by Hans Bader
A judge recently found that the City of Richmond racially profiles black motorists, dismissing the indictment of a black convicted felon accused of illegally possessing a gun. The judge did not find that defendant Keith Moore had been treated differently than a similarly situated white motorist. Instead, he ruled that Richmond police stops are racially discriminatory, based on statistics showing blacks are stopped and arrested at much higher rates than whites; and based on Richmond’s past “history of discrimination,” such as racialized zoning and redlining, and the “Confederate foundations” of the Richmond Police Department. “The Court will not require Moore to provide evidence of similarly situated individuals to prove his selective enforcement claim,” wrote the judge.
This is likely to create big problems for the City of Richmond, potentially leading to many criminals being released from jail. If a judge claims racial discrimination happened, he should identify what policies are racially discriminatory, or give concrete examples of discrimination, so that the problem can be fixed. But Judge Gibney failed to do that in his February 12 ruling in United States v. Keith Rodney Moore. So now the City is deemed guilty of discrimination, based on things no individual police officer can change (such as city-wide statistics), and things that literally no one can change (such as the confederate origins of the police department and Richmond’s segregated past). If other judges follow this flawed ruling, other criminals can also have their indictments dismissed based on city-wide statistics, even if it is undisputed that they committed the crime for which they were arrested.
Although the judge cited statistical disparities, he did not cite any specific police practices that led to blacks being stopped at higher rates, as he should have done if police were actually at fault. In Smith v. City of Jackson (2005), the Supreme Court ruled that even unintentional discrimination (disparate-impact) cannot be proved through statistics unless “specific” practices are identified that caused the “statistical disparities.” The disparities themselves are not enough. Continue reading
by Hans Bader
Recent Virginia legislation raises interesting constitutional issues under the Fourteenth Amendment’s equal protection clause. Virginia legislators have introduced bills that would make corporate board diversity a factor in whether to give corporations tax incentives for economic development. In deciding whether to approve tax incentives to a company, the MEI Project Approval Commission would have to consider whether “at least 30 percent of [its] board of directors consists of women and historically underrepresented groups.” The requirement is contained in House bill HB 212 and Senate bill SB 393.
The legislation doesn’t strictly require a quota, but there are instances in which courts have struck down state laws that merely encouraged the consideration of race and gender, without requiring quotas. One example is when a federal appeals court struck down a California law that required general contractors to either subcontract percentages of the work to minority, women, and disabled veteran-owned subcontractors, or demonstrate good faith efforts to do so. The required “goals” were not particularly onerous — “not less than” 15% for minority business enterprises, 5% women, 3% disabled veteran. And companies merely had to try to meet them (not succeed).
But the Ninth Circuit Court of Appeals struck down the law, because even though “the statute does not require set-asides” based on race or gender, “it encourages them.” (See Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), striking down California Public Contract Code § 10115(c)).
So, the fact that the Virginia legislation does not impose a rigid quota for women and historically underrepresented groups does not insulate it from a constitutional challenge. A desire to help historically underrepresented groups doesn’t give government officials broad leeway to promote race or gender in selection, even as one of many factors, as the Supreme Court illustrated last year in striking down admissions policies at the University of North Carolina and Harvard University that were designed to promote racial diversity, and open doors to historically underrepresented groups like African-Americans. (See Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023)).
by Hans Bader
Virginia’s revenge-porn law may soon be expanded to punish people for posting embarrassing, revealing images of public figures, such as politicians, if Virginia’s legislature approves HB 926. Doing so would violate the First Amendment, and invite lawsuits by civil-liberties groups like the Foundation for Individual Rights and Expression or the Institute for Justice.
In 2023, the media and blogs covered the fact that a Democratic legislative candidate performed live sex acts on the pornographic web site Chaturbate. That information was leaked to the media, including The Washington Post. Blogs posted images of the candidate showing that she was undressed, but not showing her private parts or anything pornographic. The candidate, Susanna Gibson, lost a close race for the Virginia House of Delegates, but not before arguing that the leak of her porn to the general public was a “sex crime” for which people should be prosecuted under Virginia’s revenge porn statute. “Daniel P. Watkins, a lawyer for Gibson, said disseminating the videos constitutes a violation of the state’s revenge porn law, which makes it a Class 1 misdemeanor to ‘maliciously’ distribute nude or sexual images of another person with ‘intent to coerce, harass, or intimidate.’” But no prosecution was ever brought, perhaps because doing so would violate the First Amendment, and because it might be hard to prove the leak was done with the “intent to coerce, harass, or intimidate,” as opposed to educating voters about a candidate’s past.
Now, Delegate Irene Shin (D-Herndon) wants to rewrite the revenge porn statute so broadly that prosecutors will be able to prosecute not just the leaker, but also bloggers or journalists who posted publicly available images of Gibson showing that she was in a state of undress during her performances at Chaturbate. Continue reading
by Hans Bader
Should students be defined as bullies partly based on race? A confusingly-worded bill just introduced in Virginia’s legislature seemingly classifies students as bullies partly based on racial differences between “the aggressor” and the victim, such as a “real or perceived power imbalance between the aggressor or aggressors and victim, including on the basis of the actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion, or other distinguishing characteristics of the victim.”
That language is found in HB 536, a bill introduced by Delegate Joshua Cole (D-Fredericksburg). It would add the language in italics to Virginia Code § 22.1-276.01, so that it reads:
“Bullying” means any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim; involves a real or perceived power imbalance between the aggressor or aggressors and victim, including on the basis of the actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion, or other distinguishing characteristics of the victim; and is repeated over time or causes severe emotional trauma.
If Virginia adopted such legislation, it would create legal risks for school systems. If schools enforce a race-conscious definition of bullying, which applies (or not) based on the “race…of the victim,” that could be deemed by the courts to violate the rights of students defined as bullies based on racial considerations. School systems could end up being sued under the Constitution’s equal protection clause, Title VI of the Civil Rights Act, and 42 U.S.C. 1981. Even rules designed to help historically-disadvantaged groups are subject to legal challenge when they classify students based on race or gender, as the Supreme Court made clear last year in striking down the race-conscious admissions policies of Harvard University and the University of North Carolina. Continue reading
by Hans Bader
A just-introduced Virginia bill, HB 192, would limit rent increases to “one percent over the Consumer Price Index” in places where the rental vacancy rate is “less than 10 percent,” if the “Consumer Price Index … is greater than five percent.” Virginia has a rental vacancy rate of about 4%, well below 10%, so effectively, this would be a statewide rent control law.
The bill does not allow larger rent increases even to pay for things like major capital improvements.
The bill, introduced by Democratic Del. Marty Martinez, is called the “Landlord and Tenant Fairness Act.” It contains this rent-control provision:
C. If the rental vacancy rate for a locality is less than 10 percent during the previous calendar year and the Consumer Price Index as reported by the Bureau of Labor Statistics of the U.S. Department of Labor is greater than five percent, any rent increase imposed by a landlord shall be no greater than one percent over the Consumer Price Index.
Even if this bill were to pass the legislature, it is likely that Republican Governor Glenn Youngkin would veto it, given the absence of Republican support for rent control.
Still, no teachers union likes its members to be paid below average, even when they live in areas where the cost of living is below the national average, like Richmond, Amherst, Lynchburg, Roanoke, Harrisonburg, Staunton, or Waynesboro.
Nadarius Clark, a Democratic Virginia delegate, has introduced House Bill 187, which would require Virginia teachers to be paid at or above the national average for teachers. The bill “requires that public school teachers be compensated at a rate that is at or above the national average teacher salary…. ” The bill also requires that public school instructional and non-instructional support staff be compensated at a rate that is “at or above the national average salary for such staff.”
It is a bad idea for states to pass such laws. If every state passed such a law, teacher pay would be higher than for any other profession, and increase toward infinity, because states would be constantly increasing their teachers’ pay relative to other states so as not to be below the national average, and yet, many states would never reach the national average, due to other states increasing teacher pay first. (By definition, half of all states are going to be below average.) Continue reading
Human fetus attached to a placenta. Source: Wikipedia
by Hans Bader
Virginia may permanently legalize abortion in all nine months of pregnancy by banning any regulation of abortion unless necessary to meet a compelling interest, and — more importantly — defining “compelling interest” to exclude the life of the fetus even after viability.
That is what is mandated by a state constitutional amendment that has just been proposed by the Democratic Majority Leader in Virginia’s House of Delegates, House Joint Resolution No. 1
Its text defines compelling interest to include only the health of the mother, not the life of a viable fetus, by stating that a “state interest is compelling only when it is to ensure the protection of the health of an individual seeking care.” Fetuses are not “seeking care,” only their mother is.
By contrast, even when the U.S. Supreme Court upheld abortion rights, it recognized that the state had a compelling interest in protecting a viable fetus, from being aborted in the third trimester of pregnancy. As a result, current Virginia law only allows an abortion in the third trimester to protect the health or life of the mother, when “the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman.” Continue reading
from Liberty Unyielding
For generations, Washington State had no state income tax, because of anti-income tax provisions in its state constitution. But the Washington state supreme court recently upheld a classic example of an income tax — a state tax on income from capital gains — by making the absurd argument that a capital gains tax is an “excise tax,” not an income tax. That was nonsense. The IRS and all other states deem capital-gains taxes to be income taxes, because they are levied on the amount of income you make from selling an asset, such as shares of stock or the sale of your home. The state supreme court could not deny this, and seems to have been motivated by racial, rather than legal, considerations, in reaching its ruling. It claimed that Washington’s traditional tax system “perpetuates systemic racism by placing a disproportionate tax burden on BIPOC residents,” who pay a higher fraction of sales taxes than of income or capital gains taxes.
As broadcaster Jason Rantz notes, the state supreme court’s opinion “doesn’t read like a Court decision, but a press release from a pro-tax, anti-capitalist Seattle activist group. But that’s what the Washington State Supreme Court has become.” The state supreme court’s 7-to-2 ruling is in tension with the fact that, as the tax consulting firm RSM notes, “the IRS defines capital gains as income and the Washington capital gains tax relies on federal income tax reporting.”
If other state supreme courts similarly redefine income taxes as excise taxes, that could weaken tax limits contained in other states’ laws, such as Virginia law’s ban on income taxes levied by cities and counties. This Tuesday, Virginia is holding legislative elections. Virginia’s legislature picks the state’s judges, and Democrats are slightly favored to take control of the state legislature. When they last controlled the Virginia legislature, the Democrats expanded and packed the Virginia Court of Appeals. But the Virginia supreme court currently is split 4-to-3 in favor of Republicans. Residents of northern Virginia pay 3.2% less of their income in taxes than residents of neighboring counties in Maryland, because Maryland permits county income taxes, and Virginia doesn’t.
If Democrats win the Virginia elections Tuesday, they could pick judges who uphold taxes at odds with the state constitution. Continue reading
by Hans Bader
Electric vehicles require enormous damage to the environment just to produce their batteries — 250 tons of mining is required for a single battery, according to Real Clear Energy. Switching to electric cars would require a radical expansion of mining across the world, and the minerals for the car batteries will be refined mainly using the coal-powered electric grid of China, the world’s biggest emitter of greenhouse gases.
Yet states are starting to mandate electric vehicles. Nine states, including California, have now decided to ban gasoline-powered cars by 2035, requiring that all cars sold be electric instead. In 2021, Virginia’s Democratic-controlled legislature passed a law adopting California standards for Virginia vehicles, so Virginia also will ban gasoline-powered cars in 2035, unless that law is repealed, as Republicans seek to do (the Republican-controlled Virginia House of Delegates voted to repeal the ban on gas-powered cars in 2023, but the Democratic-controlled Virginia state Senate kept the ban in place). Continue reading
from Liberty Unyielding
The debate over school choice has tended to focus on whether students learn more as a result. But learning improvements from school choice are probably smaller than improvements in other dimensions, such as civic participation, law abidingness, and family stability later in life. Jason Bedrick of The Heritage Foundation notes that “School-choice policies even appear to foster law-abidingness and self-governance. A study by @P_Diddy Wolf & @Corey_DeAngelis found that students participating in Milwaukee’s school choice program saw significant reductions in criminal convictions & paternity suits.” Perhaps private schools have the ability to instill values in ways that the public schools do not.
“When it comes to civic knowledge and skills, 10 studies find a private-school advantage, six find no difference, and none find a government-school advantage,” Bedrick points out. “Some claim government schools are where people of all different backgrounds learn to live and work together. Yet, in the research on political tolerance—a virtue our nation needs direly today—show a 13-1 advantage for school choice over government schooling.”
In the public schools, “Teaching students a historically accurate understanding of our nation’s founding and the role of government is not a priority. Instead, instructional content too often centers on social justice, ethnic studies, and Marxist-inspired Critical Race Theory,” Bedrick says.
Since private schools spend less per student on average than the public schools, school choice also has the potential to save taxpayers a lot of money over the long run. Continue reading
Susanna Gibson, Democratic nominee for the 57th District seat in the Virginia House of Delegates.
Republished with permission from the Liberty Unyielding blog.
“Susanna Gibson, a House candidate in Virginia, had sex with her husband in live videos posted online and asked viewers to pay them money in return,” notes USA Today. A recent video shows the Democratic candidate for Virginia’s House of Delegates doing sex acts. She allegedly also had sex with other people, not just her husband. Continue reading
by Hans Bader
The communist activist Angela Davis advocated abolishing prisons in the U.S., while supporting the incarceration of political prisoners in totalitarian communist regimes overseas. The ACLU of Virginia has touted Angela Davis’s stances in the past, such as in an April 4, 2022 tweet quoting Davis.
Now, the ACLU of Virginia has returned to promoting these extreme positions, in addition to new ones. In an August 7 post, the ACLU approvingly featured an image with the message “Abolish Prisons,” “Abolish White Supremacy,” and “No One Is Illegal On Stolen Land,” accompanied by a tweet agreeing with this sign, and saying “That’s right, NO ONE.”
We do not all live on stolen land, contrary to the claim made by some left-wingers. A great deal of land was voluntarily sold to settlers by Native Americans. Law professor Stuart Banner’s book How the Indians Lost Their Land explains this. Some land changed hands through “consensual transactions,” and other land through “violent conquest.”
Banner is a mainstream, well-respected academic at UCLA Law School who may have been surprised by what he discovered about the large scope of voluntary transfers of land from Native Americans to whites. But the large number of land sales by Native Americans makes sense because North America was a much emptier place after European diseases wiped out most of the Native American population, leaving many Native Americans with plenty of land even if they ceded some of it to white settlers.
The ACLU’s apparent call to “abolish prisons” is also misguided, because peer-reviewed academic studies show prisons prevent many violent crimes and property crimes. One such study is “The Incapacitation Effect of Incarceration: Evidence from Several Italian Collective Pardons,” which found that reducing incarceration increased the crime rate. This article was published in the American Economic Review, which is a peer-reviewed journal. Continue reading
by Hans Bader
Many colleges and progressives are claiming that Juneteenth — June 19, 1865 — was “the day slavery ended” in the U.S. But slavery actually remained legal in Kentucky and Delaware until December 6, 1865, the day the Thirteenth Amendment’s ban on slavery went into effect.
Yale University has a web site titled, “Juneteenth: Remembering the day slavery ended in the U.S.” Similarly, Bill Nye, the self-proclaimed “science guy,” claimed that “the last” slaves “were not freed (officially) until June 19, 1865.”
These claims are not true. As the London Daily Mail notes, the last slaves were not legally freed until six months later, when “the 13th Amendment fully prohibited the owning of slaves, spurring states such as Kentucky and Delaware – where it had still been legal – to cease the practice.” Abraham Lincoln’s Emancipation Proclamation only declared slaves free if they were held in areas that had been controlled by Confederate rebels, not in slave states that remained loyal to the union, such as Delaware and Kentucky.
by Hans Bader
The Virginia Senate has voted 24 to 15 to approve SB 842, the so-called “second look” bill. If it becomes law, inmates who have been in prison for 15 years or more could ask to be released, or ask for a reduction in their sentences. Originally, the bill applied to inmates of all types, but it was amended in the Senate Finance Committee to exclude first-degree murderers. Inmates released under second look legislation tend to be murderers (such as second-degree and first-degree murderers), although Oregon’s second look law excludes a few “aggravated” murders.
In 2022, the Democratic-controlled Virginia Senate passed an earlier version of the second look bill by a 25 to 15 vote, but it then died in a subcommittee of the Republican-controlled House of Delegates. That earlier bill was broader than this year’s bill in one way (it did not exclude even first-degree murderers such as serial killers) but narrower in another respect (it required inmates to meet specified “behavioral standards” in prison be released, which is not true of SB 842).
This bill faces an uncertain future in the House of Delegates. On the one hand, the bill is supported by many well-funded progressive interest groups with multi-million-dollar budgets, such as the ACLU, and supporters of the bill have massively out-lobbied opponents of the bill. On the other hand, it is opposed by the Virginia Association of Commonwealth’s Attorneys, which most House Republicans pay attention to. And most Republicans already oppose the bill. Continue reading
by Hans Bader
Do all inmates deserve a chance for release? Even a serial killer, or a serial rapist who has been locked up and released before?
They may soon have that chance in Virginia. In the state Senate, the Judiciary Committee has just approved the Second Look bill, SB 842. It would allow offenders of all kinds to file petitions for release or modification of their sentences after they’ve served 15 years. Judges wouldn’t have to grant the petitions, but they could if they think an inmate has mended his ways.
Under the bill, an inmate could be released despite any “combination of any convictions” such as being convicted of both murders and rapes. The bill was approved in an 8-to-6 vote largely along party lines, over conservative opposition.
Supporters of the bill argue that “everyone deserves a second chance.” But to critics, the bill goes beyond giving offenders a second chance, because it gives even the most persistent re-offenders the opportunity to seek release — people who already had and squandered a “second chance.” As an objector noted, “most inmates doing more than 15 years have already had their second, third, fourth, and fifth chances — the typical released state prison inmate has five prior convictions, according to Rafael Mangual, who studies the criminal-justice system at the Manhattan Institute.” Continue reading