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June 16th, 2020:

SCOTUS delivers a win for equality

Quite a pleasant surprise.

In a major victory for gay and transgender workers in Texas and nationwide, the U.S. Supreme Court ruled Monday that federal civil rights law prohibits employers from discriminating against workers on the basis of their sexual orientation or transgender identity.

Texas is among a majority of states that do not offer explicit protections for LGBTQ communities in employment, housing or public spaces, though some of the state’s biggest cities have passed some protections. And the ruling carries particular weight in a state where proposals to expand those protections have historically been dead on arrival at the GOP-dominated Texas Legislature.

Jason Smith, a Fort Worth employment attorney who represented Stacy Bailey, a Mansfield ISD art teacher who was put on leave after showing students a photo of her wife, called the far-reaching ruling a pleasant surprise because it “covers everybody in the rainbow.” He had not dared hope for such a comprehensive opinion, he said.

“I can’t tell you how many phone calls we’ve had at our law office from LGBTQ folks who we had to tell the courts were going to turn their case out,” Smith said.

Now, he said, “we can do something for them.”

[…]

Many federal courts, including those in and governing Texas, had ruled that Title VII did not protect workers from discrimination on the basis of sexual orientation.

The state’s first LGBTQ Caucus, founded in 2019, announced earlier this summer that it has bipartisan support for a comprehensive non-discrimination law for LGBTQ Texans. Long a legislative push from some Democrats, that proposal has never gone far at the Capitol in Austin, facing particular resistance from Lt. Gov. Dan Patrick and the socially conservative Texas Senate.

Now the fight moves to the state Capitol, where lawmakers said they will fight for similar protections in housing and other spheres. Wesley Story, a communications associate for Progress Texas, said it’s time “to expand those protections to other areas including education, housing, and health care.”

“Equal protection for LGBTQ employees is now the land of the land!” tweeted state Rep. Erin Zwiener, D-Driftwood and a member of the LGBTQ Caucus. “I’ve never been more happy to strike a piece of legislation off my bill list for next session.”

Zwiener added that she looks forward to fighting for other protections not covered by Monday’s ruling, including in housing and other areas.

As noted in that tweet, while this ruling offers protections at the workplace, it does not address things like housing. Plus, federal lawsuits are expensive and time-consuming, and thus limited as a way to redress discrimination complaints. That was one of the rationales behind local anti-discrimination ordinances, and the reason why a statewide non-discrimination law is still necessary. This was a big step forward, but it’s hardly the end of the road.

Let’s also be clear that the opponents of equality, once they are done wailing and gnashing their teeth, are going to set about doing everything they can to limit the effect of this ruling. They’re still trying to minimize the Obergefell ruling, so you can be sure this one will be in their sights as well. As long as the likes of Dan Patrick and Ken Paxton hold power, there will be danger. Celebrate the win, but don’t let your guard down. Slate and the Chron have more.

Meanwhile, the jail is filling up again

We really need to do something about this.

Sheriff Ed Gonzalez

The Harris County Jail population has been steadily rising since late April and is now approaching its pre-pandemic capacity despite early efforts to curb crowding, according to the sheriff’s office.

With an influx of inmates anticipated during the summer months, the jail is facing a “serious crisis,” according to a report Tuesday that a sheriff’s representative classified as “sobering.”

The update about the jail population came in a study the county commissioned from the Justice Management Institute, a Virginia-based nonprofit that works with government agencies to make their courts and jails more efficient.

“The justice system has been struggling since Hurricane Harvey,” Tom Eberly, the organization’s program director announced in video testimony before Harris County Commissioner’s Court. “Now with the COVID-19 pandemic, the justice system is on the verge of collapse in your county.”

If the anticipated pace of bookings follows previous patterns, the county could reach 10,000 inmates by Labor Day, according to the nonprofit group’s calculations. And the courts were already backed up before the virus, officials said.

[…]

The lawyers challenging the county’s bail system, who lost a bid for an injunction to order coronavirus releases, said thousands of felony defendants are stuck at the jail awaiting trial simply because they can’t pay cash bail. The vast majority of the population is made up of up pretrial felony detainees.

“Their constitutional rights are being violated, and their health and safety are being jeopardized by COVID-19, which is rampant at the jail,” said Neal Manne, of Susman Godfrey, who works pro bono on the bail cases. “Though Sheriff Gonzales wants to solve the problem, he can’t solve it by himself. No one else is doing anything other than talking about it, week after week, month after month, as COVID-19 surges.”

In the meantime, coronavirus infections have continued to increase, with 993 inmates testing positive since the start of the pandemic.

The pandemic has cramped the jail’s holding capacity, which changes day to day depending upon how many people are quarantined and how much the jail staff must space them out on the cell blocks to help prevent the spread of the virus. For example, 835 inmates who have had the virus and remain in custody have now recovered. But 778 are being kept in observational quarantine, meaning they are not showing symptoms, but they may have been exposed to COVID-19.

Another 600-plus people are housed in what the jail calls “buffer quarantine” because they are new to the jail, according to the sheriff’s office. And nearly 300 convicted inmates are ready to be transferred to state prison but Texas Department of Criminal Justice is not accepting them during the pandemic.

Meanwhile, the jail population is increasing by 115 inmates per week and as of May 1, the county had more than 36,000 pending felony cases, Eberly said. If no new felony arrests were made in the coming months, it would still take 13 months to dispose of the backlog, he said.

However, if the system keeps shuffling along as is, it will take 4½ years to catch up, the study found.

Statewide, jail populations also decreased in the first months of the pandemic and have begun rising going into the summer, a normal trend outside of the unusual circumstances this year, said Brandon Wood, executive director of the Texas Commission on Jail Standards.

Population spikes at county jails largely stem from backlogs in the courts, he said.

“It’s going to be incumbent on Harris County to manage its jail population properly,” Wood said.

You have to wonder how much worse this would be if there were a bunch of misdemeanor inmates awaiting trial because they couldn’t make bail as well. There’s basically three things we can do here. One is to release a bunch of the low-risk inmates who couldn’t come up with the cash for bail. That’s on the judges and the District Attorney, and while there’s been some movement on that, there could be a lot more. Two is to get the courts to the point where they can make a dent in that backlog, which is going to be a hell of a challenge given the fact that the court buildings are still suffering from Harvey, and oh yeah, that global pandemic. Maybe just consider dropping a bunch of low-level charges, divert as many drug charges as possible, and offer as many deferred adjudication deals as possible. There’s some risk to this approach, but what we’re doing right now is not sustainable. And three, maybe now is a good time to just stop arresting people on low-level drug possession charges. Turn down the incoming spigot, and stop adding to the problem. I don’t know where this ends, but the direction we’re going right now doesn’t lead anywhere good.

What are we going to do about that Independent Police Oversight Board?

The easy answer is “make it better”, it’s how you do that that’s harder.

As protests over George Floyd’s death swept the nation, activists in Houston cried out for police reform. Among their demands: Give us an independent police watchdog.

One already exists, city officials said: Houston’s Independent Police Oversight Board.

But the board lacks meaningful power, with one longtime civil rights activist calling it “window dressing.”

Houston’s Independent Police Oversight Board, which reviews investigations completed by the Houston Police Department’s internal affairs division, meets at police headquarters. It cannot launch its own inquiries or accept complaints directly from civilians. Members are forbidden from discussing any of the cases they review — even with the mayor or other public officials. Its sparse website includes instructions on how to file a complaint with police, but little information on the board’s own work. It lacks the power to subpoena documents or compel officer testimony. It’s a volunteer body appointed by the mayor and has no professional staff. And when members of the oversight board make policy recommendations, they often never find out what happens to their suggestions, current and former members told the Chronicle.

“It’s clear if we had additional clout, we could do more and better work,” said Gerald Birnberg, a Houston attorney who serves on the oversight board. “It feels like we’re working in the dark.”

As America reckons with racism and calls to address police violence, critics say Houston’s police oversight board is inadequate. Those who argue against change say the board has sufficient power and lacks training to investigate or issue subpoenas.

[…]

The board can make recommendations to the chief related to disciplinary action, policies and training, but the chief has the final say.

While members are forbidden from discussing the cases they review, some of their recommendations became public in a police brutality lawsuit filed after the 2012 police killing of Kenny Releford.

HPD was forced to turn over internal affairs files related to several shootings, with recommendations filed by the IPOB and its earlier incarnation. When the board reviewed the July 2012 shooting of Rufino Lara, two members of the panel wrote notes urging de-escalation training.

The officer should not have “fired her gun on someone who was not pointing or near to pointing a dangerous weapon toward her,” one member wrote. “Better training needs to be provided.”

The majority agreed with the department’s conclusions, but all checked off boxes indicating training had not been sufficient.

The police department also maintains discretion in deciding what records to release to the oversight board, though board member Kristin Anderson, a psychology professor at the University of Houston-Downtown, said members “see all documents associated with any case” that comes to the board.

She said the public deserves transparency, but said granting the board subpoena power is a “red herring” and would not give members “the ability to tell if a cop is lying.”

Birnberg said board members do not have unfettered, immediate access to all the records they request. He recalled seeing cases where board members were told obtaining an autopsy would take four months — far longer than the two-week period the board’s panels have to review individual cases.

“I don’t know if the chief is aware of the structural impediments to the panels getting meaningful information at the time they’re supposed to be ruling on the cases,” he added.

[…]

Houston attorney Joe Melugin, who spent three years suing the Houston Police Department over the shooting death of Kenny Releford, said he disagrees with those who say holding police legally accountable police should be left to the district attorney.

“Until the city fires police officers for abuses of power and unjustified violence, and until the DA prosecutes police the same as any of the rest of us, then the problems with police abuses of power will persist regardless of changes to the IPOB,” he said. “We must change how the police force exists and operates in our city.”

There’s a lot of back and forth in the story about what the IPOB can and cannot do, and I’m not in a position to assess the claims. I agree with Joe Melugin, the ultimate goal needs to be accountability, where bad cops are fired and cops who break the law are arrested and prosecuted like anyone else would be. Surely if that had always been the case, we wouldn’t be in the position we’re in right now. As for the “how do we get there” part of the discussion, I basically agree with the Houston Justice Coalition demands:

1. Uniform Body Camera Policy

The current body cam policy is a disjointed mess. Cameras are not on consistently. According to a KHOU investigative report completed in 2017, very few tapes were released to the public upon request. We demand that cameras run and that all tapes are released within 24 hours upon request.

2. Transparent Tracking of Complaints

When a complaint is made on an officer, there is no way to know the status of the complaint. The timelines for followup are egregious, and often aren’t even followed. Houstonians who want to hold police accountable must have a clear system with expedient, easily accessed methods of feedback between them and HPD to ensure that officers face consequences when they violate policy and civil rights.

3. Citizens Review Board with Subpoena Power

A citizens review board must have the power to bring officers in for questioning and possibly for charges and repercussions. Otherwise, a board is simply an artificial token, not an arbiter of true justice. We demand that a citizens review board chosen by The People, unchecked by the Houston Police Officers Union or City Hall, be formed immediately and granted with the power to subpoena law enforcement—full stop.

Maybe subpoena power isn’t all that, but let’s try it first and see where it gets us.

What kind of college football season will there be?

News item: Governor says to expect half-full stadiums for college football.

Texas Gov. Greg Abbott told athletic directors from the state’s largest schools to expect 50 percent capacity at football games this fall, USA Today reported, but Texas A&M athletic director Ross Bjork is remaining optimistic.

With more than 80 days to Texas A&M’s first scheduled game against Abilene Christian at Kyle Field, Bjork said this is no time for absolutes when determining college attendance in the late summer and fall, based on the global pandemic.

“As of today, we still have time on our side,” Bjork said Saturday. “And we will not make decisions based on incomplete information.”

USA Today reported that Abbott met with the dozen athletic directors from the state’s Football Bowl Subdivision programs via teleconference Friday, and “told them not to expect capacity at their stadiums to be above 50 percent this fall.”

“The governor was very gracious with his time and provided us with insights into the current situation,” Bjork responded Saturday. “It’s disappointing that information from the meeting leaked since the discussion was meant to be confidential, and I will not disclose the details of the conversation and violate Gov. Abbott’s trust.”

Bjork, hired by A&M a year ago from the same position at Mississippi, added: “As we’ve learned throughout this unprecedented situation, everything remains fluid, and there are a number of scenarios for attending upcoming pro and college sporting events.”

Bjork has expressed confidence this month that Kyle Field might be near its capacity of more than 100,000 as the fall schedule presses on. The Aggies are scheduled to host ACU on Sept. 5 in coach Jimbo Fisher’s third season.

Emphasis mine, and the Chron has a separate story expanding on Bjork’s rather optimistic hypothesis. Abbott had previously stated that he expected college football to be played, though he didn’t specify at what capacity the stadia might be. I will remind you that at this point, all of the professional sports leagues, from the ones that are now playing to those that are still planning their comebacks, are playing in empty arenas. It’s impossible for me to square that with the likes of Kyle Field at full capacity. They can’t both be right.

And on that note, we have this:

The University of Houston abruptly halted voluntary workouts Friday after six student-athletes tested positive for COVID-19.

In a release, UH said it was suspending workouts – which began June 1 with football and men’s and women’s basketball – “out of an abundance of caution.” The school said the six symptomatic student-athletes had been placed in isolation and contract tracing procedures have been initiated.

The announcement comes nearly two weeks since voluntary workouts began and as the Houston area has seen a recent surge in positive tests for COVID-19.

UH becomes the first school to suspend athletic activities since the NCAA cleared the return of student-athletes back to campus following a nearly three-month shutdown due to the coronavirus pandemic.

UH only tested student-athletes that showed symptoms or came from areas that had a high number of positive cases, a person with knowledge of the protocol told the Houston Chronicle earlier this week. Athletic officials have declined comment.

In other words, there are others they didn’t test that might possibly be positive as well. The story lists fourteen other schools that have reported athletes with positive COVID-19 tests, including three in the SEC. It is very likely that all of these athletes will recover fully – I certainly hope they all do – and now that they have been tested they can be quarantined so as not to pass the virus on to anyone else. UH is the only school in this story that actually stopped its voluntary workouts as a result of this, which is a whole ‘nother kettle of fish. My point here is that whatever the likes of Greg Abbott and Ross Bjork may say or do, they ultimately have very little control over this virus. And as I keep saying, they don’t seem to have much of a plan for it, either.

UPDATE: Welp.

Several Texans and Cowboys players have tested positive for COVID-19, including Dallas star running back Ezekiel Elliott, according to the NFL Network.

The players who tested positive reportedly weren’t in attendance at their team facilities, which have remained closed due to NFL restrictions limiting their use only to rehabilitating injured players during this global pandemic. Both teams have followed medical protocols.

[…]

NFL teams, including the Texans, have taken steps to ensure the safety of players, coaches and staff. The Texans created a new position, hiring a facility hygiene coordinator earlier this offseason. The Texans are believed to be the first professional sports team to add this type of specialized position.

The intention is to minimize the risk factor of getting or spreading COVID-19 and supervise the custodial staff, which is provided by Aramark.

I know, that’s NFL, not NCAA. My point is, it’s not just a question of whether or not it’s safe to have fans in the stands. There’s still the little matter of whether it’s actually safe to have the players practice and play together.