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November 13th, 2021:

State lawsuits against SB8 finally get a hearing

A long strange trip it has been.

Right there with them

A state district judge on Wednesday morning heard arguments from abortion rights groups challenging Texas’ restrictive abortion law in what seems to be the first court hearing to specifically tackle the statute’s constitutionality.

David Peeples, a retired state magistrate judge, presided over the eight-hour hearing. He didn’t make a ruling Wednesday but is expected to make one soon after he receives additional filings from both the abortion rights groups and Texas Right to Life, a prominent anti-abortion organization and a defendant in the suits.

Peeples is considering over a dozen cases filed in state court challenging Senate Bill 8, which effectively bans abortions after about six weeks. These lawsuits — filed by Planned Parenthood, doctors, social workers, abortion fund organizations, practical support networks and lawyers — were consolidated by Texas’ multidistrict litigation panel to be heard together.

Attorneys for the 14 cases argued that the law is unconstitutional. Planned Parenthood sought an order blocking the law, while plaintiffs in the 13 other suits asked the judge to issue declaratory judgment of the constitutionality of the law, a legal maneuver used to resolve legal uncertainty in a certain case.

“In short, SB8’s enforcement mechanism, created to subvert one constitutional right, violates the Texas and United States Constitutions,” wrote attorneys representing the plaintiffs in the 13 other suits.

The suits target Texas Right to Life, which helped draft Texas’ law and has vowed to sue violators, even though the group has not filed suits against anyone as of yet.

Texas Right to Life argued that the plaintiffs can’t prove they’ve been injured by the law, and even if they did, the court has no jurisdiction to issue an order blocking the law. Furthermore, since it hasn’t actually filed any suits against people who have violated Texas’ abortion law, the organization argued it isn’t a proper defendant in the case. Its attorneys also argued the abortion rights groups were asking for an overly broad declaration to block cases that might hypothetically be filed.

See here, here, and here for some background. There’s video of the hearing here. The argument made by Texas Right to Life about how they couldn’t possible be sued for any of this, and the plaintiffs’ argument that the law has to be stopped at its root because the piecemeal approach fundamentally deprives them of their rights has been a part of this from the beginning and was a key element in the federal hearing before SCOTUS earlier this month. As before, I have no idea what the court might do or how long it might take to do it, but in this case I feel confident saying that it won’t be the final word. One way or the other, this will end up before the state Supreme Court. They may have some guidance from SCOTUS by then, but they’ll still have to grapple with those questions on their own. The Chron has more.

It’s mostly about the gay books

Color me not surprised.

Greg Abbott in the 80s

While a Texas House committee chairman’s inquiry into schoolbooks has often been linked to new state laws limiting how teachers address slavery and racism, most of the literature he’s called into question deals with a wholly different subject: LGBTQ issues.

That has also been the focus of Gov. Greg Abbott’s recent demands of the Texas Education Agency to work with other statewide agencies to set standards to prevent schoolchildren from exposure to what he’s defined as “pornography or other inappropriate content” and to investigate any possible related crimes. The books that prompted such labels and backlash from parents at a handful of Texas school districts are written by LGBT authors and discuss LGBT identity and relationships.

Democrats have denounced the Republican efforts as politically motivated attacks meant to gin up support from their base that they say will ultimately result in censorship and harm students, especially those who are already marginalized.

It’s part of a trend of conservative-led fights across the country over how schools can teach about issues of race, particularly systemic racism, as well as sex and gender, blurring the already faint line between local and national politics.

Rep. Matt Krause, R-Fort Worth, chairman of the House General Investigating Committee, had given the districts until Friday to respond to his inquiry. Several reached by Hearst Newspapers — including Katy and Fort Bend in the Houston area and Northside and Spring Branch in the San Antonio area — said Thursday that they were still reviewing the request and/or did not expect to make the deadline.

The letter had asked districts whether they carried any books on a list of about 850 that included Pulitzer Prize winners and other acclaimed literature.

Krause, who has not responded to multiple requests for comment, has said the purpose of his request is to verify that the districts are in compliance with new laws passed this year.

[…]

Danika Ellis, who runs The Lesbrary, a blog about lesbian and bisexual books, reviewed the list of titles Krause ran by school districts. She found — as a Hearst Newspapers analysis also concluded — that more than 60 percent of the books had to do with matters related to LGBT topics. About 20 percent touched on transgender issues or featured a transgender character. At least 9 percent related to sex education.

That’s compared with just about 8 percent that relate to race and racism. The rest of the books were not as easily categorized but related to topics such as teen pregnancy, abortion, contraception, sexual assault and sexually transmitted diseases.

“This house bill is supposed to prevent ‘discomfort,’ but what about the discomfort of kids who experience racism or who never see themselves represented in the curriculum or the books on the shelves?” Ellis wrote on her blog. “What about the discomfort of queer kids who see that even mentioning people like them is categorized as inappropriate or obscene or even ‘pornography’?”

HB1525 was primarily meant to make adjustments to the major school finance bill, HB3, passed in 2019. But a last-minute amendment by Sen. Bryan Hughes, R-Mineola, inserted language that required school boards to develop a policy for the adoption of human sexuality curriculum and set new guidelines for boards to follow in approving the curriculum.

They now have to take into account the advice of local school health advisory councils, parent groups appointed by school boards that give recommendations. They also were already required to ensure any approved materials were “suitable for the subject and grade level for which the curriculum materials are intended” and “reviewed by academic experts.”

Hughes did not respond to a request for comment.

Rep. Mary González, D-Clint, who co-authored the bill and chairs the Texas House LGBT Caucus, said it “never had the breadth” that Krause is claiming it has.

“The SHAC was put into a school finance bill to continue to target sex education when we know research tells us the opposite: that medically accurate, age-appropriate sex education is really important to holistic development,” González said. “However, what Rep. Krause has been trying to do over the last few weeks is beyond sex education and beyond the SHAC’s work, and he is primarily doing this not out of concern for children but out of political advantage for his own attorney general race.”

See here and here for the background. As of Friday afternoon, Austin and Dallas ISDs had said they will not respond to Krause’s request; it’s my hope that more ISDs, including Houston, will follow suit. The Trib has two more stories about this publicity/campaign stunt by Krause, which you can read as you see fit. I hate giving the little twerp any more attention for this, but ignoring it doesn’t seem right, either.

Some years ago, I was having a discussion with a friend about then-Mayor Annise Parker’s victory in the 2009 election over Gene Locke. I was trying to figure out why Parker did better in the Republican City Council districts than Locke did, given that Locke had made some effort to woo Republican voters. My friend’s response was “they’re more racist than they are homophobic”, which I still think about from time to time. From the vantage point of today, maybe that’s not so clear anymore.

What the BIF means for Texas

That’s the bipartisan infrastructure bill that was passed last week.

The White House estimates that Texas will receive about $35.44 billion over five years for roads, bridges, pipes, ports, broadband access and other projects after federal lawmakers passed a long-anticipated national infrastructure bill on Friday.

The influx of capital is set to advance existing transit plans, pay for much-needed repairs and could lay the groundwork toward increasing transportation options for Texans.

U.S. House lawmakers gave the roughly $1.2 trillion measure final approval late Friday after a series of negotiations and concessions to get the bill passed. President Joe Biden is expected to sign the bill into law soon.

[…]

Here is the breakdown of the funds that Texas is expected to receive based on estimates from the White House:

The White House also estimated that $3.5 billion will be invested to weatherize the country’s energy infrastructure, but it wasn’t immediately clear how much of that money would go to Texas or how those plans could combine with measures approved by the Texas Legislature this year in response to February’s devastating winter storm.

It’s smaller than I wanted, and there are some projects that were left out, but that’s still a sizeable investment, and after four years of loose talk about “Infrastructure Week”, it’s nice to finally close the deal. Just needed the right President and Congress, clearly. Speaking of which, remember that every Republican in Texas voted against this bill, so when you inevitably see one of them take credit for some project that is being funded by it, be sure to call them out.

The safety protocols

We won’t know for some time what exactly went wrong at AstroWorld, but we do know what should have been in place to keep the concertgoers safe.

When tens of thousands of people are packed into a confined area like NRG Park, crowd surges of some form are to be expected, security industry experts say, and certain precautions should be implemented.

“It’s very natural when the lights go down or somebody takes the stage, the entire crowd takes a step forward. It’s just natural, you move toward the point of interest. … And depending on the density of the crowd, that can become extremely dangerous,” said Tamara Herold, an associate professor at the University of Nevada, Las Vegas.

Herold researches crowd management and works with security firms and sports leagues around the world to ensure public safety at large-scale events.

While Herold couldn’t comment on the security at the Astroworld Festival, citing a lack of publicly released information, she said there are general steps organizers can take to mitigate risk at such festivals.

[…]

High-density events such as Astroworld carry with them inherent dangers, which have played out to tragic ends at concerts and sporting events throughout modern history. More specifically, Herold’s research has found that there is a much higher likelihood of violence and injury at events with general admission seating, the standard at festivals such as Astroworld.

One way to mitigate that risk is to separate the crowd into more manageable sections, Herold said. Videos posted to social media do appear to show the area in front of the stage separated into four sections.

If a crowd surge turns dangerous, the next best bet is to notify the performer, have them pause the show and encourage the crowd to settle down, according to Herold.

“If you allow the concert to continue, the pressure will continue to build, people will begin to panic and then they behave in ways that create even more pressure in the crowd as they try to escape, and it creates a very desperate situation,” Herold said.

See here and here for some background. Professor Herold is speaking in general terms, and what she says makes a lot of sense. This particular event should have had its own safety protocols, and there are questions about whether they were followed.

Astroworld had a plan for all sorts of emergencies. It designated who could stop a performance and how. It included a script for how to announce an evacuation. It detailed how to handle a mass casualty event.

Whether promoters followed it Friday evening, when eight concertgoers died and scores were injured during Travis Scott’s headlining performance, is unclear.

The Houston Chronicle obtained the 56-page “event operations plan,” which the festival promoter developed to ensure the safety of 50,000 guests at the sold-out event at NRG Park.

“Astroworld, as an organization, will be prepared to evaluate and respond appropriately to emergency situations, so as to prevent or minimize injury or illness to guests, event personnel and the general public,” the document states.

Attendees described an entirely different scene: an overwhelmed venue where security personnel were unable to prevent fans from being crushed. Where medics were too few. And where production staff were unwilling to halt the show despite pleas from fans that others had collapsed.

[…]

Harris County Judge Lina Hidalgo said a review of the plan — and whether it was properly followed — should be part of an objective, third-party investigation of the tragedy.

“What I know so far is that Live Nation and Astroworld put together plans for this event,” Hidalgo said Saturday. “A security plan, a site plan. That they were at the table with the city of Houston and Harris County. And so perhaps the plans were inadequate. Perhaps the plans were good, but they weren’t followed. Perhaps it was something else entirely.”

Litigation will provide a window into that, but that’s a slow process. Judge Hidalgo is right, we need a thorough investigation; I’m not sure what a third-party investigation would look like, but as long as everyone has sufficient faith in whoever is leading it, that’s fine by me. The goal should be to come to some answers, even just preliminary ones, in a short time frame. We all need to know how and why this happened. Ken Hoffman and Texas Public Radio have more.