for the most trivial of "offenses" such as carrying a patent medicine from home accidentally. Of course, as the article points out, principals are under the gun, constantly worried about frivolous lawsuits from parents (as well as major incidents, however rare statistically), so many of them feel that they have no choice but to apply their rules with zero tolerance.

In fact, teachers have rules, too. In Virginia, there is a strict law against possession of a weapon, even unloaded and locked up, in one's automobile on school property, even if the car is locked. It does get enforced. It's not clear, however, that these sorts of laws get much beyond this one item.

Having been a substitute teacher on-and-off since 2004, I feel the silliness of being asked to sign pass books for students to go to the water fountain. (Some schools or regular teachers want to limit the bathroom breaks per quarter and dock points for excessive breaks! And there really is not enough passing time between classes, given capacity; although in high school I learned to manage fine with 5-minute transition periods between bells.) I know that 99.9% of the time there is no issue. I try to be low keyed about this, and I have no interest in pretending to be an authority figure (and protective adult) for its own sake. That gets into another tangential area -- my own interpersonal socialization, or lack of it (at 63, I have not raised a family of my own), and the question of whether others can depend on me to be a contingent authority figure when things have broken down around because of external circumstances beyond anyone's control according to ordinary norms of "personal responsibility." Short term subs have no real authority to make decisions that have any significant impact on students (such as their grades). As a practical matter, it can be difficult to enforce rules literally (like about cell phones) when in a particular set of circumstances applying them literally would seem to violate common sense.

In fact, as a boy, I resented the idea that adults would do things "just for authority" and expect me to perform certain unnecessary tasks just to prove that I could conform to social expectations when later it might become really necessary because of unpredictable calamities. (That whole style of thinking pervaded during the previous era of the military draft.) That whole concept of socialization and authority patterns creates a "perfect storm" with modern ideas of individual sovereignty and freedom -- yet kids cannot be free adults until they learn what the rules are. And the uncertainties of our world certain beg for people to learn to "get along" and pay their dues.

The best kind of class for a sub is one where the lesson plan indicates that the students are to complete some kind of project (other than take a test or quiz) during the class period, and hand it in. I then tell the students that this is a warm up for the real workplace. (The task could be to draw a map for history, develop an essay map according to a rubric, or fill in a math worksheet to develop the concept of a Riemann inegral.) When they get out and earn their own paychecks, they will find that employers expect certain specific things to be done correctly and on time (like balancing a cash register after a shift). So I tell them, pretend that this is a day at work. (After all, I spent thirty years in information technology, dealing with perfect quality assurance and promotions to production, and nighttime cycle abends and out-of-balance conditions; I hope that the legacy of this experience is worth something to them.) That day will come soon! Employers certainly like to hear this. (Keep in mind, some low-end jobs are very regimented and don't allow many bathroom breaks; I can imagine Barbara Ehrenreich running into this with her "Nickel and Dimed" book experiment.) Students who already have part-time jobs (or had summer jobs) often do seem to be more mature. They get this. My own father made so much virtue of "learning to work"!

By the way, some students wonder why they have to take and pass something like Algebra, whose abstractions mean nothing to them in the real world. Just go see the film "Maxed Out" and see how credit card companies take advantage of the mathematically unwary. Math problems -- especially the notorious "story problems" -- matter.

Quote from Stephen King, "Cell" (2006): "A young mind is a lamp in the darkness." (p 181).

Picture: Punta Gorda, FL, 2004, after Hurricane Ivan, a year before Katrina.

Friday, March 09, 2007

2nd Amendment: DC Appeals Court overturns DC residential gun ban


Today, March 9, the Appeals Court in the District of Columbia overturned a District of Columbia law that would prohibit residents from owning firearms (specifically, handguns) in their home for defensive purposes. DC residents, as those in the Capitol Hill area and various NW areas, especially in the LGBT community, have sometimes reported that gun ownerhip could save their lives and protect them given circumstances in their own neighborhoods.

The Court held that the Second Amendment should not be construed as meaning that one must be a member of a militia to own defensive weapons. There are obscure federal laws that actually defined able-bodied males 17-45 as members of the militia, although they have not been significant in modern times. 2nd Amendment issues have long become among the most important to libertarians.

CNN had a legal debate the next day, with Mr. Avery suggesting that the case will be reheard en banc by the DC Circuit, and that it was most likely that an en banc court would restore the law, to be consistent with 70 years of tradition that accepts the idea of the 2nd Amendment as partially associated with actual "militia" participation. The DC Circuit has reheard cases en banc before, as in 1994 when midshipman Joe Steffan's challenge to his ouster from the US Naval Academy for "admitting homosexuality" was reheard and the government "won." The ruling came down on a Friday, a bit unusual.

The case is called Shelly Parker v. D.C., and the Opinion is available at the Court's web site here.

The Washington Post story is by Bill Miller and Robert Barnes, "Appeals Court Guts D.C. Gun Ban," at this link.

Update: 3/21/2007

The DC Examiner has an editorial on p 18, "District gun ban ruling is a victory for common sense," on p. 18, March 21. The link is here. The piece points out Lawrence Silberman 's comment that the Second Amendment is bifurcated with a comma splice, the first portion ("well-regulated militia") simply establishes that the people need the ability to protect themselves and their property, and this explains why the government should not infringe on the right of individual people to protect themselves (with firearms when necessary). The editorial makes a comparison to the First Amendment, where conventional wisdom (and "judicial activism") of 70 years on the Second Amendment would, if applied to free speech, allow the government to set up "speech groups" first through which people could speak publicly (imagine that with the Internet!) The editorial even goes to apply this sort of reasoning to District of Columbia self-government (posting ahead, on Saturday March 17), claiming that "judicial activism" could assert that DC residents don't have the same individual rights as the citizens of the actual fifty states, so gun control could be imposed on the District's citizens anyway.

Update: 4/10/2007

The District of Columbia has appealed for an en banc rehearing by the full circuit. In the meantime, the law remains in effect.

Update: 4/19/2007

Of course, it's only fair to add that some commentators point out that the 2nd Amendment is the only one that spells out that a "right" needs to be "regulated" (a "well regulated militia" is part of the text). That could be taken as an argument for residential gun control.

In the aftermath of the Virginia Tech tragedy on 4/16, there has been debate about various state laws regarding history of mental illness when someone applies for a permit. In some states (like Virginia) an involuntary commitment would disqualify someone for a license whereas a voluntary commitment might not. Although I have no interest in buying a gun now and I do not live in the District (and I add that I might be very converned if I did live alone in the District), and I am not sure of DC laws on that, I would wonder if my "commitment" to National Institutes of Health for psychiatric consultation after my "expulsion" from college in 1961 (this is a long story, covered in other blog entries, books and websites) would disqualify me from the ability to defend myself if at some point I thought I needed it. Many people argue that they need to be able to defend themselves (and often their families)from intruders or other breaches because law enforcement cannot protect everyone. When I was in graduate school in the mid 1960s, some students even they claimed that they should have the right to defend themselves, even though Vietnam was going on and there was an anti-military mood as a whole.

Gay men in some cities carry mace in neighborhoods near bars (that is illegal in DC), and often express the sentiment that they want the legal right to defend themselves (with weapons if necessary) when on the street. Until establishments in SE Washington were closed for the baseball Washington Nationals' Stadium construction and related real estate development, there was often a lot of aggressive panhandling ("parked car protection" extortion) and other weapons and drug trafficking in the area, and sometimes patrons to the establishments claimed that they wanted to be able to defend themselves.

Update: 05/09/2007

The full circuit of the Appeals Court turned down the request for an en banc hearing today.

Monday, March 05, 2007

Higher taxes for universal health care, many in general public would support


On March 2, 2007 Robin Toner and Janet Elder authored a story "Most Support U.S. Guarantee of Health Care: Would Pay More Taxes in Return, Poll Finds" in The New York Times, p. 1. The story provided various tables broken down by Republican, Democrat and Republican on various questions related to how Americans would pay for a better guarantee of health care, with Democrats typically accepting the idea that Americans should pay higher taxes in order to guarantee universal care for everyone, or at least for children as starters. That could include higher taxes from people without children.

My own thinking has become sympathetic to pre-tax individual health savings account contributions over a lifetime, for routine care (including dental), and mandatory catastrophic coverage, possibly along the lines of Massachusetts or proposed California plans. But measures would have to be put into place that the same charges for procedures would apply to everyone. Individuals should not be penalized by hospitals and providers because they got their insurance on their own without group coverage. Individualizing health coverage removes it from vulnerability to political forces regarding a person's marital or social status or perceptions from others about the person's behavior (risk of HIV, smoking, etc).

Employer-provided health insurance is an anomaly that started during World War II. Today it introduces enormous distortions and it should be scrapped.

Saturday, March 03, 2007

Atlanta freeway bus accident: left lanes should not exit from freeways


The tragic bus accident in Atlanta yesterday accentuates a problem with many urban freeways: left-side exits and merges. They are always dangerous. The bus driver probably believed than an exit would have been from the right, but in congested areas that is not always true. Left exits and merges means a lot of sudden and dangerous lane changing when drivers are surprised, as well as confusion, as when the bus driver expected an HOV or bus lane. There are plenty of bad examples on the Washington beltway and along I-95.
Update:

CNN has given more details today; it seems as if the exit from the HOV lanes was unusual (to the left rather than to the right). Readers with more detailed knowledge of the highway engineering issues should comment.

The Family Bed


A couple years ago ABC "20-20" had a report about the "family bed" -- the practice of young children sleeping in the same bed as their parents. In the House & Home section, D, of The New York Times, on March 1, 2007, Penelope Green has a long detailed report "Whose Bed Is It Anyway?" Apparently there is a whole industry of consultation services that has grown up around the practice.

Here are some older links about ABC's story: "Lazy Husband" (2006); "attachment parenting" from "the complete mother" (2004).

Of course, from my perspective, "the family bed" represents the ultimate experience of socialization, that one is prepared to spend the most initimate part of one's life not only with an adult parner but with children. My own life has been exactly the opposite, with the privacy of some parts of my life, at least as I experience it, jealously guarded.

It's easy to imagine the moralistic debates that can pop up like mushrooms around this issue. Sharing one's essence this way is seen as the last step of maturity into adulthood, by some at least, a stage that I never achieved. (Military service is seen as a collective experience that narks a step into this maturation process, at least by some.) Remember the life cycle of the tunicate or sea squirt (actually a chordate): as a youth, it is active; then it settles down, attaches itself to the seabed and becomes sessile.

Thursday, March 01, 2007

Tribal thinking scares off witnesses from trials


David Kocieniewski has been running a series "Scared Silent: No Charges Filed" in The New York Times, with the March 1 2007 story "With Witnesses at Risk, Murder Suspects Go Free." He gives quite a bit of detail of failed prosecutions, especially in northern New Jersey (like Newark and Essex County) where gang members and sometimes rap artists encourage witnesses not to "snitch". In lower income cultures with a heavy emphasis on "loyalty to blood" it is easier for criminal elements to gain leverage against witnesses.

Of course, this kind of problem has always been well acted in the movies, whether "The Godfather" series or your Tommy Lee Jones thriller. There is a lot of lore about witness protection programs and people living in the shadows, with new identities, unable to feel pride in themselves as their own persons. In some cities, judges and families have sometimes faced retributions from organized crime, and this is well documented in the media.

This kind of problem is all the more striking in the Internet age, when suddenly people want their own public fame and will defame themselves (as on social networking sites) in order to be noticed as individuals. It's well to reflect on this, and maybe take in the recent German film "The Lives of Others" where the East German secret police spy on a writer trying to tell the world the truth.