In Maine, a push to enumerate a constitutional right to food

(CN) — For Maine state Representative Billy Bob Faulkingham, amending the state Constitution to recognize a constitutional right to food is just common sense.

“In the last decade I think everybody, no matter where you are in the country, has probably seen an expansion of the farmers’ markets and such because people want to get that food closer to home, healthier food, get away from the big corporate producers,” said Faulkingham, a fifth-generation lobsterman who has captained a lobster boat since he was 15.

Thanks to a resolution he helped introduce into the legislature, Maine voters will decide on Election Day whether to become the first state to codify a right to food in their state Constitution.

The proposed amendment says individuals have a right to consume food of their own choosing, which includes saving seeds and the ability to grow, raise and harvest that food as long as private property rights and natural resources are not abused in the process.

The spending to launch campaigns surrounding this ballot question has been miniscule, comparable to a brisk town-wide election. Newspaper op-eds have been published and some radio spots have aired across the state. It is unlike the millions spent on another question posed to Maine voters this year over whether to ban construction of electrical transmission lines across a portion of the state.

But unlike the transmission line question, proponents and skeptics of Maine’s right to food initiative believe the issue may crop up in other states. Indeed, Washington and West Virginia have begun to consider it.

Furthermore, the question has shaken the stereotypical political alliances. Faulkingham, a Republican, has pushed for the bill with Senator Craig Hickman, a Democrat who runs an organic farm. The coalition opposing the adoption of the amendment include animal rights groups and agricultural associations.

Detractors say the amendment’s language is too vague and could lead to unintended consequences for how animals are raised and how food safety is enforced in the state.

According to Faulkingham, the proposed right to food amendment grew out of a grassroots food sovereignty movement.

Around the time Faulkingham began paying attention to the movement, years before he entered the legislature in 2018, the state had cracked down on a Maine farmer who it said was not licensed to sell raw milk.

“It definitely struck me the wrong way… what it seemed like the government was doing to him,” Faulkingham said.

In 2014, the Maine Supreme Court ruled against Dan Brown, a farmer who had sold raw milk without a distributor’s license and argued a town ordinance exempted him from the state requirements regarding the labeling of his milk when he sold it from a farmers’ market and a stand.

The Maine Supreme Court took up the matter and ruled against Brown, saying the municipal exemption only applied to inspection and licensing requirements at the local level.

In 2017, the legislature passed the Maine Food Sovereignty Act that allowed towns to pass ordinances that prevented state food laws from applying to producer-to-consumer purchases of food.

The question now before Maine voters, Faulkingham said, will codify an individual right, similar to that of the Maine’s right to bear arms: the Constitution’s language says it’s a right that cannot be questioned but it also comes with restrictions.

Little will change if the amendment passes, Faulkingham said, but it would help promote self-sufficiency in the land with deep farming, hunting and fishing traditions.

For now, the right to food is a preventative one, designed to be a bulwark against government infringement, the lawmaker said, though he does not see a lot of infringement currently.

“We worry about that in the future,” Faulkingham said. “And we think that a constitutional right, definitely gives some people some standing when it comes to those sorts of things.”

Denisse Cordova Montes, professor at the University of Miami, said Maine is leading the nation in asking its voters about enshrining a right to food, a right that’s recognized internationally, from constitutions of various countries to the 1948 Universal Declaration of Human Rights.

Cordova Montes, a human rights lawyer who has worked on the right to food, said the right is a holistic one that encompasses consuming sustenance with dignity. Food, Cordova Montes said, should be nutritionally adequate whether the individual is a baby or a pregnant mother, and accessible to the person who is seeking to grow their own food and the person living in a food desert, which are communities far away from a grocery store where they could obtain healthy food. 

“By including it in the Constitution, it will result in, I think, the government of Maine taking it into account when it comes to policy planning … It just becomes a priority in the state,” Cordova Montes said.

In April, Cordova Montes and an intern with the University of Miamai School of Law’s Human Rights Clinic issued a legal memo to the Maine Attorney General arguing the right to food resolution being considered in the legislature did not include a right to commercially produce and save seeds, which allowed the state to continue to regulate seeds for diseases and blight.

Wayne Pacelle, president of Animal Wellness Action said it has only been in the last few years that some states have banned the use of intensive confinement of animals on large commercial farms. Over the years, he has worked on ballot initiatives in states such as Massachusetts and California to ban extreme confinement and fought ballot measures in places such as Oklahoma which considered right-to-farm questions that would have prevented the prohibition on such confinement. 

Pacelle said he’s concerned about copycat resolutions in other states and that could be used to roll back animal welfare protections. The right-to-food amendment seems to have grown from Maine food sovereignty movement, but its language he sees to be a combination of right-to-farm and a right-to-hunt resolutions.

“We all think that we should have access to food and it should be wholesome and it should be quality food, but the measure doesn’t do anything to advance that. I mean, it’s just not clear that the rhetoric aligns with the actual language of the provision,” Pacelle said.

Beth Gallie, president of the Maine Animal Coalition, says amending the constitution should be rare and already the constitution says whatever rights are not enumerated in the document are reserved for the people.

“If everyone starts putting their rights into the Constitution, it’s like a 100-page document. No, it’s not the way to go,” Gallie said.

In previous years, the legislature considered other versions of the right to food amendment. This version, Gallie said, does not raise as many red flags but there are still concerns. She also worries that creating a constitutional right and questions surrounding it would be left in the hands of the state’s judges.  

But Scott Bloomberg, a law professor who teaches constitutional law at Maine University School of Law, said if the Maine courts interpret the right, they will probably look to evidence about what the voters thought they were enacting, if it’s passed.

The courts are unlikely to conclude that the right obligates the government to provide food to the state’s residents, but nevertheless, they will “have to grapple with what is the scope of the right and what kind of laws intrude on the right,” Bloomberg said.

But 100 years into the future? Courts could take a more expansive reading, Bloomberg said.

“If this is really a response to a future problem, it is really hard to assess what a court is going to make of it and when is somebody going to challenge a law, under this amendment,” Bloomberg said.

Julie Smith, executive director of the Maine Farm Bureau Association, said the vague language of the proposed amendment could lead to unintended consequences for food safety. The kind of foods Maine farmers produce is varied, said Smith, from wild blueberries, a diverse number of vegetables and “some of the best tasting milk in the whole United States.”

The bureau supports customers buying raw milk, Smith said, but licensing is important.

“You can’t see bacteria,” Smith said. “There’s no way to know whether your milk is safe or not for consumption unless you test it.”

But a court could decide, under the proposed amendment, that an individual who got sick drinking uninspected milk chose to buy that milk. According to Smith, the question becomes whether the state had a right to inspect the dairy farmer to see if, say, the farm’s water source is contaminated.

Furthermore, Smith said it could affect hunting and fishing laws, hampering efforts to notify individuals digging for clams that there’s a red tide, for instance.

And while the question before voters over the transmission lines attracted more dollars than the right to food question, Smith said the latter is the more important issue.

“This absolutely impacts every single person in the state of Maine and it impacts their future,” Smith said. “A transmission line, you know what? You can take it down and the forest can regrow. You take away food safety, people die.”

There has been little polling on this issue. Whether voters see this as a common-sense enshrinement of a right to self-sufficiency or they see unintended effects to the state’s animals and food safety, those involved in the issue will find out on Election Day if the voters decide it’s a bite they want to take.

from Courthouse News

Jailed over Facebook taunts: Free-speech battle hits 1st Circuit

BOSTON (CN) — A man who was arrested for calling his local police chief a “coward” on Facebook provoked a sharp debate Thursday in the First Circuit over his claim that New Hampshire’s criminal defamation law is unconstitutionally vague.

The law makes it a crime to knowingly say something false that will subject someone to “hatred, contempt or ridicule” within the person’s “professional or social group.”

“How is law enforcement supposed to determine what would subject a person to hatred, contempt or ridicule?” U.S. Circuit Judge O. Rogeriee Thompson asked the parties assembled at the Boston courthouse this morning. “It’s odd in this political environment that that’s the standard.”

Assistant Attorney General Samuel Garland replied that it’s an “objective” standard because it’s based on “what a reasonable person would believe, not some hypersensitive person.”

But Thompson, an Obama appointee, had other questions. “What’s a social group?” she asked. “What are the boundaries of that?”

It’s “a group that a person would typically socialize with,” Garland answered, a response that didn’t seem to particularly impress the judges.

Chief U.S. Circuit Judge Jeffrey Howard noted that, under New Hampshire law, a group can qualify if it’s “respectable.” He asked, “Does ‘respectable’ have a definition?”

“I’m not sure,” Garland admitted. He suggested a Rotary Club or a church group.

“Doesn’t that give elevated protection to ‘recognized’ social groups and not others?” Thompson shot back.

But U.S. Circuit Judge William Kayatta seemed unimpressed. He described “hatred, contempt or ridicule” as “a classic 200-year-old formulation” of defamation and said that “if two of my neighbors hear something and think less of me, well, that’s my social group.”

The plaintiff in the case, Robert Frese, 66, lives in a trailer park in Exeter, New Hampshire. This is his second brush with the state’s criminal defamation law; in 2012 he was charged with calling someone’s life coaching business a “scam” on Craigslist, for which he was fined $372.

In 2016 Frese was charged with smashing the rear window of a neighbor’s SUV. He received a suspended sentence, but if he had been convicted on the new charge of calling the police chief a coward, the suspension could have been revoked and he could have been sent to prison.

The idea of criminal defamation developed as part of the “star chamber” proceedings against Henry VIII’s political enemies. In the U.S. it was originally seen as a less drastic alternative to dueling, but its popularity gradually waned due to the First Amendment and the availability of civil suits for libel.

Today 13 states still have criminal defamation laws: Idaho, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia and Wisconsin. Another dozen or so states criminalize hate speech against minorities.

Michigan, Oklahoma and Virginia specifically prohibit questioning a woman’s chastity, although the fine for calling a woman a slut in Oklahoma is only $25.

Robert Frese was arrested in May 2018 for violating New Hampshire’s criminal libel law over comments he posted to a news article about a retiring Exeter police officer. The ACLU is challenging the law as unconstitutional. (Photo courtesy of ACLU via Courthouse News)

Frese’s latest dustup began when he posted on a local newspaper’s Facebook page that Exeter Police Chief William Shupe was a “coward” who was “covering up for a dirty cop.”

The Exeter police arrested him, saying Frese broke the law because there was no evidence that his statement was true. But after the case generated local publicity, the New Hampshire Department of Justice stepped in and said the cops had used the wrong standard and that even if the statement were false, Frese shouldn’t be prosecuted if he believed it was true.

After the charges were dropped, Frese and the ACLU brought a lawsuit seeking to have the law struck down altogether. The ACLU also claimed that the law violated the First Amendment, but the judges focused solely on the vagueness issue.

In New Hampshire, police can decide whether to prosecute someone for defamation without a neutral magistrate being involved — circumstances that the ACLU claims creates a conflict of interest when the person is being prosecuted for disparaging the police. Defendants also don’t get a court-appointed attorney or a jury trial.

A common criticism of criminal defamation laws is that they’re frequently used to silence political opposition, as they were in Henry VIII’s day. A study in a Texas law review found that nearly half of such prosecutions are “basically political,” and another study of 77 cases from 1965 to 2002 found 68.8% were about public figures and matters of public concern, with cops and politicians being the most frequent complainants.

In one recent case in Georgia, a woman was arrested and put in jail after she griped on Facebook that her husband, a sheriff, wouldn’t go out and buy Tylenol for her child who had the flu. The case was thrown out because Georgia’s criminal defamation law had previously been repealed.

According to the ACLU, prosecutions for criminal defamation are on the increase as a result of social media, which makes it easier for police and others to know who is criticizing them.

In 1964 the Supreme Court upheld Louisiana’s criminal defamation law in a case where District Attorney Jim Garrison verbally attacked a number of judges. Garrison was famously portrayed by Kevin Costner in Olive Stone’s 1991 film “JFK.”

In that case, the Supreme Court said truth should be a defense and that prosecutions for criticizing public officials require proving actual malice or reckless disregard of the truth. The ACLU claims that decision should be overruled, although it also says the New Hampshire law is unconstitutional in any event.

“The case could be a vehicle for the Supreme Court to revisit the doctrine of criminal defamation for the first time in more than 50 years,” said Jeffrey Hunt, a First Amendment expert at Parr Brown in Salt Lake City, Utah.

“It’s hard to square the concept of seditious criminal libel embedded in the New Hampshire statue with our modern conception of the First Amendment and its robust protections for political speech,” Hunt added.

But Kayatta, an Obama appointee, seemed to think the two could be squared. He pointed out that a defendant “can only be guilty if he purposely communicates knowing it will cause ridicule. If he tells the jury he didn’t think it would result in ridicule, he gets off.” Kayatta also noted that if the police misuse the law, they can be sued for malicious prosecution.

But the ACLU’s attorney, Brian Hauss, countered that police “can always claim someone had knowledge.” And “in practice, with a poor defendant,” Hauss continued, “the natural response is to plead guilty. There’s a power imbalance, especially with no jury trial.”

Hauss noted that in one case, a woman was convicted of defamation simply for claiming in court that a police search was illegal. The defamation charge “just got railroaded through,” he said.

By the end of the argument Garland sensed that the panel was divided and proposed a compromise. “If you’re not sure” what the words in the law mean, he suggested, “don’t just strike down the statute. Instead ask the New Hampshire Supreme Court to define those terms.”

from Courthouse News

Abortion laws

Read the order here.

from Courthouse News

Ohio-led coalition of states sues to stop change to family planning funding policy

Cincinnati (CN) — Ohio’s attorney general filed suit Monday seeking to halt implementation of a Biden administration policy allowing family planning to clinics that make abortion referrals to again receive federal funds.

Dave Yost, along with 11 other state attorneys general, filed for an injunction to block a rule change to the Family Planning Services and Population Research Act of 1970. Specifically, the suit seeks to restore a Trump administration policy enacted in 2019 requiring Title X clinics to be physically and financially independent of abortion clinics, and refrain from referring patients for abortions.

The U.S. Department of Health and Human Resources, which administers Title X funding, implemented the new rule earlier this month.

Yost, a Republican, said the 2019 policy is more in line with the law’s intent to provide low-income Americans’ access to contraception and preventative health services while also prohibiting funds going towards the use of abortion as a means of family planning.

“You can’t ‘follow the money’ when all the money is dumped into one pot and mixed together,” Yost said in a press release. “Federal law prohibits taxpayer funding of abortion — and that law means means nothing if the federal money isn’t kept separate.”

“That, frankly, is the real reason behind the rule,” he added.

Joining Yost in the suit are the attorneys generals of Alabama, Arizona, Arkansas, Florida, Kansas, Kentucky, Missouri, Nebraska, Oklahoma, South Carolina, and West Virginia.

A spokesperson for the Department of Health and Human Services did not immediately respond to a request for comment.

The suit comes a week before the U.S. Supreme Court is scheduled to hear oral arguments on a controversial Texas law restricting abortions in the Lone Star State. Senate Bill 8, the Texas Heartbeat Act, not only outlaws abortions after an ultrasound detects a fetal heartbeat, but also allows private citizens to sue anyone who aids a woman in obtaining an abortion.

The law makes no exception for rape or incest.

The cases before the court — Whole Women’s Health v. Jackson and U.S. v. Texas – challenge the law on the limited question if it is subject review in federal court.

from Courthouse News

High court sides with police in use-of-force cases

WASHINGTON (CN) — Enforcing qualified immunity rights for police officers, the Supreme Court on Monday summarily reversed two lower court orders that allowed excessive force cases against officers to move forward.

This story is developing…

from Courthouse News

Fifth Circuit temporarily reinstates controversial Texas abortion ban

AUSTIN, Texas (CN) — Texas’ controversial abortion law, the Texas Heartbeat Act, has been lifted from a temporary restraining order issued by a federal judge earlier this week. The Fifth Circuit Court of Appeals struck down the order blocking enforcement of the law Friday evening after the state requested the appeals court to step in. 

The federal appeals court’s decision to restore the controversial Texas law comes two days after U.S. District Judge Robert Pitman ruled that the law unconstitutionally restricts a person’s access to an abortion, in a case filed by the Biden administration against the state of Texas.

In their unanimous decision, the judges ruled in favor of the state to suspend Pitman’s order and allow for enforcement of the law to continue. The Department of Justice has until Oct. 12 to respond to the ruling, which they are likely to appeal to the U.S. Supreme Court.

Texas Attorney General Ken Paxton took to Twitter, voicing his praise of the Circuit Court’s decision.

“Great news tonight, The Fifth Circuit has granted an administrative stay on #SB8. I will fight federal overreach at every turn,” wrote Paxton.

Abortion rights groups have responded with disappointment but were not surprised by the conservative court’s decision. President and CEO of the Center for Reproductive Rights Nancy Northup said in a statement, “ It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas.” 

The law at the center of the dispute is one of the strictest anti-abortion laws ever to be enacted. The Texas Heartbeat Act, also known as Senate Bill 8, bans abortion once a fetal heartbeat is detected, approximately six weeks of pregnancy. This provision goes against Supreme Court precedent that a person is afforded an abortion until the fetus is viable outside of the womb.

Because six weeks of gestation is before many women are aware they are pregnant, women’s health advocates have argued that the law amounts to a total ban on abortion in the state.

While SB 8 is the strictest law restricting access to an abortion, it is also unique in its method of enforcement. In order to evade judicial review, Texas GOP lawmakers gave private citizens the means to enforce the law by providing a civil cause of action in which people in or out of state may file lawsuits against anyone who “aids and abets” in an abortion procedure.

This means that abortion clinics that conduct an abortion, family members who provide financial support to someone seeking an abortion, or a driver that drove someone to a clinic may be sued. Plaintiffs in such cases could be awarded $10,000 and attorneys fees if their case is successful.

Abortion rights groups have described the law’s method of enforcement as putting a bounty on the heads of abortion providers and families who are seeking to exercise their rights. As of now, two lawsuits have been filed against an abortion care provider in San Antonio. The suits were filed by two men who are not Texas residents. A state district court judge has blocked other lawsuits against Planned Parenthood clinics in the state from proceeding. The pro-life group Texas Right to Life filed suit once the law took effect.

Since the law took effect on Sept. 1, abortion providers in Texas have stopped offering the procedure. This has driven many Texans to travel out of state to obtain an abortion. Clinics in New Mexico, Oklahoma and Louisiana have reported seeing almost all out-of-state patients over the past month. 

Pitman wrote that the state crafted “flagrantly unconstitutional” law and that “the State contrived an unprecedented and transparent statutory scheme to” enforce it.

Some clinics in the state did announce they would continue offering abortions after Judge Pitman ordered the law be blocked. Now, with the law being restored, any clinic that provided an abortion may be retroactively sued under SB 8. 

On the same day SB 8 took effect, the U.S. Supreme Court denied an emergency motion to block the law while cases in lower courts play out. This drew widespread criticism of the high court and its use of ruling on emergency orders, often referred to as the shadow docket. Justices left open the opportunity for them to consider the constitutionality of the Texas law once a case has worked through the traditional channels, much like the current case filed by the Justice Department.

The Supreme Court began its term this week. In December, the court will be taking up a Mississippi law that bans abortion within 15 weeks of gestation. With a solidified conservative majority of the court, abortion rights groups fear that case could set the stage for Roe v. Wade, the 1973 case that established a person’s constitutional right to an abortion, to be overturned.

from Courthouse News

In California, inconsistent school Covid rules are the norm

SAN FRANCISCO (AP) — Now that schools are back in session, parents are mastering this year’s new school vocabulary: Modified quarantine, antigen vs. PCR testing and the so-called Swiss cheese model for keeping classrooms safe, which has become the butt of a few jokes.

But aside from a common pandemic lingo there is little similarity in how California schools are applying Covid-19 rules, leading to a dizzying patchwork of approaches that parents and teachers say can be confusing and frustrating.

While California has a few statewide requirements for all schools, such as requiring all public and private school teachers and students to wear face masks indoors, and a vaccinate-or-test rule for teachers starting in mid-October, many other details are left to local school officials. That includes the who, when, where and how to test for Covid-19, and ever-shifting quarantine rules.

Some large urban districts like Los Angeles, San Francisco and Oakland tell students to mask up for outdoor recess, while many others do not.

Some schools have rigorous on-site mandatory Covid-19 testing programs, but many don’t.

Across the state, parents who want to see more testing are looking to the Los Angeles Unified School District — the nation’s second-largest — as a model. The state’s largest school district has an ambitious program that mandates weekly on-site testing for all 600,000 students and 75,000 employees.

“It’s crazy that a school district as huge as Los Angeles can pull it off, and we’re just twiddling our thumbs over here,” said Samantha Benton, a mother of two in Sacramento, where only voluntary testing is offered.

Last week, California became the first in the nation to say it will require the coronavirus vaccine for all public and private schools once the shot receives full regulatory approval, which may not kick in until the next academic year. Until then, the decision is up to local districts.

A few of California’s biggest school districts, including Los Angeles and Oakland, have mandated vaccinations for students 12 and over. San Diego Unified will require vaccines for staff and students 16 and up.

The California School Boards Association calls it “a patchwork of different methods” that is not the most effective approach and is troublesome because it asks school officials to act as medical experts.

Pandemic-era conflicts between school districts and teachers have entered a new phase. The Oakland teachers union said its district guidelines are “contradictory or confusing” and not enforced. The union is seeking mandatory weekly testing and monitors to enforce mask wearing.

Teachers “are tired of waiting for a major outbreak … to uphold commonsense safety measures,” the union said in a statement this week.

Nationwide, as in California, the rules depend on where you live, and often on politics. Republican governors in Arizona, Iowa and Florida have banned school mask mandates, but many parents, local leaders and courts are pushing back. Some states have standard policies for all districts, while others allow schools to set their own rules. At least nine states have explicitly said schools cannot require vaccinations, including Alabama, Arizona, Arkansas, Indiana, Iowa, Montana, Oklahoma, Tennessee and Texas.

Vaccinations are one element of the “Swiss cheese model” of pandemic defense, a metaphor for multiple layers of protection to block the spread of germs. A cartoon-like drawing of the model, with 10 slices of cheese, has become a regular part of school safety presentations.

“They show this at like every board meeting and every school Zoom,” said Sacramento mother of two Kristin Goree. “In group chats it’s like, ‘No! Not that again!’”

Goree agrees with the concept of combining layers of protection, like social distancing, masks, hand-washing, testing and ventilation. “But our school is not implementing every layer of cheese — like mandatory testing,” said Goree, whose children are signed up for optional weekly testing while most of their classmates are not.

Quarantines get meted out differently, too. Sometimes an entire classroom is ordered to quarantine, sometimes no one is.

Laura Hawkins’ healthy 6-year-old daughter missed a week of kindergarten at her San Francisco school after a classmate got Covid-19.

“On day three of school, we got a text message and a robocall saying your child is a close contact to someone who tested positive,” said Hawkins. They had two options: stay home for a 10-day quarantine or stay home five days, followed by a negative Covid-19 test. They choose the latter, but soon after returning to school her daughter woke up with a stuffy nose. Hawkins diligently reported it to the school, which required proof of another negative PCR test before allowing her back.

The laboratory PCR tests often take 24 hours or more to return results, but are more accurate and reliable than the rapid antigen tests that can be done at home.

“She missed a total of six days of school, having no more than a stuffy nose,” said Hawkins.

Outside Los Angeles, Long Beach Unified, with about 70,000 students, scaled back its initial weekly testing for unvaccinated students when the positivity rate during the first three weeks dropped under 1%. It is now randomly testing 10% of each school’s unvaccinated students.

The small Mammoth Unified School District abruptly stopped in-person classes for two weeks in September after “spiraling” Covid-19 cases triggered more than 300 student and staff quarantines in the district of 1,200 students.

In Sacramento, when officials announced an outbreak of two dozen cases Sept. 2 at a K-6 charter school, they kept the school open. Some parents were later outraged to learn that health officials had initially recommended shutting the school for two weeks.

The teachers union filed a formal workplace safety complaint accusing the district of mishandling the outbreak and ignoring pandemic protocols by allegedly encouraging staff with cold symptoms to work because of a teacher shortage and for failing to properly investigate, contact trace and communicate about Covid-19 exposure.

Sacramento City Unified “rejects these assertions,” it said in an emailed request for comment that said the district works closely with public health officials and follows a detailed strategy for students and staff that allowed it, in this case and others, “to remain open while protecting the health of students and staff.”

Sacramento City Unified is also suffering from a teacher shortage, like districts statewide, that has been “particularly acute” in its Independent Study program, said Superintendent Jorge Aguilar. More than 1,700 students have opted for online school and the district is still scrambling to hire 32 teachers.

Samantha Benton’s fourth grade son was still without a teacher four weeks into the fall term. She is among some 200 parents who have sent multiple letters to the district saying it has failed to provide both a safe learning environment and an equitable education online.

Benton, an ICU nurse, said she is keeping her kids in online school because she doesn’t trust the district’s safety protocols.

“The only way I would feel safe is if there were mandatory testing weekly, if everything was outdoors and if everyone eligible for a vaccine was required to get one,” she said.

Beyond the mask rules and vaccine mandates, many parents say discrepancies are simply illogical.

The city of Folsom in the Sierra Nevada foothills has two high schools. One school held a homecoming, the other will not.

Both schools allow students to remove masks at lunch and during passing periods, and they pack the stands unmasked at football games, said Ronda Sardo, whose son attends Folsom High, which is not allowed to have the outdoor dance.

“Sorry, kids. The school down the street gets homecoming and you don’t,” she said.

__

By JOCELYN GECKER Associated Press

from Courthouse News

Oklahoma judge allows three new abortion laws to stand, but blocks near-total ban

OKLAHOMA CITY (CN) — An Oklahoma state judge allowed three new laws restricting medication abortions and requiring doctor certification to stand Monday but temporarily blocked two abortion laws, including a ban on procedures for pregnancies after about six weeks of pregnancy.

Ruling from the bench, Oklahoma County District Judge Cindy Truong allowed House Bill 1904, Senate Bill 778 and Senate Bill 779 to stand. HB 1904 requires doctors performing abortions to be board-certified in obstetrics and gynecology. Abortion rights groups say that six out of ten abortion doctors in the state will no longer be able to perform abortions under that law.

SB 778 requires medication abortion patients to get an ultrasound at least 72 hours before taking the drugs, and SB 779 imposes more certification requirements on medication abortion drug manufacturers, distributors and providers, including the requiring of admitting privileges at a nearby hospital for abortion doctors.

Planned Parenthood of Arkansas & Eastern Oklahoma, the Tulsa Women’s Reproductive Clinic and three other plaintiffs sued Oklahoma in September to stop the five Republican-sponsored laws from going into effect on Nov. 1. The plaintiffs claim the laws are an unconstitutional violation of due process rights and will have women facing “tremendous or insurmountable barriers” to access care.

Judge Truong did issue a temporary injunction Monday blocking HB 1102, which the plaintiffs claim is an effective “total ban” on abortions as it declares that physicians who perform them are engaging in “unprofessional conduct” and face a suspension of their medical license for at least one year. Truong also blocked HB 2441, another near-total ban on abortion that bans the procedure after there is a “detectable fetal heartbeat.” Embryonic cardiac activity can be detected as early as six weeks of pregnancy, which is often before many women realize they are pregnant. The judge ruled both laws are unconstitutional under Roe v. Wade.

Republican Oklahoma Attorney General John O’Connor’s office could not immediately be reached for comment after office hours Monday evening.

The plaintiffs are represented by the nonprofit Center for Reproductive Rights, who said they will appeal to the Oklahoma Supreme Court to try and block the remaining three laws.

“We are stunned that the trial court would allow these unconstitutional laws to take effect — laws that will seriously reduce access to abortion in Oklahoma,” said Nancy Northup, the center’s president and CEO. “Right now, people in Texas are traveling to Oklahoma and other neighboring states to access abortion. If these laws take effect, it will decimate access not only in Oklahoma, but in the whole region.”

Texas’ recently enacted Senate Bill 8 imposes a near-total ban on abortion as it outlaws the procedure when a fetal heartbeat is detected at around six weeks of pregnancy. The law has forced women to seek abortion care in neighboring Oklahoma, Louisiana and New Mexico. It offers no exceptions in cases of rape or incest and allows private citizens to seek up to $10,000 against abortion providers and anyone who “aids and abets” in an abortion procedure.

The Biden administration has since sued Texas in federal court in Austin, claiming SB 8 is unconstitutional. An Oklahoma City abortion clinic told the court in that case last month that SB 8 has caused two-thirds of their phone calls to be from Texas patients now.

Judge Truong’s ruling comes over two years after she allowed H.B. 1721 to stand. That law bans a common second-trimester abortion procedure that abortion rights advocates say is the safest such procedure. Passed in 2015, the law bans the dilation and evacuation procedure that alternates the use of suction and forceps to empty a uterus. HB 1721 had been blocked by a temporary injunction for four years before Truong’s ruling in 2019.

from Courthouse News

Contrition helps nonviolent Jan. 6 defendants avoid jail time

WASHINGTON (CN) — Two more Capitol rioters avoided jail time on Friday, adding to the growing number of defendants who have received light sentences for joining the Jan. 6 insurrection without adding to the violence. 

Andrew Ryan Bennett, of Maryland, received three months of home confinement, two years of probation and 80 hours of community service, while Danielle Doyle, of Oklahoma, received two months of probation and a $3,000 fine. Both had accepted plea deals for the low-level misdemeanors of parading, demonstrating or picketing in a Capitol building.

“I’d like to apologize to you and the country for entering the Capitol,” Bennett said during his sentencing hearing on Friday. “I was not thinking clearly, pumped up on adrenaline as I was. What I did was wrong and I hold myself accountable for my actions.”

Bennett livestreamed his participation a the Capitol riot to his Facebook page. Though not a member of the far-right extremist organization, he was wearing a hat with the Proud Boys logo at the time. He didn’t commit any violence on Jan. 6, and he even admonished other rioters to stop being destructive several times — an important fact that prosecutors say distinguished Bennett from two Ohio friends whom U.S. District Judge James E.Boasberg sentenced to 45 days in prison on Wednesday. 

Boasberg on Friday asked prosecutors several times why their recommendation for Bennett — home confinement and probation — was so different from their recommendation of four months’ imprisonment for Derek Jancar and Erik Rau. 

“It’s a pretty significant difference,” Boasberg said. “I’m interested in why this defendant should receive a significantly lighter sentence than what I gave earlier this week.”

Prosecutors responded that Bennett’s early plea deal, full cooperation with the FBI and attempts to stop other rioters from being destructive was crucial to his lighter sentence. 

“I very rarely impose a sentence greater than what was asked for by the government,” Boasberg said, noting that he was concerned with the fact that Bennett had posted “Chaos is coming” on Facebook on Jan. 4, and yelled at an officer while in the building. 

“What you and others did on Jan. 6 was nothing less than attempt to undermine our system of government,” Boasberg told Bennett. “I want you to know how serious I and others view these actions.”

In a separate courtroom Friday, U.S. District Judge Trevor McFadden opted to give Doyle a lighter sentence than the government’s recommended two months of home confinement and three years of probation. 

Doyle, a senior season ticket account manager for the Oklahoma City Thunder, entered the Capitol through a broken window and stayed inside for about 25 minutes. 

“I wish I had some profound thing to tell you,” Doyle told McFadyen during her sentencing hearing. “Why I went into that building I can’t tell you.”

McFadden’s imposition of a $3,000 fine is the first time a judge has given a Jan. 6 defendant any fine, other than the standard $500 restitution every misdemeanor Capitol riot defendant is required to pay. 

from Courthouse News

Slogans rule: reality is dead

A friend of mine has given up talking politics with his brother. He asked him: “How can you be anti-abortion but in favor of the death penalty?”

I’d never heard it put so clearly. To answer that question requires a bit of thought — real and earnest thought, not just a slogan: “Life is sacred.”

Well, if it is, when does life stop being sacred?

Slogans are all we get these days from one of our major political parties: Slogans untethered from reality. Slogans rule, because that’s all their followers — and probably the politicians themselves — can understand.

At last count, Republican legislators in 27 states have introduced bills that would prohibit, or limit, teaching of “critical race theory” in public schools.

And what, pray tell, is critical race theory? 

It’s the historical truth that the United States did not develop as a “freedom for all” kind of place. We built into our Constitution, and federal, state and local laws, and carried out, enslavement of black people, wholesale massacres of Native Americans, discriminatory laws against Chinese immigrants, and other atrocities.

Faux News, the Republican Party’s Pravda (Truth) has reported on critical race theory more than 1,900 times in four months. 

But this is not a theory, as Faux News would have it. It’s history — not all of our history, but quite a bit of it.

I taught Apache students one year in a public high school. Ninety percent of their ancestors had been slaughtered by the U.S. military.

Where is the “theory” in that? 

One night in Muleshoe, Oklahoma, when I was an itinerant jazz musician, I checked into a cheap motel. Nailed to the inside of the door were the rules of the house. The rules stated that Niggers could not use the laundry, Niggers could not leave their room after dark, Niggers had to leave by 8 a.m., and so on. (I see no reason to sanitize this with “the N-word.” That’s what the hotel said its rules were.)

Where is the “theory” here?

Today’s Republicans — a lively, chittering bunch, for zombies — have moved on from their idiotic attack slogan against teaching U.S. history. Now their slogan is against science: Covid-19 doesn’t exist. And if it does, it was invented by Bill Gates and a Hungarian Jew. Those 680,000 Americans died of something else. And the Jan. 6 attack upon Congress was not an attack at all — just a normal tourist visit.

I refer again to my friend and his brother, who could not come up with an answer to a simple, pointed question. Where is the logic? Where is reality? There is none: It’s all slogans. And, unfortunately, to what should be our country’s deep disgrace, millions of Americans today seem incapable of reasoning, or talking, beyond a slogan.

“Make America Great Again.” What does that mean? Go back to the 1950s? To before Brown v. Board of Education? To the House Un-American Activities Committee? To before Election Day, 2016?

“Black Lives Matter” is a slogan. But it has a sense to it. When a cop, or a citizen with a gun, kills a Black man or woman or child, it should matter as much to the courts, to our neighbors and our country, as it would as if the perp had killed a white man, or woman, or child. 

There is a cogent argument behind that slogan, based upon history and reality.

But I swear for the life of me that I have no idea — no, actually I do have some idea — of what Make American Great Again means. It’s a slogan with a sneaky, implied sneer — but nothing about which I’ve heard anyone make a clear and cogent argument.

How can you be anti-abortion and pro-death penalty? How can you regurgitate “life is sacred” without thinking about it, or at least looking at it? At yourself?

Is life sacred only in the womb? But once they’ve slapped you on the butt and you’re breathing air, your life ain’t sacred anymore?

I’d like a reasoned response to this, but I’ve yet to see one.

When reasoned conversation becomes impossible, slogans rule. Idiocy rules. Bumper stickers govern.

Eat the Communist Koalas.

Boycott the Platypus.

Clobber a Palestinian in the Head With an Israeli.

Nuke the Gay Whales.

from Courthouse News