Daily Archives: November 1, 2019

Ilana Gomez, CLS ’21

The legacy of the 1985 class-action lawsuit, Flores v. Reno, promulgated the Flores Settlement Agreement (“Flores Settlement”) and began a nationwide conversation on the ethical standards of processing undocumented minors separated from their parents and families. The agreement, which has proved a contentious crux for Trump’s zero-tolerance policy, essentially ordered the government to detain children in the “least restrictive” settings, create and implement appropriate standards of care of detained children, and release children “without unnecessary delay” to specific individuals listed in the agreement.

Many U.S. detention centers have failed to meet the Flores standards, and some have allegedly provided psychotropic medication without appropriate authorization.[1] In 2018, the Center of Human Rights and Constitutional Law (CHRCL) filed a class action lawsuit, Flores v. Sessions, against a Texas facility in Manvel, Texas, alleging that the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) unlawfully administered  psychotropic drugs to detained children without appropriate consent.[2] On one occasion, ORR staff threw a child to the ground and forcibly opened his mouth, while another complaint detailed coercive practices where children were threatened to take medication.[3] Such threats included telling the children that the only way they could leave the center was if they took the medication.[4] This treatment violates the Flores Settlement’s requirement where ORR facilities must “comply with all applicable state child welfare laws and regulations,” and only provide children with “appropriate mental health interventions when necessary.”[5]

In July 2018, U.S. District Judge Dolly Gee ordered in Flores v. Sessions, that Texas state child welfare laws and regulations govern the administration of any psychotropic medication to children at the Texas detention center in question.[6] Therefore, legally authorized persons defined in the Texas Administrative Code, Texas Family Code, or a court, must disclose any administration of psychotropic medication to detained children. In an emergency situation, however, the detention center could administer medication if it is immediately necessary to provide medical care in order to prevent the imminent probability of death or substantial bodily harm to the child or others.[7]

This recent decision, while a step in the right direction, might be insufficient for the protection of detained children’s consent rights considering the varying state child welfare laws and regulations defining informed consent. In Arizona, for example, an ORR Director or a licensed physician can medically authorize psychotropic medication to detained children.[8] The ORR also has a policy that if a state law requires informed consent from a parent – and it is not possible or timely to retrieve it due to the inability to locate the parent – then the ORR may direct a facility to seek a court order authorizing the medication.[9] It is clear that child welfare laws were drafted without undocumented and parentless children in mind, and therefore appropriate policy specific to the needs of migrant families separated at the border is both necessary and urgent.

[1] Scott J. Schweikart, April 2018 Flores Settlement Suit Challenges Unlawful Administration of Psychotropic Medication to Immigrant Children, 21 AMA Journal of Ethics 67, 67-68 (2018).

[2] Flores v Sessions, No. CV 85-4544 DMG (AGRx), 20-21 (C.D. Cal. Nov. 5, 2018).

[3] Samantha Schmidt, S. Trump Administration Must Stop Giving Psychotropic Drugs to Migrant Children Without Consent, Judge Rules, Washington Post (July 31, 2018) https://www.washingtonpost.com/news/morning-mix/wp/2018/07/31/trump-administration-must-seek-consent-before-giving-drugs-to-migrant-children-judge-rules/

[4] Id.

[5] U.S. Department of Health & Human Services, Office of Refugee Resettlement, Children Entering the United States Unaccompanied: Section 3. (2015)

[6] Flores v Sessions, No. CV 85-4544 DMG (AGRx), 23-24 (C.D. Cal. Nov. 5, 2018).

[7] Id. at 23.

[8] U.S. Department of Health and Human Services, Office of Inspector General,

Care Provider Facilities Described Challenges Addressing Mental Health Needs of Children in HHS Custody (2019).

[9] Id.

Valerie Achille, CLS ’21

On September 30, 2018, then-Governor of California Jerry Brown signed into law SB 826,  making California the first state to mandate the inclusion of female directors on corporate boards.^[1] By the end of 2019, all publicly traded companies must have a minimum of one female director on their board.^[2] By 2021, boards with five directors must have at least two female directors and boards with six directors must have at least three female directors.^[3] Corporations that fail to comply with the new requirements can be fined $100,000 for a first-time violation and then $300,000 for subsequent violations.^[4]

The purpose of SB 826 is to increase the number of female directors in order to produce equitable gender representation in corporate boards. At the time the bill was introduced, women held only fifteen percent of board seats.^[5] Moreover, a quarter of California’s publicly traded companies did not have any women at all on their boards.^[6]

There have been concerns about the constitutionality of SB 826. On August 6, 2019, Judicial Watch, a conservative activist group, filed a lawsuit in Los Angeles County Superior Court challenging the new law.^[7] In its complaint, Judicial Watch argues that SB 826  is unconstitutional under the California Constitution because it creates a quota system.^[8] Since there is a specific number of women that must be on the board, the plaintiffs argue that the law effectively makes boards discriminate against qualified male candidates. For example, if two qualified candidates (one male and one female) apply and the board has not met its requirement for female directors, the board would be required to choose the female candidate solely based on her gender.^[9]

With this constitutional challenge on the horizon, proponents of SB 826 must overcome an additional obstacle. The California Assembly Committee on Judiciary determined that in order to defend the constitutionality of this bill, the defenders of the bill would need to show specific evidence of discriminatory behavior; citing statistics that women are grossly underrepresented on corporate boards alone would not be sufficient.^[10]

The short-term effects of SB 826 demonstrate that the law merits preservation. The new law has led to real change in the demographics of company boards. As of July 2019, all S&P 500 companies have at least one female director on their board of directors.^[11] The number of Russell 3000 companies with all-male boards has decreased from 500 to 376 companies.^[12]

Despite its good intentions and good results, SB 826 may not be able to withstand these constitutional challenges. The new law reveals the difficulty for states to make significant impact in gender representation while remaining within the parameters of the Constitution.

^[1] Patrick McGreevy. Gov. Jerry Brown Signs Bill Requiring California Corporate Boards to Include Women. Los Angeles Times, (Sept. 30, 2018) www.latimes.com/politics/la-pol-ca-governor-women-corporate-boards-20180930-story.html.

^[2] Associated Press. Lawsuit Challenges California Law Requiring Women on Boards A Conservative Activist Group Is Challenging California’s First-in-the-Nation Law Requiring Publicly Held Companies to Put Women on Their Boards of Directors. US NEWS, (Aug. 9, 2019) www.usnews.com/news/best-states/california/articles/2019-08-09/lawsuit-challenges-california-law-requiring-women-on-boards.

^[3] Id.

^[4] Patrick McGreevy. Gov. Jerry Brown Signs Bill Requiring California Corporate Boards to Include Women. Los Angeles Times, (Sept. 30, 2018) www.latimes.com/politics/la-pol-ca-governor-women-corporate-boards-20180930-story.html.

^[5] Governor Signs Jackson Bill to Make California the First State to Require Women on Corporate Boards. Senator Hannah-Beth Jackson- Representing Senate District 19, (Oct. 2, 2018) sd19.senate.ca.gov/news/2018-10-01-governor-signs-jackson-bill-make-california-first state-require-women-corporate.

^[6] Ibid.

 ^[7] Judicial Watch. Judicial Watch Sues California Over Gender Quota Mandate for Corporate Boards. Los Judicial Watch. (Aug. 9, 2019) www.judicialwatch.org/press-releases/judicial-watch-sues-california-over-gender-quota-mandate-for-corporate-boards/.

^[8] Ibid.

^[9] Maj Veseghi & Sarah Ray, Bill to Impose Gender Quotas in Boardrooms Reflects Larger Trend, Daily Journal (Sep. 11, 2018) https://www.lw.com/thoughtLeadership/bill-to-impose-gender-quotas-in-boardrooms-reflects-larger-trend-daily-journal

^[10] Assembly Judiciary Committee Staff Report, at 6.

^[11] Lawsuit Challenges Constitutionality of California Law Mandating Women on Public Company Boards. O’Melveny, (Aug. 14, 2019) www.omm.com/resources/alerts-and-publications/alerts/lawsuit-challenges-constitutionality-of-california-law-mandating-women-on-public-company-boards/.

^[12] Id.

Andrew Sun, CLS ’21

            After gerrymandering reform efforts met disappointment at the Supreme Court in Rucho v. Common Cause, which held that federal courts did not have enough guidance by the federal Constitution to handle gerrymandering challenges, a glimmer of hope came from a North Carolina state court.^[1] A three-judge panel sitting in Wake County, North Carolina ruled unanimously in Common Cause v. Lewis that North Carolina’s Constitution provided sufficient guidance in a gerrymandering challenge and held that state legislative maps were unlawful as against the North Carolina Constitution’s free election, equal protection, freedom of speech, and freedom of assembly clauses.^[2] This decision has the potential to serve as a guide for litigants and judges in other states to formulate the legal arguments against gerrymandered state legislative maps, especially in a time when federal courts have shuttered their doors to these challenges.^[3]

The specific remedies that the court ordered and the lessons of the decision’s aftermath may also prove to be particularly instructive to litigants and courts in other states seeking to remedy gerrymandered maps.  Below are the remedies discussed in the remainder of the article, although additional remedies were included in the decision.^[4]

• Timeline: The court required the legislature to create new maps within two weeks of the decision and also retained the authority to change scheduled election dates if doing so should become necessary to provide proper relief.^[5] The new maps must then be approved by a court appointed expert referee from Stanford University.^[6]
• Election data: Partisan considerations, elections results, and other election data cannot be used in the drawing of the new districts, and intentional attempts to favor voters or candidates of one political party is prohibited.^[7]
• Maps used as starting points: The maps invalidated in the case may not be used as a starting point for the new maps.^[8]
• Incumbency protection: Drafters of the remedial maps are allowed to take steps such that incumbents are not pitted against each other in the same district.^[9]
• Public process: The remedial process must be conducted “in full public view,” which, at a minimum, requires all map drawings to occur at public hearings.^[10]

At the time of the writing of this article, the court is reviewing remedial maps passed by both chambers of the North Carolina legislature.^[11] Mitch Kokai, senior political analyst at the John Locke Foundation, says that the maps are likely to be approved by both the expert and the court because of strong bipartisan support.^[12] PlanScore, a nonpartisan group that analyzes maps nationwide, suggested that the new maps are an improvement over their predecessors.^[13]

Yet the redistricting process has not been without controversy. Although the process has taken place with an unprecedented degree of transparency, the method by which the baseline map was chosen and developed upon raised suspicion.^[14] The starting map that the legislature worked from was taken from a set of 1,000 maps simulated by Jowei Chen, a political scientist who served as an expert for the plaintiffs challenging the gerrymandered maps.^[15] These maps were not drawn in public view, as they were created before the trial as trial evidence.^[16] Additionally, during the mapmaking process a private legal team for the GOP shared a link with members of the House of Representatives containing political data for each of Chen’s maps, describing which would be more or less advantageous for GOP candidates.^[17] Although the link was quickly shut down, this email still caused a delay in the mapmaking process due to the uncertainty of whether the process was prejudiced as a result of any lawmaker being exposed to the contents of the link.^[18]

Some have also raised more general arguments against the court’s remedy. One economist has posited that barring the legislature from using partisan considerations and encouraging them to follow county lines is mathematically likely to produce more skewed districts, against the goal of the court.^[19] Others, like Charlotte Senator Jeff Jackson and J. Michael Bitzer, scholar of North Carolina politics at Catawba College, challenge that legislators should not be involved at all in the redrawing process, as they are motivated by their own political interests.^[20] A specific concern is that although partisan considerations are not allowed in the mapmaking process, Republicans can still serve their own political interests through the court’s allowance of incumbency protection, since currently most incumbents are Republican.^[21]

So far, it seems that the court has successfully compelled the legislature to change their maps, but only time will tell as to whether the decision will improve the rights of voters in North Carolina. Either way, those seeking to challenge gerrymandering in other states ought to keep a close watch on how the aftermath of Lewis unfolds.

^[1] 139 S. Ct. 2484, 2507 (2019).

^[2] No. 18 CVS 014001, 2019 N.C. Super. LEXIS 56 (N.C. Super. Ct., Wake County Sept. 3, 2019).

^[3] See Amber Phillips, Why Democrats’ Big Gerrymandering Win in North Carolina Matters, Washington Post (Sept. 4, 2019), https://www.washingtonpost.com/politics/2019/09/04/how-democrats-win-north-carolinas-redistricting-battle-could-reverberate/; see also Ella Nilsen & Tara Golshan, A North Carolina Court Just Threw Out Republicans’ Gerrymandered State Legislature Map, Vox (Sept. 3, 2019), https://www.vox.com/policy-and-politics/2019/9/3/20848087/north-carolina-court-republican-gerrymander-state-legislature-map.

^[4] For a complete description of the court’s remedies, see Lewis, 2019 N.C. Super. LEXIS 56 at *404-420. Other court orders such as compliance with the Voting Rights Act and country grouping requirements have not generated much controversy thus far. As a result, these remedies have been omitted.

^[5] Id. at *413.

^[6] Michael Wines, In North Carolina, New Political Maps Don’t End Old Disputes, N.Y. Times (Sept. 17, 2019), https://www.nytimes.com/2019/09/17/us/north-carolina-gerrymandering.html.

^[7] Lewis, 2019 N.C. Super. LEXIS 56, at *416-17.

^[8] Id. at *417.

^[9] Id. at *416.

^[10] Id. at *418-19.

^[11] Brent Van Vliet, New State Legislative Maps Head to N.C. Superior Court for Approval, Daily Tar Heel (Sept. 23, 2019), https://www.dailytarheel.com/article/2019/09/new-ncga-maps-0923.

^[12] Id.

^[13] Wines, supra note 6.

^[14] Will Doran, Did NC Lawmakers Look at Data Banned by Gerrymandering Ruling on Day 1 of Redraw?, Raleigh News & Observer (Sept. 10, 2019), https://www.newsobserver.com/news/politics-government/article234925852.html.

^[15] Mark Joseph Stern, Instead of Fixing Their Gerrymander, North Carolina Republicans Are Trolling the Court, Slate (Sept. 10, 2019), https://slate.com/news-and-politics/2019/09/north-carolina-republicans-gerrymander-trolling-court.html.

^[16] Id.

^[17] Doran, supra note 14.

^[18] Id.

^[19] See Charles Blahous, Don’t Expect a Revolution from NC Gerrymandering Ruling, E21 (Sept. 13, 2019), https://economics21.org/north-carolina-gerrymandering-ruling-district-maps.

^[20] Will Doran, New Political Maps Pass NC Legislature, Will Be Reviewed by Judges Who Ordered Redraw, Raleigh News & Observer (Sept. 17, 2019), https://www.newsobserver.com/news/politics-government/article235159817.html; Wines, supra note 6.

^[21] Van Vliet, supra note 11; see also Stern, supra note 15.