My latest interview appeared in Westlaw Today. 

Q&A: Will federal oversight improve Minneapolis policing?

2023 CIVILRBRF 0075

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By Josh Numainville

WESTLAW TODAY Civil Rights Briefing

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June 28, 2023

(June 28, 2023) - Law professor David Schultz explains the significance of a recent U.S. Department of Justice report that found persistent civil rights violations by the Minneapolis Police Department and discusses what his own research unearthed about the city's payouts for police misconduct claims.

Schultz, who recently released a first-of-its-kind statewide database1 on governmental payouts for police misconduct incidents in Minnesota, says the DOJ report raises important questions about how little Minneapolis has paid to resolve claims.

He cautions that while the MPD will be subject to a consent decree mandating certain reforms as a result of the DOJ's investigation, it will likely take years to see meaningful change.

Westlaw Today: What stood out to you about the DOJ's report on Minneapolis policing?

David Schultz: The DOJ report2 is perhaps the most comprehensive ever done on policing in Minneapolis, with a more detailed analysis and statistics than the Minnesota Department of Human Rights Report3 from last year. The latter report concluded, "A pattern or practice of discrimination is present where the denial of rights consists of something more than isolated, sporadic incidents, but is repeated, routine, or of a generalized nature."

The basic takeaway from the DOJ report is that the MPD violated First (free speech) and Fourth (illegal search and seizure) Amendment rights systematically, especially in terms of its use of force against people of color.

In reaching that conclusion it is first important to understand two points concerning the DOJ report. First, its focus is on the use of excessive force. It did look at other issues such as police stops and what is often called racial profiling, but most of the report examined racial disparities in terms of use of force. Second, the U.S. Supreme Court has said that questions about the use of force raise constitutional questions, defining them as a Fourth Amendment search and seizure issue.

The picture the report paints of Minneapolis is troubling. It reinforces a point that many of us in Minnesota have made for years — Minneapolis is a tale of two cities.

As the report states: "The typical white family in the Twin Cities is doing better than the national average for white families, and the typical Black family in the Twin Cities is doing worse than the national average for Black families."

The causes of the racial disparities are many, but when it comes to policing, the DOJ offers several stark conclusions:

• The MPD uses unnecessary or excessive force across a range of tactics that include physical restraint, tasers and weapons.
• Officers discriminate against people of color in their enforcement activities, including the use of force and traffic stops.
• Despite banning neck restraints in 2020, the MPD still uses them.
• Officers fail to intervene to prevent other officers from using excessive force and do not provide needed medical care.
• The MPD violates the First Amendment rights of protestors and the media to cover, photograph, or report on police misconduct.

Overall, the report reaches a series of conclusions that the MPD is out of compliance with the U.S. Constitution, in part because of poor or improper training or supervision.

WT: Were you surprised by the DOJ's findings?

DS: Nothing in this report came as a surprise, at least to me. There are two reasons for this. One, back in the 1990s I was a researcher at the Institute on Race and Poverty at the University of Minnesota, and we documented the extensive racial discrimination in Minneapolis, and we found the Twin Cities area to be one of the three most segregated metropolitan areas in the nation. Thus, the problems with race should not have been a surprise.

Second, in the early 2000s, I taught a class on police civil and criminal liability at Hamline University. Unfortunately, news of police misconduct and payouts for constitutional violations were a constant source of case studies for my students. I mentioned both of these points because they both frame my perspective on this report and suggest that there were many warnings ahead of the DOJ report.

WT: How will the DOJ's report shape Minneapolis policing going forward?

DS: The DOJ report comes with it a consent decree and federal monitoring of the city of Minneapolis. This is alongside a consent decree with the Minnesota Department of Human Rights. The city will be under legal obligation to undertake reforms. In the past, the city lacked the political will or ability to forge and implement reforms. The DOJ is asking for a lot of change — the question is whether the city can do this on its own or even as a result of possible litigation. Whatever happens, it is not going to occur overnight.

WT: Have other cities in the United States entered into consent decrees with the federal government over policing? Have those agreements led to meaningful reforms?

DS: Minneapolis is not alone. Albuquerque, New Mexico; Oakland, California; and Seattle, Washington; are but three examples of other cities that entered into consent decrees. The lesson from them is that reform is slow, complicated and expensive.

Do not expect reforms overnight — it could take years to see meaningful change. Change is incremental and requires new training, new personnel, and perhaps millions of dollars to finance it. The story in these cities is that meaningful reform requires a change in political and organizational culture. This is never easy, but reform can happen.

WT: You recently released your own report looking at how much local governments in Minnesota have paid to resolve police misconduct allegations. How much has Minneapolis paid out? How does the city compare to the rest of the state?

DS: After Minneapolis paid out $27 million to the family of George Floyd, many wondered how much governments pay out for police misconduct. Reporters from across the country asked me this question. I told them that nationally there is no database on this, nor is there one in Minnesota or any state. In previous research, I made some estimates that the amount was in the billions. I decided to construct a database for Minnesota and did this with the help of some students.

We surveyed all cities in Minnesota with populations of 5,000 or more; all 87 counties; and the State Patrol, Metro Transit, and the University of Minnesota Police. This produced an effective coverage of 98%-100% of the population of the state. Requests were sent to 239 governmental units asking for a list of all instances of police misconduct resulting in payouts from January 1, 2010, to December 31, 2020. Results were obtained from all 239 surveyed.

Here is a summary of what we learned:

• Nearly 30% of all governmental units made some form of payout.
• There were 490 incidents that resulted in payouts.
• The estimated total payout is $60,784,822.
• The estimated total payment for Minneapolis is $36,535,708.10.
• Minneapolis accounted for 60.1% of total payouts in the state.

For the entire state, the mean or average payout per incident was $124,500. For Minneapolis alone, the mean or average payout was $212,416. The mean or average for the rest of the state excluding Minneapolis was $76,255.

In Minneapolis, the median payout is between $26,282 and $28,010. For the rest of the state, it is $6,500. The overall median payout was $12,000.

WT: What else do we know about the incidents that resulted in payouts?

DS: My report asked for information about instances resulting in payouts, and they included use of force, property damage, improper and improper use of data, among other instances. However, the largest category was unspecified. We simply do not know or have sufficient data to tell us whether race or other factors were involved in an incident.

We need mandated statewide collection and standardization of data about police misconduct if we are going to seriously think about any policy change when it comes to policing.

WT: How does your report connect to the DOJ's findings?

DS: First, the DOJ report is only about Minneapolis. My report is statewide. Two, my report covers all instances of police misconduct which resulted in payouts. Third, the DOJ report gathers its own statistics to analyze, while my report is based on an analysis of self-reported data from governmental agencies. Fourth, the DOJ was able to discuss and examine race issues in Minneapolis. My statewide report lacked the data to do that.

Another way to view how the reports interact is in the focus on Minneapolis. The two reports look at different time frames but reach parallel conclusions on issues such as payouts for misconduct. But what jumps out is that the total instances of misconduct in Minneapolis and statewide may be higher than thought.

WT: Given the DOJ's findings, has Minneapolis paid about what you would expect to resolve police misconduct claims?

DS: I think Minneapolis has probably paid far less than it should. The DOJ report indicates thousands if not hundreds of potential situations where excessive or inappropriate force was used, or individuals were stopped in violation of their constitutional rights. Yet there were only 172 payouts reported for Minneapolis over the 10-year period I looked at.

If the DOJ report is accurate, there could have possibly been hundreds of other instances that should have resulted in payouts. Why the underreporting?

WT: Why do you think those other incidents did not result in payouts?

DS: What I discuss in my report is that in Minneapolis, and perhaps across the state and nationally, those who receive payouts are perhaps only a small fraction of those whose rights have been abused. For many, they do not know their rights were violated or they do not have the resources, such as an attorney, to mount the legal challenges to sue or negotiate compensation. Perhaps some fear retribution or perhaps some are not sympathetic plaintiffs who are in a position to fight for their rights.

While in general police do a good job under difficult situations, the scope of police misconduct outlined in the DOJ report suggests the cost of this misconduct in terms of violations of constitutional rights may be greater than I estimated. Finally, I have spoken to other researchers gathering information suggesting the cost to victims in terms of medical bills, psychological damage, etc., may also suggest victims have been undercompensated.

Notes

1 https://bit.ly/437oFGE

2 https://bit.ly/44dwVFM

3https://bit.ly/435WCXU

By Josh Numainville

The US Senate Filibuster: It does not Produce Compromise, It Does not Protect Minority Rights

 

The debate over repealing the US Senate filibuster is reaching a partisan fever pitch.  Democrats are

worried that after passing the $1.9 trillion stimulus legislation on a straight party-line vote by using the reconciliation bill exception they will not be able to move their agenda unless the filibuster is repealed.  Republicans including Mitch McConnell vows “scorched Earth” if repealed, along with a   warning that of Democrats do this they will regret it in the future.

            Central to the argument for preserving the filibuster are two assertions.  One is that it is needed to protect minority rights.  Two, the filibuster encourages compromise.  The reality is, neither of these claims are true and in fact its repeal may promote both goals better than retaining it.

            The filibuster rule is a product of slavery politics, as was true of the electoral college.  If the electoral college’s goal was to protect the slave states from being outvoted in presidential selection by the free states, purpose of the filibuster was to do the same.  The Senate with its equal representation already gave the South a bonus in representation.  But what the filibuster did was to allow one senator the effective ability to shut down the action of the chamber to prevent it from passing legislation hostile to the South.  John C. Calhoun, a Senator from South Carolina in the antebellum South, used the tool effectively to block critical legislation.  But he is also famous for his role in the nullification crisis where he asserted states had a right to veto or nullify federal legislation.  His book A Disquisition on Government, advocated a theory of concurrent majority which would only permit legislation to pass if all classes, interests, groups, or states which had an interest in it supported it.  Effectively, the filibuster went hand-in-hand with his theory of government to support states’ rights and protect a slave holding minority against majority rule.

            Throughout history the filibuster has more often than not been used to oppose legitimate rights than support it.  It was used to oppose civil rights legislation in the 1950s and 1960s.  While American liberal democracy is supposed to protect minority rights, it is also premised on majority rule and respect for letting the legislative process facilitate social and political change and not inhibit it.

            Arguably the filibuster might have made sense a half century ago when American politics, parties, and studies show Congress were less ideological and partisan than it is now.  Back then the non-ideological or coalitional nature of parties meant far less straight party line votes in Congress.  But all that has changed, and Congress is far more polarized now than before.  We know that the filibuster’s use has increased over time.  Evidence over a 50-year period reveals a hardening of partisanship in Congress The attached graph from US Senate data details the increase use of cloture (the tool to close filibusters) over time.  It demonstrates a clear pattern of increased use of the filibuster over time.

 

The filibuster has facilitated that.  One the filibuster encourages is not negotiation and compromise, but winner-take-all politics.  Its presence allows one senator or a minority to veto legislation instead of encouraging cooperation.  If the filibuster were repealed, dissenting senators would have more of an incentive to participate in forming the bill as opposed to being holdout and shutting down any action.

Moreover, if the filibuster were a tool encouraging compromise, 50 years of data would not produce data demonstrating the increased use of cloture over time.  A long-term trend of polarization should produce either no increase in its use, or alternatively its threatened use should reveal evidence of adopted bipartisan legislation over time.  In fact, the longer trend over the last 50 years reveals a steady decrease in the number of bills passed. 

From a statistical point of view, there is a connection between the numbers of bills passed and votes on cloture.   Correlating the two statistically, there is a strong negative -.66 relationship.  This means as the use of the filibuster has increased, the number of bills passed has decreased.  This is not  proof that the use of the filibuster has caused  a decrease in the number of bills passed, but it is powerful evidence in that direction.

 

 

 

 

Thus, the filibuster does not produce compromise and it does not encourage legislating.  Instead, what it has done is weaken Congress, making it a far less effective body than it once was.  This has produced two phenomena.  One, it has empowered by the President and the Supreme Court.  It has done that by forcing the president to govern by executive order and bypass Congress when it can.  It has also put the Supreme Court and the federal judiciary into a role of resolving disputes that it should best be addressed by the political process.  It thus also makes judicial confirmations far more important than they should be.

The second problem is that the filibuster precludes the type of negotiations that are needed to update and correct legislation.  There are a litany of laws, ranging from health care, elections, tax policy, labor relations, communications, and infrastructure that need fixes or updates.  The filibuster permits a minority or perhaps even a special interest to thwart needed policy change, thereby freezing innovation and necessary legislation for the public good.

            The filibuster never was good for American democracy and it is even worse now.  The supposed reasons for its continuance are merely myths that fail to sustain its existence, and which instead perpetuate or exacerbate political dysfunctionalism.

George Floyd and the Final Fracturing of the Democratic Party, Labor, and Civil Rights Coalition

            George Floyd being killed by a police officer in Minneapolis is not simply about the death of one Black man. His death also killed  an historic but uneasy alliance among the Democratic Party, labor unions, and the civil rights movement.  The reaction to his death is ending the last vestiges of the historic New Deal coalition that defined progressive politics in American for at least 50 years, ushering in an era where it now appears that the Democratic Party and the civil rights community are at odds with labor and unions.

            Historically, the New Deal coalition from the 1930s that defined the Democratic Party was composed of labor unions, farmers, working class, and increasing people of color.  It was a coalitional party weaving together a variety of interests, primarily focused on economic and class issues. From the 1930s to 1960s it fought mostly for minimum wages, workplace safety, and collective bargaining issues.  The coalition produced significant gains improving the economic lot of its members and Americans in general, helping shrink, as Thomas Piketty noted, the rich-poor gap in America.  This was the Old Left–class and economic focused.

            Yet a valid criticism of this progressivism was the blind eye it cast on race.  Many New Deal programs such as minimum wage laws excluded southern Black sharecroppers, or unions were criticized for excluding Blacks.  The Democratic Party in the South, which dominated that region from the Civil War to the 1960s, was notorious for the White Primary Supreme Court cases where the former fought hard to exclude Blacks.

            Yet many labor leaders, including Walter Reuther, president of the United Auto Workers, and A. Philip Randolph, who led an AFL-CIO member union, were there in 1963 with Martin Luther King, Jr at the historic march on Washington, D.C.  With labor’s support, the civil rights movement produced the 1964 Civil Rights Act, the 1965 Voting Rights Act, and other major legislation.

            But this embracing of civil rights also fragmented the Democratic Party and progressive politics.  Democrats, as President Johnson foretold when signing the 1964 Civil Rights Act, would lose the South and they did.  First Barry Goldwater,  then George Wallace, and finally Richard Nixon exploited white racial anxieties regarding the civil rights movement the summer 1967 riots.  Nixon profited from this backlash, producing what the Edsalls called a chain reaction that led to the exit of white working-class America out of the Democratic Party.  Ronald Reagan continued to exploit the race card, and the adoption of civil rights, or identity politics to its critics, by the Democratic Party at the exclusion of class further contributed to the split among the Democratic Party, labor, and the civil rights community.  The emergence of the New Left in the 1960s—focused on racial, gender, and LGBTQ  issues—is often seen as a critical facture point.

            Progressive Democratic Party politics succeeded when it held together labor unions and civil rights.  In Minnesota, the birth of the modern Democratic Party came in 1944 when Hubert Humphrey among others brought the Democratic ad Farmer-Labor parties together.  Together the DFL advanced, especially in Minneapolis, a progressive economic agenda but it did  not put as much emphasis on race, not surprising for a state and city overwhelmingly White until recently.  The DFL often gave lip service to civil rights issues, but Minnesota is a state  with among the worst racial disparities in the nation for education, economics, and criminal justice.  But with a rapidly diversifying population and a growing Black population,  Minnesota but especially Minneapolis was changing.

           Minneapolis became the picture of contemporary Democratic Party politics today.  It is socially liberal, headed by a Millennial Democratic mayor and a 12-person city council, 11 of whom are Democrats one a Green.  But the DFL of Minneapolis and Minnesota is not the party it was.  Farmers have left for the Republican Party, and even before Floyd’s death  in many parts of the state labor too has left.  For those who are white, well-educated, and at least middle class, it is a wonderful place to live.  But despite the progressive rhetoric,  Minneapolis was a tale of two cities, with the one for the poor and people of color not so wonderful.

Floyd’s alleged murder by a white Minneapolis police officer turned the city into the center of the “defund the police,” with nine of its councilmembers supporting this proposal.  Floyd’s death is about the hypocrisy on race in America, even with Democrats. But equally fascinating is how a Democratic Party city is going after the police union whom it blames for a history of officer shootings and use of excessive force against African-Americans.  Minneapolis’ police chief announced he would no longer negotiate with the union.  Minnesota’s Democratic Governor also locates much of the blame with the union.  Former Minneapolis Mayor RT Rybek sees the union as an obstacle to reform, and even other labor unions, such as the AFL-CIO are calling for the current head of the police union to resign.   In Minneapolis and across the country police unions are seen by members of the civil rights community as hostile to civil rights reform.

               George Floyd’s death is perhaps the final fracturing of the Democratic Party,  labor, and the civil rights supporters.    Maybe this split needed to happen.  But as it does it bodes a dramatic turn in  party politics that complicates the electoral map for Democrats and progressive politics going forward.  Smart politicians such as Donald Trump see this opportunity and will surely exploit it in the 2020 election.

Civil Rights in a Trump Era: Why Telescope Media Should Not Win In Minnesota

The latest battle line for LGBTQ rights in Minnesota is over wedding pictures and movies and it is

being fought between Telescope Media Group and the State Human Rights Department  Telescope is a business claiming a First Amendment free speech or free exercise of religion in its refusal to serve same-sex couples.  Telescope should lose because no business has a First Amendment right to discriminate against individuals.  Freedom of speech and religion grant you as an individual a right to believe what you want, but it does not give a business a right to discriminate.
Recently owners of the Telescope Media Group did an op-ed in the Star Tribune telling their story as a Christian-based business wanting to tell stories about traditional marriages between one man and one woman.  They claim that the Human Rights Department is forcing them to also promote  same-sex marriages, drawing an analogy to a government which would have told Alfred Hitchcock to make musicals and not suspense stories.  This analogy is inapt.  But to understand why, one needs to be clear about the structure of the First Amendment and civil rights law.
First remember that the First Amendment originally applied and only limited the federal government but over time it too now limits state and local governments.  What does this mean?  The First Amendment is a limit on the government–the government may not abridge or limit freedom of speech or religion.  Private individuals and businesses are free to do what they want.  If you choose in your private life–as too many people do–to only associate with those who think the same way as you or who hold the same beliefs as you–that is your right.  No government in the US can tell you who you can invite to your house or tell what books to read or websites to visit.  Conversely, private businesses can do what they want.  The First Amendment does not apply to Facebook, a private business.  It can censor whatever it wants and it is free to do so because it is a private business and the government cannot tell it what content to carry.  In addition, your private employer can fire you because  it does not endorse or support your political views.  Private schools and colleges can impose speech codes. Overall, we are free to think or believe  what we want, including in our artistic expression, and private entities have a similar right.
Second, until the passage of the 1964 Civil Rights Act private businesses were allowed to discriminate in whom they employed or served.  Yes the Fourteenth Amendment Equal Protection clause prohibited discrimination, but again it only applied to the government.  The 1964 Civil Rights Act made it illegal for businesses engaged in interstate commerce (the term actually used is “public accommodations” to discriminate in their employment and customer service policies.  The Act was upheld as constitutional by the US Supreme Court and its constitutionality validity is not in doubt.
Yet the 1964 Civil Rights Act has three important exemptions for our purposes here. First,  there is an artistic exemption.  By that, the law says that if in filming a movie about racial discrimination it wanted to employ white only actors it could do so. This is among a category of exemptions known as a bonifide occupational requirement.   Second, and closely related to BFOQs,  religious organizations receive an exemption too on some matters.  By that, the Catholic Church is allowed to stipulate that in the hiring of a priest he must be Roman Catholic and, for good or bad, he must be a he.  You cannot sue the Church for gender discrimination for refusing to hire a female priest.  Third, the original 1964 Act covers sex discrimination but not discrimination based on sexual preference or identity.  To this day the Act still does not cover this type of discrimination, even though the Minnesota Human Rights Act does prohibit this type of discrimination.
The Supreme Court’s 2015 Obergefell v. Hodges decision legalizing same-sex marriage addressed one form of discrimination which involved government action but it did not address other  issues of civil rights involving businesses.  Absent state laws otherwise prohibiting it, federal law still does not make it illegal to discriminate against members of the LGBTQ community in areas of housing, employment, or customer service.  Soon after Obergefell one saw a rash of “wedding cake” controversies, businesses claiming a religious exemption from having to bake wedding cakes for  same-sex couples.   It also encouraged states like North Carolina to pass bathroom laws targeted against transgender individuals. Telescope Media’s case is a variant of these cases, except adding to it an apparent  artistic creativity or perhaps freedom of association claim.  There are several flaws legally and even ethically with this claim.
Back in the 1980s the Minnesota Jaycees wanted to admit women to their organization in defiance of the national Jaycees which opposed it.  The State of Minnesota sided with the Minnesota chapter, invoking the State Human Rights Amendment which banned se discrimination.  The national Jaycees argued that forcing them to accept women would violate their right to freedom of association and expression.  In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme  Court rejected that claim and upheld the Minnesota Human Rights Law.  This case alone ought to settle the dispute here, but for Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000).  In Dale  a closely divided Supreme Court permitted the Scouts to ban gays from their organization by arguing that the Scouts had a protected expressive message against homosexuality that was core to the identity of their organization and that to then allow for a gay scout master would force it to endorse a message it did not support.  The logic of Dale is what is also behind Hobby Lobby and its refusal  to provide birth control coverage to women, and it is a similar logic behind Telescope Media’s arguments.
Some careful distinctions must be made.  There is a difference between artistic expression and conducting a business that serves the public.  Telescope Media is trying to hide its discrimination  behind the former.  If it wants to make bigoted anti-same sex marriage movies it may do so. No one can or should tell them they have to do that.  But if they are operating a business they do not have a right to refuse to serve someone based on their gender preference or orientation.  Allowing a private business to invoke religious or artistic expression as an exemption to anti-discrimination law is not about being politically correct, it is about promoting a fair and just society.  It is creating a level playing field for all.  Telescope Media’s arguments taken to their logical terminus allows them a free pass  to discriminate against serving mixed racial or mixed religious couples (Perhaps in their view Jesus  would have opposed a Catholic marrying a Jew).
Moreover, reliance on Dale is not good.  First, Dale is a much disputed legal precedent that some equate to the same anti-gay animus found in the 1986 Bowers v Hardwick decision which declared consensual adult same-sex sexual activity as not protected under a right to privacy.  That decision was repudiated and overtured in the 2003 Lawrence v. Texas.  Additionally, Dale seemed to blur the line between religious (churches or temples) and non-church entities. Many already think  that religious organizations are given too much freedom to discriminate in ways that violate the Establishment Clause.  Allowing Telescope Media to prevail opens up a bad precedent in simply letting any business to invoke a religious claim as a way around anti-discrimination law.  This is what the flaw in the Hobby Lobby decision was, and the viability of that precedent too is questionable.
The concern of course in a political and legal world defined by a Trump presidency Telescope Media might prevail.  It could but should not.  The current anti-discrimination law is well grounded and would not be easily dismantled or overturned.  But the fact that this is even entertained is a product an era that the Trump presidency may be ushering in. One where equal protection under the law are viewed is as political correctness and not as w hat is demanded in a society that respects fairness, justice, and  civility.   People legitimately voted for Trump for many reasons that should be respected.  But what one hopes is that it was not an endorsement for a return to bigoted behavior  where people felt like they can say the must hurtful things they wanted to one another, or that businesses can hide their prejudice by invoking claims of artistic or religious expression.

Mall of America v Black Lives Matter: The Difference Between Civil Rights and Free Speech Laws

The Mall of America (MOA) is private property.  So are the other shopping malls in Minnesota.  One may not agree with that legal fact but that is the law in this state.  This means that owners of shopping malls have a right to deny the public access to their property for the purposes of exercising free speech rights but that does not mean they can deny them access on the basis of race.  This distinction seems to be lost in the dispute regarding the trespass prosecution in the “Black Lives Matter” case.  A basic understanding of federal and state constitutional and civil rights law clarifies this issue.
There is no debate that subject to some time, place, and matter restrictions, the public enjoys broad First Amendment expressive rights on public property.  In the proverbial town square the public has a right to criticize the government or make any other political statements it wishes.  The Fourteenth Amendment’s Equal Protection clause guarantees that this right cannot be denied on account of race.
But shopping malls are not town squares.  In Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), the US Supreme Court ruled that there is no First Amendment right to distribute handbills or express political messages in shopping malls.  Malls are private property and the owners may exclude or prevent the public from distributing or expressing their political views their.  However in  Pruneyard Shopping Center v. Robins 447 U.S.  74 (1980) the Supreme Court also recognized that while there is no federal First Amendment right of the public to use malls for political purposes, state constitutions may afford such a right.  That is the case in California.  In New Jersey its Supreme Court in New Jersey Coalition Against War in the Middle East v. J.M.B Realty Corporation, 138 N.J. 326 (1994) ruled that shopping malls had become the “functional equivalent of downtown business districts” and therefore  owners could not interfere with reasonable expression of free speech rights as protected by the state constitution.
The Minnesota Supreme Court did not follow New Jersey when it ruled in State v. Wicklund 589 N.W.2d 793 (1999) that the state constitution did not guarantee the free speech rights of the public at MOA.  It rejected claims that extensive government involvement in the planning and financing  of the MOA made it a public entity and it turned back arguments that the mere holding open of private property to the public for any purpose make it public property.  The Court also rejected the functional equivalent argument of the New Jersey Supreme Court.  The Court may have gotten it wrong then and perhaps conditions in the last 16 years have undermined the validity of that precedent making a new challenge ripe.  But as of last year, Wicklund is still the law.  No one, regardless of race, has free speech rights at MOA.
But just because MOA can limit the public from exercising its free speech rights, it may not exclude individuals on account of race and gender.  The 1964 Civil Rights Act is clear on this matter.  MOA is a public accommodation under federal law and case such as Heart of Atlanta Hotel v. United States, 379 U.S. 241 (1964) are clear that businesses and establishments may not discriminate on account of race.  In Roberts v United States Jaycees, 468 U.S. 609 (1984) the U.S. Supreme Court ruled that even under Minnesota’s anti-discrimination law, many clubs and associations would be barred from banning individuals based on gender and race.  Federal and State law is clear–if the MOA were to decide to ban individuals from their premises based on race they would be acting illegally.
There is thus a difference between federal and state anti-discrimination and free speech law.  This is important because it does not appear that MOA barred Black Lives Matter from protesting because of their race.  If they did then shame on MOA and they ought to be sued for civil rights violations.  Instead, they barred the group because current law did not give Black Lives Matter a right to free speech at MOA.  When the group demonstrated there against the wishes of MOA that was trespass under current law.  Whether they should be prosecuted is a different matter.
But what is critical to understand is the purpose of the Black Lives Matter protest at MOA.  Were they protesting against MOA racist policies, against a State Supreme Court ruling liming free speech rights at the mall, or against Ferguson and racism in general?  Again, Federal and State law make it illegal for MOA to discriminate on account of race.  If that is the allegation, then the protest  of MOA’s policies is powerful and ranks along side of Rosa Parks sitting at the front the bus and therefore Black Lives Matters was within its rights to do.  But if the protest were to challenge current state law about the status of the MOA as a private entity that can restrict free speech rights (such as to protest Ferguson), then this is not an issue really about race but about expressive freedom.  This  is an entirely different issue that really is not about race and unfortunately current law does not support Black Lives Matter.
The Black Lives Matter protest at MOA entwines and confuses issues of race and speech.  Whether we like it or not the law treats civil rights and expressive freedom differently.  Understanding how the law differentiates between the two, along with clarifying the motives and goals of both MOA and Black Lives Matters, is critical to understanding the difficult questions in this case.

From Selma to Stonewall: Same-Sex Marriage and the Legacy of Martin Luther King, Jr.

            By now it seems inevitable if not entirely predictable that by July this year same-sex marriage will be the law of the land in the United States.  Many will applaud that it is now legal across America and that the battle for equality is over.  Yet for all who draw the parallel between the battle for GLBT rights and civil rights, one can only hope that it does not end the same way, a war half won and facing serious backlash to this day in the South and across white America.

            On Friday the Supreme Court announced that it will review a Sixth Circuit Court of Appeals decision which had upheld a ban a same-sex marriage.  It accepted the case because other circuits had ruled contrary, creating a split in the law that the Supreme Court has to resolve.  This is the political science-law professor answer to why the case will be heard. The US is also a country divided, with 36 states and 70% of the population living in a world where same-sex marriage is legal, and where there is no definitive answer to whether the Constitution protects the right of same-sex couples to marry.  Federalism may be great for many things, but some constitutional questions demand definitive answers.

            While the Supreme Court has avoided it so far, the question before it will be whether the Constitution protects the right of same-sex couples to marry.  Justice Kennedy will write a 5-4 opinion saying that it does (unless Chief Justice Roberts joins in to make it 6-3 so he can control the scope of the majority opinion), capping a career where he has written all the major opinions (Romer, Lawrence, and Windsor) affirming GLBT rights.  Four years ago at a Supreme Court continuing legal education class I did at Reuters I predicted that Kennedy would write a June 5-4 opinion declaring that the Constitution protects same-sex marriage, and then he would announce his retirement.  I still think that will occur this year.  It is unlikely, contrary to what some social conservatives hope, that the Court will declare same-sex marriage contrary to the Constitution or that it will author any opinion invalidating same-sex marriages in any place in the United States.  Nor is it likely that the Court will simply say that the Constitution is silent on the issue and leave it to the states to decide.

            So then what?  Is the battle over?  For Republicans the decision would be great. As with immigration, letting someone else resolve a divisive issue upon which you are on the losing side of history and which costs you votes and future party vitality would be a blessing.  Making same-sex marriage legal across the country takes the issue off the electoral agenda.  But  that is not the end of the story. 

            The movie Selma is a powerful reminder of how far and not this country has come regarding civil rights for African-Americans.  The reason that movie is so powerful is not simply because of its reenacted and reminder of the violence that occurred at the Edmund Pettus Bridge and elsewhere in South and across the country during the 50s and 60s as King and others fought for equality.  It is also a powerful reminder, especially in light of Michael Brown and Eric Garner, that the struggle and the violence persists. A half a century after Selma racial discrimination persists.  It exists in school outcomes and incarcerations.  It exists in racial profiling,  income and wealth disparities, and in general attitudes about race, especially and still in the South.

            Many have drawn parallels between the civil rights movement for racial equality and the battle for GLBT rights.  Blacks had Selma, gays and lesbians Stonewall in New York.  Many draw parallels in the legal strategies between Thurgood Marshall, NAACP, and the Lamda and Human Rights campaigns.  Loving v. Virginia (where the Supreme Court struck down laws banning racially mixed marriages) is the direct precedent invalidating bans on same-sex marriage. There are similarities, but let us hope there are differences.  Fifty years later racism remains entrenched in America, especially in the South.  It is no coincidence that the core of the states today that oppose same-sex marriage are the same that fought Black civil rights the hardest, and where discrimination is still ugly.  These are also the states where reproductive rights are still  most fiercely opposed 40 years after Roe v. Wade, and where workers rights are weakest.

            The point is that passage of a law or the issuance of a Supreme Court decision does not end the battle.  Despite Selma, the 1964 Civil Rights Act, and the 1965 Voting Rights Act, much work needs to be done to bring racial equality to America.  The same will be true come later this year when Justice Kennedy writes his 5-4 opinion.  This is what we need to remember as we celebrate Martin Luther King’s birthday.