Saturday, April 28, 2018

DeVos Education Dept. Begins Dismissing Civil Rights Cases in Name of Efficiency (NY Times)

As Justice Robert Jackson once said to his law clerk, "But what does it all mean?"

The changes worry civil rights groups, which point out that Education Secretary Betsy DeVos has already rescinded guidances meant to protect students against sexual assaults on campuses and black and transgender students against bias. CreditErin Schaff for The New York Times 
WASHINGTON — The Education Department’s Office for Civil Rights has begun dismissing hundreds of civil rights complaints under a new protocol that allows investigators to disregard cases that are part of serial filings or that they consider burdensome to the office.
Department officials said the new policy targeted advocates who flooded the office with thousands of complaints for similar violations, jamming its investigation pipeline with cases that could be resolved without exhausting staff and resources. But civil rights advocates worry that the office’s rejection of legitimate claims is the most obvious example to date of its diminishing role in enforcing civil rights laws in the nation’s schools.
Liz Hill, a spokeswoman for the Education Department, said the new provision was part of the office’s revision of its manual that lays out procedures for processing civil rights cases.
The goal of the new manual, which took effect last month, is to help the office better manage its docket, investigations and resolutions, she said.
Among the changes implemented immediately is a provision that allows the Office for Civil Rights to dismiss cases that reflect “a pattern of complaints previously filed with O.C.R. by an individual or a group against multiple recipients,” or complaints “filed for the first time against multiple recipients that” place “an unreasonable burden on O.C.R.’s resources.”
So far, the provision has resulted in the dismissal of more than 500 disability rights complaints.
Catherine E. Lhamon, who led the Office for Civil Rights under the Obama administration, said the new provision undermined the mission of the office. Unlike the Justice Department, the Education Department cannot pick and choose the cases it pursues. If the office has evidence that the law has been violated, it must open a case.
“The thing that scares me is when they get to say ‘we won’t open some cases because it’s too much for us,’ or ‘we don’t like the complainant,’ or ‘it’s not our week to work on that,’ you start to change the character of the office,” Ms. Lhamon said.
But Debora L. Osgood, a lawyer who worked for 25 years at the Office for Civil Rights and now consults with and represents schools on civil rights matters, praised the change.
She said the provision showed that the agency was “essentially taking the reins back for control of its complaint docket.”
Ms. Osgood said that in her experience, one person could clog the pipeline in each of the agency’s 12 regional offices, limiting investigators’ ability to respond to other complaints. It often frustrated investigators who prided themselves on being able to resolve complaints promptly, she said.
“In effect, it turned over the decision-making about how the agency would use many of its resources to a single individual, rather than to agency officials and staff charged with the responsibility for implementing the agency’s stated mission,” she said.
According to the Education Department, 41 percent of the 16,720 complaints filed in the 2016 fiscal year came from three people. The next year, of the 12,837 total cases, 23 percent of them did.
The department calls the complainants “frequent fliers.”
Marcie Lipsitt is proud to be one of them.
In the last two years, Ms. Lipsitt, a disability rights advocate in Michigan, has filed more than 2,400 complaints with the office against schools, departments of education, colleges and universities, libraries and other educational institutions across the country that have websites that people who are deaf or blind or who struggle with fine motor skills cannot navigate.
“No one even knew about this issue until I started filing,” Ms. Lipsitt said. “I didn’t want to get anybody in trouble. I just wanted to raise awareness.”
She has secured more than 1,000 agreements with institutions that committed to bringing their websites into compliance with the Rehabilitation Act of 1973, which prohibits discrimination against people with disabilities and requires that electronic and information technologies be accessible to them.
In recent weeks, Ms. Lipsitt said, she has received notice that more than 500 cases, including active and open investigations, were dismissed. Each letter cited the new provision as the reason. The department will instead work with colleges on complying with web accessibility laws.
“But I won’t stop,” Ms. Lipsitt vowed, “because if I do, the story goes away.”
The new manual also eliminates an appeals process for Office for Civil Rights decisions — department officials said it usually resulted in the same outcome — and says complaints can no longer be filed on the basis of journal articles and news media reports.
The manual also drops all mention of investigators’ looking into “systemic issues.” However, the department said that the new provision would not apply to class-action-like complaints filed by groups.
The changes worry civil rights groups, which point out that Education Secretary Betsy DeVos has already rescinded guidances meant to protect students against sexual assaults on campuses and black and transgender students against bias.
Neena Chaudhry, associate general counsel and senior adviser of education at the National Women’s Law Center, said that by filing dozens of complaints in recent decades, the group has been able to secure equal scholarship money and increased sports opportunities for female athletes. Now, as the organization shifts its focus to sexual assault, the department may prove less responsive.
Rachel M. Kleinman, senior counsel at the NAACP Legal Defense Fund, said that the new manual was “yet another avenue for O.C.R. to not seriously investigate systemic race discrimination.”
The group has filed complaints on behalf of large groups of black students it believes were being disproportionately affected by law enforcement policies. Already, one case has been closed by the DeVos administration, and the department declined to conduct a broader analysis.
“They seem to be closing all of the pathways for students to have their rights enforced by the federal government,” Ms. Kleinman said.
Ms. DeVos’s Office for Civil Rights has maintained that it wants to be more efficient and effective than it was under the Obama administration, which was known for its aggressive enforcement and broad investigations but was also accused of being overzealous and leaving cases languishing for years.
Ms. Osgood said such changes would be welcomed by the colleges and universities that she assists with federal civil rights investigations.
She said the changes showed that the department was willing to work with schools in a “more reasonable, more nimble and more expeditious manner.”
The department did not say how its investigators would determine that a case would place an “unreasonable burden” on its resources. However, just weeks after the new manual took effect, Congress allocated $8.5 million more in funding to the Office for Civil Rights, which Ms. DeVos had sought to cut, in order for the office to manage its caseload.
Ms. Lhamon said that, in her time in the office, she sought out ways to manage large volumes of cases that stemmed from one complainant, and she acknowledged that her office struggled with timely responses. But she said she could not come up with any measure that would not shortchange an investigation.
“There’s not a limitation on justice, and there’s not a limitation on how we perceive injustice,” Ms. Lhamon said. “To say you’ve reached your quota is to say that there’s somehow a cap on the number of children who might be harmed.”

Department of Granting Variances? City Lacks Respect for Independent Administrative-Judicial hearings

Clean Up City of St. Augustine, Florida: DONALD A ...

In the midst of devious developers' demolition derby, after the demolitions of Don Pedro Fornells House, Echo House and Carpenter's House,

after the outsize influence shown by rubber-stamp approval of outrageous, oversize hotels and other abominations,

here's the City of St. Augustine's stunning admission of its custom, practice and procedure of pro-developer favoritism:

"The role of the PZB is to grant zoning exceptions and variances as provided in the zoning code ordinances, hear appeals of any decision of the Planning and Building Department and recommend to the City Commission the rezoning of land or changes to the Comprehensive Plan."   (St. Augustine City website). 

These are truly "UnAmerican Activities."  Enough.

Note to citizens:

Purpose is to "grant."  This suggests rubber-stamping, not bona fide quasi-judicial hearings.

Ipse dixit.  They can't fix it.   City Hall staff must stop trying to boss and bully our boards, who serve as the conscience of our community. 

See and compare the Role of Planning and Zoning Board: Florida Planning Officials Handbook (2015):
Florida Resilient Communities Initiative University of Florida
October 2015
Florida Planning Officials Handbook

pp. I-22
Planning Officials Are Elected or Ap- pointed Citizens Involved in the Plan- ning Process
The term "Planning Officials" was created by the American Planning Association to include a wide range of citizen participants in planning who have specific roles. City and County Commissioners are elected officials who serve on the governing bodies of local government. In Florida, these elected offi- cials play a significant role in planning and growth management. They are the final authority for the adoption of a communitys comprehensive plan, the enactment of its land development regulations and the approval of major development applica- tions. City and County Commissions also typically appoint the officials who serve on the planning commissions and other boards of their community.
Planning Commissioners are appointed to serve on local planning commissions. Planning commission- ers are the keepers of the Comprehensive Plan. They initiate and guide long-range planning ef- forts, conduct public meetings and hearings on proposed plans and projects, review development proposals for conformance with local plans and de- velopment regulations, and develop new planning programs.
Zoning Board members are appointed to serve on boards that review development applications. Zon- ing boards normally make recommendations to the local governing body regarding rezonings and oth- er development approvals but may serve as the final approval authority for some actions pre- scribed by the local regulations. Planning commis- sions may serve as a zoning board to perform this function in many communities.
Board of Adjustment members are appointed, vol- unteer officials who serve on a board that hears appeals or requests for variances and conditional use approvals, all zoning and land use matters. The work of the board is generally limited to re- view of applications for conditional use permits, variances, and other appeals. In some communi- ties, the functions of a planning board and a zon- ing board of appeals are performed by a joint plan- ning and zoning commission.
The Work of the Planning Commission
The Planning Commission's goal is to make the comprehensive plan work. The Planning Commis- sions first responsibility is to recommend a com- prehensive plan that reflects the vision and values of the community. The planning commission is a lay body that in many ways speaks for the com- munity. These volunteer citizens give their time, energy, and intelligence to evaluating their com- munity and its future, and advise the elected offi- cials about future directions.
The Planning Commissions second goal is to move the plan from vision to reality. To do this, the planning commission must examine each issue and every application and ask the question, "Does this proposal further the goals and objectives of the comprehensive plan?” If so, the proposal conforms to the public interest as expressed in the plan and should normally be approved. If not, the proposal runs contrary to the public interest as expressed in the plan and should normally be rejected. All of this seems straightforward enough, but in practice things are much more complex. The comprehen- sive plan, for example, while offering guidance and showing direction, will not often provide automatic answers.
In addition to ensuring that the decisions of the planning commission conform to the comprehen- sive plan, it is also the duty of planning commis- sion members to ensure that the plan is kept up to date. As technology changes, for example, what is practical or possible in the plan will also change. Further, as a community evolves, so too will the goals and objectives of its citizenry. New ideas will be introduced. Existing land uses will change. It may become evident that aspects of the plan are no longer relevant. For all of these reasons and more, a key task of the planning commission is to make certain that the plan is current and, if not, that the plan be updated and amended.
Evaluating and amending the plan should be a reg- ular part of the planning commission's annual agenda. At least once per year, the commission should schedule time to review the existing plan and then develop any changes as required. This
will ensure that the plan remains an accurate re- flection of community values and will also serve to reinforce the importance of the plan to the mem- bers of the planning commission itself.
The Work of the Zoning Board
The Zoning Board” reviews development applica- tions and makes recommendations to the local governing authority. The zoning board” reviews development applications for consistency with the comprehensive plan, compliance with the land de- velopment regulations of the community and ad- herence to accepted planning practices and princi- ples. The development review process normally involves an analysis and recommendation by an appointed body before a final decision is made by the local governing body. The procedures that guide this review are prescribed by the communi- tys land development code and typically involve rezonings, subdivision review, site plan review and other processes.
A community may not have a zoning board” but the review function described above does exist by one name or another within the planning structure. Often a planning commission will perform this role. In other communities, a hearing officer may be used. Regardless of where the responsibility is as- signed, it is an essential function and one that typ- ically involves the planning officials’ most active and direct involvement in community issues.
The Work of the Board of Adjustment
Communities have boards of appeal” or boards of zoning adjustment”. For convenience, the term board of adjustment” is used. The moment a land development code is adopted, the work of the board of adjustment begins. As the name implies, the focus of the boards work is zoning code relat- ed appeals, but just as with the planning commis- sion and zoning board, a second goal of the board of adjustment is to implement the comprehensive plan, or to at least assure that its decisions don't violate the comprehensive plan.
The board of adjustment” is charged with a com- plex set of duties that typically include:
  •   Deciding on variances to the land development code;
  •   Reviewing appeals to decisions of the code ad- ministrator;
  •   Interpreting the meaning and the intent of the land development code; and often
  •   Evaluating special exceptions or conditional us- es.

Gorsuch strikes a blow for constitutional equilibrium. (George F. Will, WaPo)

I agree with Justice Neil M. Gorsuch and the Supreme Court majority.  And I never liked "Chevron deference" to federal agencies' often-wrong interpretation of ambiguous laws.  Too much of Administrative Law is "Bad Law," as we called it in Memphis.

Gorsuch strikes a blow for constitutional equilibrium

Supreme Court Justice Neil M. Gorsuch in Washington in September 2017. (Pablo Martinez Monsivais/AP)

 Opinion writer  

Last week, one week after the first anniversary of Justice Neil M. Gorsuch’s ascension to the Supreme Court, he delivered an opinion that was excellent as it pertained to the case at issue, and momentous in its implications pertaining to the institutional tangle known as the administrative state. If he can persuade his fellow court conservatives to see why they were mistaken in disagreeing with him, and if he can persuade his liberal colleagues to follow the logic of their decision with which he concurred, the judiciary will begin restoring constitutional equilibrium. It will limit Congress’s imprecise legislating that requires excessive unguided improvising by all those involved in seeing that the laws are “faithfully” executed.
In 1992, when James Dimaya, a Philippine citizen, was 13, he became a lawful permanent resident of the United States, where, unfortunately, his behavior has been less than lawful: In 2007 and 2009, he was convicted of residential burglary. The Department of Homeland Security says he should be deported because he committed a “crime of violence,” hence covered by a portion of immigration law that, after listing specific crimes (rape, murder, etc.), adds a catchall category of crimes involving “a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” How are judges supposed to apply this?
Writing for the majority in a 5-to-4 decision — and joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor (with Gorsuch concurring in the judgment and much of the opinion) — Justice Elena Kagan wrote that the law’s category, a “crime of violence,” is so indeterminate (“fuzzy,” she said) that deporting Dimaya under it would violate the Constitution’s “due process of law” guarantee. Vague laws beget two evils that are related: They do not give citizens reasonably clear notice of what behavior is proscribed or prescribed. And they give — actually, require of — judges and law-enforcement officials excessive discretion in improvising a fuzzy law’s meaning. In agreeing with this (and disagreeing with Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.), Gorsuch wrote:
Vague laws “invite the exercise of arbitrary power” by “leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” The lack of “precise and sufficient certainty” (criteria stipulated by the English jurist William Blackstone, whose writings influenced the Constitution’s framers) invites “more unpredictability and arbitrariness” than is constitutional. Furthermore, the crux of America’s constitutional architecture, the separation of powers, is implicated. All legislative power is vested in Congress. The judicial power, Gorsuch wrote, “does not license judges to craft new laws” but only to discern and follow an existing law’s prescribed course. With the fuzzy “crime of violence” category, Congress abdicated its “responsibilities for setting the standards of the criminal law.” So, allowing vague laws would allow Congress “to hand off the job of lawmaking.” Hence such laws not only illegitimately transfer power to police and prosecutors, but also would “leave it all to a judicial hunch.”
The principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through many practices of the administrative state, which translates often vague congressional sentiments into binding rules — a practice indistinguishable from legislating. Gorsuch’s principle is also pertinent to something pernicious concerning which he has hitherto expressed wholesome skepticism: “Chevron deference.” 
This is the policy (named for the 1984 case in which the Supreme Court propounded it) whereby courts are required to defer to administrative agencies’ interpretations of “ambiguous” laws when the interpretations are “reasonable.” Gorsuch has criticized this emancipation of the administrative state from judicial supervision as “a judge-made doctrine for the abdication of judicial duty.” It also is an incentive for slovenly lawmaking by a Congress either too lazy or risk-averse to be precise in making policy choices, and so lacking in institutional pride that it complacently sloughs off its Article I powers onto Article II entities. Gorsuch wants Article III courts to circumscribe this disreputable behavior. 
Gorsuch represents the growing ascendancy of one kind of conservative jurisprudence, “judicial engagement,” over another kind, “judicial deference.” Many conservatives have embraced populism where it least belongs, in judicial reasoning. They have advocated broad judicial deference to decisions because they emanate from majoritarian institutions and processes. Progressives favor such deference because it liberates executive power from congressional direction or judicial supervision. Gorsuch, a thinking person’s conservative, declines to be complicit in this, which raises this question: When has a progressive justice provided the fifth vote joining four conservative colleagues?

Gov. Scott Suspends Boca Ratón Mayor Susan Haynie (Sunshine State News)

Good work by Palm Beach County State's Attorney Dave Aronberg.

Wish we had a competent State's Attorney here in the Seventh Judicial District, covering four counties, including corrupt St. Johns County.

Gov. Scott Suspends Boca Raton Mayor Susan Haynie

April 27, 2018 - 7:00pm
Susan Haynie       Photo: The Palm Beach Post
Susan Haynie Photo: The Palm Beach Post 
Gov. Rick Scott wasted no time Friday suspending Boca Raton Mayor Susan Haynie, who faces criminal charges of official misconduct and corrupt misuse of her office.
Haynie, 62, turned herself in at the local jail Tuesday. She is charged with four felonies -- three counts of felony official misconduct and one count of perjury. She also is charged with three misdemeanors -- official misuse of office, corrupt misuse of official position and failure to disclose voting conflicts.
Said Scott's executive order, "It is in the best interests of the residents of the City of Boca Raton, and the citizens of the State of Florida, that Susan Ince Haynie be immediately suspended from the public office, which she now holds ...” See the governor's executive order here.
Less than half an hour later, Haynie's deputy Scott Singer was installed as mayor, as specified in the city charter.
The State Attorney’s Office began its investigation in March 2017 into complaints that Haynie voted on issues that could financially benefit developer James Batmasian while failing to disclose income she had received from him and his companies through a business Haynie owned with her husband.
Bank records subpoenaed by the State Attorney’s Office reveal $335,000 in earnings Haynie never reported on financial disclosure forms required by law. The arrest report cites these accounts over the last four years as belonging to Haynie and her husband, Neil:
  • $56,000 from a property management contract with a Batmasian-controlled company;
  • $84,000 directly from Batmasian or one of his business entities;
  • $85,900 to her property management firm from unreported clients;
  • $45,000 from an unreported property she owns and rents out in Key Largo;
  • $58,000 from a software engineering firm.
Haynie's attorney, Leonard Feurer, claims Haynie is innocent and will be vindicated. Haynie herself declined to comment to the media Tuesday after she was freed on bond.
The suspended mayor is scheduled for an arraignment hearing on May 24 in Palm Beach County Circuit Court. She likely will announce formally then whether she plans to fight the charges.
Haynie’s arrest came as a shock to staff and other council members, who were in the middle of a City Council meeting when she turned herself in. City Manager Leif Ahnell said she had called in sick that day.
Pressure has been mounting since Tuesday for Haynie to resign, not just through newspaper editorials, but in City Council-member interviews.
“I believe the mayor should resign,” Council Member Monica Mayotte told the Sun Sentinel on Thursday, “The new charges illustrate years of reckless behavior. I believe she has demonstrated poor judgment in how she has handled herself over several years. She has completely betrayed the public’s trust.”
Haynie has been a fixture in Boca Raton politics, elected to office seven times in the past 17 years. Though she hasn't officially resigned as mayor, she has withdrawn her bid for Palm Beach County Commission.
Reach Nancy Smith at or at 228-282-2423. Twitter: @NancyLBSmith

The poor don’t have a prayer in today’s Washington (WaPo)

Dana Milbank nails it. Speaker of the House of Representatives Paul Ryan fired the House Chaplain, a Jesuit priest, Fr. Patrick Conroy, S.J. for praying for poor people -- retaliation against First Amendment protected activity.

The poor don’t have a prayer in today’s Washington

The Rev. Patrick Conroy, chaplain of the House of Representatives. (J. Scott Applewhite/AP)
Praying for the poor is now apparently a firing offense in the corridors of power. 
House Speaker Paul D. Ryan (R-Wis.) did not give a reason when his chief of staff this month told the Rev. Patrick Conroy, a Jesuit priest and House chaplain, to resign or face dismissal. 
But we know this much: Ryan’s office complained to Conroy about a prayer he offered on the House floor during the tax overhaul debate that those who “continue to struggle” in the United States would not be made “losers under new tax laws.” Ryan admonished the priest after the Nov. 6 prayer, saying, “Padre, you just got to stay out of politics,” Conroy told the New York Times. 
He was warned. He was given an explanation. Nevertheless, he persisted. 
Over the five months since Ryan’s warning, Conroy dared to continue to preach the teachings of Jesus on the House floor:
House chaplain Patrick J. Conroy offers prayer
He prayed to God that lawmakers would help “the least among us.” 
He prayed for them to follow the example of St. Nicholas, “who fed the hungry, brought hope to the imprisoned, gave comfort to the lost.” 
He admonished lawmakers “to serve other people in their need” and “to pray for the unemployed and those who work but still struggle to make ends meet.” 
After an immigration deal collapsed, he urged “those who possess power here in Washington be mindful of those whom they represent who possess little or no power.”
He prayed for lawmakers to be “free of all prejudice” and, after the Parkland, Fla., school shooting, to “fulfill the hopes of those who long for peace and security for their children.”  
But such “political” sentiments are apparently no longer compatible with service as House chaplain. “As you have requested, I hereby offer my resignation,” Conroy, named chaplain seven years ago by then-Speaker John A. Boehner (R-Ohio), wrote to Ryan on April 16. The ouster became public Thursday.
Only in this perverted time could a priest lose his job after committing the sin of crying out for justice for the poor. But then, look around: Everywhere are the signs of a rising kleptocracy. The $1.5 trillion tax cut did make winners of corporations and the wealthy. And actions since then show that the Trump administration is making losers of the poor.
In a speech to bankers this week, Trump budget director Mick Mulvaney spoke of the “hierarchy” he followed when he was in Congress: “If you were a lobbyist who never gave us money, I didn’t talk to you. If you were a lobbyist who gave us money, I might talk to you.”
Also this week, EPA Administrator Scott Pruitt was on Capitol Hill, defiant as lawmakers grilled him about his lavish expense account (at a time when Trump wants to cut the EPA budget by 25 percent) and coziness with corporate lobbyists — most notably renting a condo at a sweetheart rate from the wife of an energy lobbyist. “I simply have not failed to take responsibility,” Pruitt said after blaming bureaucrats and others. “I’ve simply recited the facts.”
Meanwhile, Ben Carson, secretary of housing and urban development, this week proposed to triple the rent charged to the poorest families living in subsidized housing. “It’s clear from a budget perspective and a human point of view that the current system is unsustainable,” Carson explained. It’s hard to sustain help for the poor when you’re proposing to cut HUD spending by 14 percent next year — and when you’ve borrowed $1.5 trillion to give tax breaks mostly for the wealthy. 
Conroy, of course, didn’t preach about such truly political things; he prayed, generically, for compassion. In the prayer that earned him Ryan’s reprimand, he merely reminded lawmakers that “the institutions and structures of our great nation guarantee the opportunities that have allowed some to achieve great success, while others continue to struggle.” He prayed that lawmakers “guarantee that there are not winners and losers under new tax laws, but benefits balanced and shared by all Americans.” 
Such heresies continued. He prayed for “peace and reconciliation where those virtues are so sorely needed.” He prayed for them to rise above “self-interest” and “immediate political wins.” He prayed for them to promote “justice, equity and truth.” He admonished them to “show respect for those with whom they disagree.”
On Friday morning, in the well for one of his last remaining prayers, Conroy prayed “for all people who have special needs” and “those who are sick” and for those “who serve in this House to be their best selves.”
Best selves? Respect? Reconciliation? No can do. Later Friday, Rep. Joseph Crowley (N.Y.), a Democratic leader, rose to request an investigation into Ryan’s dismissal of Conroy. Republicans moved to quash the proposal — and, to nobody’s surprise, they prevailed. 
If you preach about the poor in today’s Washington, you don’t have a prayer.