President’s weekly report — August 22, 2014

Property Rights — Extortion-by-the-Bay

We had a hearing today in Levin v. San Francisco on our challenge to San Francisco’s new scheme to extract huge chunks of cash from rent-controlled landlords who wish to go out of the landlord business.  For example, two of our clients wish to move downstairs to the lower half of their small two-story home.  But because they have a renter on the first floor, the law now requires them to pay the tenant to difference between what the free market charges for similar spaces over a two-year period and what the tenant actually pays under rent control – here a whopping $117,000!  When the Levins first sought to move down to their first floor, the ordinance required that they pay “only” around $9000 for the right, but now, with the retroactive application of the new law, they have no choice; they must pay the tenant the extra windfall, period.

As our blog post notes here, today’s hearing was to determine whether an immediate injunction should issue to stop the law.  While the judge noted that the case was very important, he declined to issue an injunction, instead calling for a quick trial on the Merits in October.

Environment — Federal Retaliation for Daring to Sue Continue reading

Judge expedites trial in PLF’s challenge to San Francisco’s tenant payment ordinance

As reported, PLF Principal Attorney David Breemer went to court this morning in San Francisco for a hearing in Levin v. City and County of San FranciscoThis is the case challenging San Francisco’s new Tenant Relocation Assistance Ordinance.  Under this law, property owners who wish to stop being landlords must pay their tenants the difference between the tenant’s annual rent-controlled rate, and the amount it would cost to rent a comparable apartment at open market rates, and then multiply that amount by two.  For Daniel and Maria Levin, one of the parties in the case, they must pay their single tenant over $117,000 in order to withdraw the lower half of their duplex from the rental market so they can use that space for their own family.  Because of the massive amount of financial liability at stake for the Levins, and the several other property owners whom PLF attorneys represent, Mr. Breemer asked the court for a temporary restraining order (TRO) and preliminary injunction to halt the City’s enforcement of the law during the duration of the lawsuit.  While Judge Charles Breyer denied the TRO, he postponed making a decision on the preliminary injunction until the trial, for which he set an expedited date because of the case’s importance, and the law’s immediate and troubling impacts.  “By setting an early date for a trial on our lawsuit,” said Mr. Breemer, “the judge recognized that important legal questions are at stake.  We agree, because San Francisco is shaking down rental-property owners for outrageous sums of money, in flagrant violation of the Constitution’s protection for property rights.”  The trial will begin on October 6.

The Endangered Species Act — a law without limits

The Endangered Species Act (ESA) empowers the federal government to set aside public and private land for the protection of endangered species. Congress inserted a provision in the Act that limits this set aside to “essential” habitat, known as “critical habitat,” and mandates that the government rely only on the best available data and take into consideration the economic impact of designating “critical habitat.” Under the Act, any area may be excluded from “critical habitat” if the impact on the landowner outweighs the benefit to the species. In theory, this provision was expected to protect landowners from overzealous regulation. But it hasn’t worked out that way.

Since the ESA was passed in 1973, federal regulators have expanded their power so much that the U.S. Fish and Wildlife Service has become a defacto zoning board dictating local land and water use across the Nation. The most blatant example of this overreach is the designation of “critical habitat” for the dusky gopher frog that includes more than 1500 acres of private land in St. Tammany Parish, Louisiana, that the Agency admits is currently unoccupied, unsuitable, and inaccessible to the species. In other words, the Agency designated nonhabitat as “critical habitat” subject to pervasive federal regulation. By the Agency’s own estimation, restrictions on the use of the property could cost the landowners as much as $34,000,000. Although this nonhabitat currently provides no benefit to the gopher frog, and may never do so, the Agency perversely determined that the benefits to the species outweighed the impact on the landowners. It is hard to imagine a more irrational decision.

When PLF challenged the designation of this nonhabitat area as “critical habitat” in federal court, the Fish and Wildlife Service argued that it had complete discretion to determine which areas are included as “critical habitat” and that the court had no power to question the agency decision whatever the impact! In effect, the agency claims it has unlimited regulatory authority under the Endangered Species Act which the courts have no power to review.

Today, a federal judge “reluctantly” agreed with this argument and upheld the designation of this unsuitable area as “crictical habitat.” The judge acknowledged the ESA appears to go too far but suggested that is a matter for Congress to address and not the courts. We disagree.  The Courts have the duty to hold the line on runaway government.  PLF will appeal this case to the Fifth Circuit.

A Back to School Choice Week 2014 roundup

A big thank you to all who helped get the message out about school choice this week.  A number of you shared our blog posts, listened to the podcast, and kept up with us on Facebook.  As I said at the beginning of this week, PLF is committed to giving all parents and students a meaningful choice in education.  In case you missed anything, here’s a quick round-up of everything we did to celebrate Back to School Choice Week 2014. Continue reading

School vouchers: a valuable tool for desegregation

court’s ruling this week that North Carolina’s school voucher program is unconstitutional is unfortunate, given that the most likely beneficiaries of the program are disadvantaged minority students.  The program aims to provide as much as $4,200 annually for low-income families trying to get their children out of failing public schools and into private schools.

Many who are opposed to school voucher programs don’t seem to realize that vouchers can contribute to desegregation and free low-income students trapped in poor performing schools.  In her book Place Not Race, law professor and civil rights activist Sheryll Cashin writes that 80% of black students and 74% of Latino students nationwide attend majority non-white schools.  Meanwhile, most white students attend a school that is 77% white.  Additionally, 43% of black and Latino students attend schools where more than 80% of students were poor.  Only 4% of white students went to a school defined by poverty.

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Understanding the difference between disparate treatment and disparate impact

There are two types of discrimination recognized by our various civil rights laws: disparate treatment and disparate impact. The former is conscious, intentional discrimination.  The latter is unintentional, and is demonstrated through statistical disparities.  Here on the Liberty Blog we have often posted on various absurd applications of disparate impact theory.  We have also noted how the Obama Administration is trying to inject disparate impact into nearly every facet of American life.  Disparate impact is a pernicious doctrine that forces racial balancing, hurts business, and violates the Equal Protection Clause. Continue reading

Does San Francisco have school choice?

This article in the San Francisco Examiner reminded me of the importance of school choice. The author noted the wide disparity in educational options for rich and poor kids in San Francisco. A related story notes that frustrations are growing for families unable to send their children to neighborhood schools. The unifying theme of these two stories is that middle-class and wealthy families have fled the traditional public school system, and are instead enrolling their children in private schools. When faced with the option of busing their children hours across town or scraping together thousands of dollars to send their children to private schools, families with means are choosing the latter option. In fact, more than 1 in 4 children withdraw from public schools in order to attend private ones. This has produced a divided system where 60 percent of public school students are poor enough for free or reduced-price lunches while those who can afford to leave get out.

Milton Friedman noted that one of the major benefits of school vouchers was that they allowed poor parents the right to attend the same schools as the wealthy or upper middle class. This is important because parents given the option to choose their child’s education are the ones most likely to advocate for and improve local schools. In addition, more parental involvement results in increased academic performance. But according to one of the stories linked above, it is “school choice” that is creating the shortage of good schools, and forcing wealthy parents to opt out of the public school system. Is that really what’s happening?

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The unpleasantly “sizzling” side of solar energy

Fox News reports that federal wildlife officials, as well as the Center for Biological Diversity, want to put a hold on the much ballyhooed Ivanpah Solar Plant in California’s Mojave Desert, owing to a rash of bird deaths.  Apparently, the reflection from the solar panels is so intense that it incinerates birds that fly over or near the panels.  Precisely because of negative wildlife impacts like these, PLF submitted comments last month objecting to EPA’s failure to assess the effects on endangered species of a proposed coal-fired power plant rule that would lead to increased use of wind and solar energy.

Teachers’ union opposes law to help the disabled

union opposes help for disabled Sometimes I fall into the trap of believing that teachers’ unions think they have the best interests of the children when they oppose school choice initiatives, but then I remember that such a belief is a fairy tale.  Teachers’ unions, like other unions, exist to protect the interests of their members: teachers. Their own websites explain that the teachers’ unions serve the teachers’ interests, not the interests of the students.

Case in point: the Florida Education Association and its most recent ill-conceived lawsuit opposing school choice.

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PLF’s Jonathan Wood will be on Georgia and California radio tomorrow discussing school choice

Tomorrow morning, I’ll be joining the Athens Morning News with Martha Zoller and Tim Bryant at 8:35 eastern (5:35 pacific). We’ll be discussing why school choice benefits students, parents, and taxpayers. The program will air on WGAU 1340 in Athens and can be heard online here.

Later tomorrow afternoon, I’ll be on the Andy Caldwell Show. That will air on KUHL AM 1440 in Santa Maria and KZSB AM 1290 in Santa Barbara at 3:30 pacific. You can also listen online here.