School choice empowers parents

As kids across America head back to school it seems like the perfect time for Pacific Legal Foundation to celebrate Back to School Choice Week. The school choice movement has been under way for decades, and some states have made tremendous progress.  But we still have much to do, as nothing is more important for a parent than being able to send your child to the educational institution that will best prepare them for the future. Whether, private, parochial, public or charter, school choice is giving parents that freedom to choose the best education for their children.

As a parent of three school aged children, I have battled my way through the red tape of our traditional public education system.  As I prepare to have my youngest enter the school system, I know that having educational options for my children is critical. Each of my children is different, and different schools have different views about how to educate children.  All of this has led me to know that what is best for one child may not be best for another. Forcing children to go to a neighborhood school is a one-size-fits-all approach that simply doesn’t work.

While school choice is not going to solve all the problems in the American education system, it is an important element that lays the foundation for parents and communities to take an active roll in providing educational options for their communities.  Who can’t support that?

Court to hold hearing on SF’s new tenant payment requirement

On July 24, 2014, Pacific Legal Foundation (PLF) attorneys filed a complaint in federal court on behalf of Daniel and Maria Levin (Levins) and several other plaintiffs challenging San Francisco’s new Tenant Relocation Assistance Ordinance.  The Levins and other property owners want to stop being landlords so they can use their property for non-rental purposes.  The California legislature has guaranteed that property owners indeed have the right to go out of the rental business by passing the Ellis Act in the 1980′s.  But the City of San Francisco recently enacted a law that charges property owners who use the Ellis Act to take property of the rental market outrageous sums of money, sums which go to the owner’s tenants. Continue reading

Back to School Choice Week 2014

For the second consecutive year, PLF is celebrating Back to School Choice Week.  All this week on the Liberty Blog we will be discussing cases that PLF is working on that give parents and students a choice in where and how their child is educated.  School choice has many forms including charter schools, vouchers, and education tax credits.  And PLF is working to support all forms of choice.  For too long, education policy has been dictated by a top-down model, that force kids into government schools for no other reason than address convenience. School choice injects competition into education, which forces schools to compete to attract and retain students.

With this first post celebrating Back to School Choice Week 2014, I thought I would give you an update on the cases we highlighted for Back to School Choice Week 2013. Continue reading

President’s weekly report — August 15, 2014

Equality Under the Law — Government discrimination in contracting

We filed this brief in Midwest Fence v. United States Department of Transportation.  Midwest Fence has been embroiled in litigation defending its right to bid for government contracts in Illinois on the same basis as everyone else.  The owner of Midwest Fence is a Caucasian male, which puts him at a competitive disadvantage because a number of his competitors are owned, at least on paper, by individuals who belong to a favored minority group.  He is losing business despite his otherwise competitive bids and quality of his work.  In a nation that values fairness and which guarantees that no state “deny to any person within its jurisdiction the equal protection of the laws” this is unacceptable.  As explained in more detail in our blog, the federal mandate that requires states to implement “Disadvantaged Business Enterprise” contracting programs is creating an unacceptable bias.

Economic Liberties Project — It’s Time to White-Out State Sponsored Monopolies

Joined by the Cato Institute, we filed this amicus brief in North Carolina Board of Dental Examiners v. FTC. Continue reading

Hearing set for gopher frog challenge

In 2013, on behalf of Markle Interests, LLC, we filed suit against the U.S. Fish and Wildlife Service challenging the agency’s over-board designation of “critical habitat” for the dusky gopher frog in St. Tammany Parish, Louisiana. Among other things, the Service designated over 1500 acres of private land as “critical habitat” that is unoccupied by the gopher frog and unsuitable as habitat. To our knowledge, this is the first time the Service has set aside private property for conservation of a species that is both unusable by and inaccessible to the species. Under the Service’s expansive interpretation of the Endangered Species Act, the agency may regulate any land it believes may someday be useful in conservation or recovery efforts. This interpretation exceeds federal statutory and constitutional authority and suggests that no property is safe from the grasping hands of overzealous bureaucrats bent on federalizing private property.

On Wednesday, August 20, at 10:am, we will argue the case in the U.S. District Court for the Eastern District of Louisiana in New Orleans, LA.

Holding the government accountable: 5-year reviews in the Endangered Species Act


James Madison

Time after time, the federal government refuses to follow the Endangered Species Act (ESA). The government designates land as “critical habitat” despite not meeting the ESA definition for critical habitat. And in another example, the government refuses to remove plants and animals from threatened or endangered status, even when those species are flourishing and no longer in need of ESA protections.

You may ask yourself, how does the government know when a species should be removed from the endangered or threatened list? How does the government know if a species is recovering? The answer can be found in the ESA and its requirement that the federal government reviews all plants or species that are currently listed as endangered or threatened. ESA states that the government must review every plant or animal on the list every five years. In conducting the review, the ESA requires that the government consider the status of each species, including: i) finding how many of the species exist, ii) evaluating whether the species is recovering; and iii) determining if the recovery plan is working. The five-year review is an important information tool and helps ensure that plants or animals that need protection remain on the list, while also making clear that those that do not are removed.

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City of Tulsa stuns residents by proclaiming it will follow the law – really

It must come as welcome news to Tulsa residents to learn that their city officials have finally decided to obey the Oklahoma Constitution.  In November 2012, Oklahoma voters passed an initiative that amended the state constitution by adding Article II, Section 36A.  That provision prohibits any instrumentality of the state from discriminating or providing preferences on the basis of race, ethnicity, and sex in public education, employment, and contracting.  California has a similar provision in its constitution that PLF attorneys have successfully defended and enforced.

The constitutional amendment in Oklahoma apparently meant nothing to city officials, who presumably took an oath swearing or affirming to follow the constitution.  Even after the constitution was amended, Tulsa continued to implement and enforce its BRIDGE program, which stands for “Building Resources in Developing and Growing Enterprises.”  Under that program, Tulsa required contractors who submitted bids for public contracts to make good-faith efforts to subcontract with firms owned by individuals of the preferred race and sex.  A program clearly in violation of the new constitutional amendment – Article II, Section 36A.

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The costs of race preferences

The Fifth Circuit Court of Appeals recently issued the latest in a long line of decisions in the case of Abigail Fisher v. University of Texas at Austin. Ruling for the University, the Court highlights the supposed benefits of considering race in the admissions process. However, the Court fails to acknowledge the other side of the equation–the costs to students admitted by virtue of racial preferences. In so doing, the Court ignored the Supreme Court’s mandate that the policy be subjected to non-deferential strict scrutiny. PLF’s amicus brief in support of rehearing before the full Fifth Circuit argues that strict scrutiny requires the Court to consider, not only the benefits that flow from the university’s race-conscious admissions plan, but the costs to those students admitted with lower academic qualifications. Continue reading

Taxonomy and the rule of eight

Earlier this year, the Foundation filed a petition on behalf of property rights and building industry groups to challenge the continued listing of the coastal California gnatcatcher under the Endangered Species Act.  The nub of the petition is that new scientific studies—including a mitochondrial DNA and nuclear DNA analysis by Dr. Robert Zink of the University of Minnesota—definitively demonstrate that the gnatcatcher does not constitute its own subspecies but rather is the same bird as its plentiful gnatcatcher cousins in Baja California.

The petition garnered some criticism from the scientific community, with one bird expert stating that the latest nuclear DNA study, in addressing only eight genetic markers of the gnatcatcher, was based on an inadequate data set.

Yet the Service appears to agree with the Foundation that, at least in some circumstances, Dr. Zink’s approach is sufficient.  For example, this week the Service published a determination not to list the Warton’s Cave Meshweaver—an eyeless spider—because the arachnid was not a separate species or subspecies; and, the data the agency relied on included a nuclear DNA study based on eight genetic markers.  So, at least for spiders (and we hope for gnatcatchers), eight is enough.

NEPA and climate change

In 2008, environmental groups petitioned the Council on Environmental Quality to revise its National Environmental Policy Act (NEPA) guidelines to expressly require a consideration of climate change effects in all NEPA compliance documents. Such documents are required for federal projects (including private projects that need federal approval) that may have a significant effect on the environment. This often takes the form of an Environmental Impact Statement or EIS. However, the Council never responded to the petition . . .until now.

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