I’ve used a lot of quotation marks because these are all terms of art.

I’m not familiar with the two cases to be heard tomorrow in the Supreme Court of the United States (aka SCOTUS), but here is an excellent post at the always excellent SCOTUSblog about the cases.

Like any risk management assessment, it’s almost impossible to be 100% certain that someone won’t ever do something “like that” or that they will absolutely continue to be that dangerous for the rest of their natural life. Just think about some of the most heinous events of the past 12 months – the Holocaust museum shooter, the Fort Hood event, the shooting of Army recruiters, the killing of George Tiller. From the clinical side, we have laws to protect the professionals who make the assessments about whether someone will or will not injure or do worse to others specifically because it is known that they cannot predict with 100% certainty and must be allowed to carry out their professional duties without constant fear of being sued when their assessments prove wrong. (Don’t worry – there is still plenty of room to sue – always, for better or worse.)

But juvenile recidivism is a topic I’ve researched since 1979, when I was in high school, literally (it was my first-ever independent study for a social sciences class). And the fact that 30 years later, this kind of case is coming before the Supreme Court just demonstrates how conflicted we remain and the evidence remains about what to do when juveniles commit crimes.

If anything, that fact alone indicates to me that we leave discretion intact for the jurists with the option to always review a case and so no cases where a sentence of life without parole is handed down to a minor, just as former Republican Senator Alan Simpson has said, he of the Simpson-Mazzoli immigration law that I worked on in the Reagan administration while working at the USDOJ. From Simpson’s WaPo op-ed:

When I was a teen, we rode aimlessly around town, shot things up, started fires and generally raised hell. It was only dumb luck that we never really hurt anyone. At 17, I was caught destroying federal property and was put on probation. For two years, my probation officer visited me and my friends at home, in the pool hall, at school and on the basketball court. He was a wonderful guy who listened and really cared. I did pretty well on probation. At 21, though, I got into a fight in a tough part of town and ended up in jail for hitting a police officer.

I spent only one night in jail, but that was enough. I remember thinking, “I don’t need too much more of this.”

I had a chance to turn my life around, and I took it. This term, the U.S. Supreme Court will decide whether other young people get that same chance.

…

When a young person is sent “up the river,” we need to remember that all rivers can change course.

I’d like to see studies about whether the possibility of the life without the possibility of parole sentence has worked as a deterrent. That’s usually the place I start when analyzing this kind of issue – does it actually do what it’s supposed to.

What do you think? Should the option to send a minor to prison without a possibility of parole be eliminated?

The Best Supporters Ever.

Moon over Garfield Memorial Church polling location in Pepper Pike – about 6:50am.

Sunrise over Garfield Memorial Church polling location in Pepper Pike. That’s Lander Road in front of me and the sunrise. It was about 7:20ish.

10. Everyone who writes about politics should have to run for office at least once.

9. Pepper Pike residents are our best resource.

8. Your “big tent” is defined by the entire population in the community whose government you hope to serve.

7. Stick to your campaign plan. NO MATTER WHAT.

6. Yard signs don’t vote but people still get very excited when they see a lot of them around town.

5. Ask questions, get answers and THANK every “old hand” you know.

4. If you’re excited, other people will get excited.

3. I still love Pepper Pike – probably even more.

2. When given a quality choice, people want to vote and want to believe in voting and in our system.

1. I love my family.

(I’m the one on the left in the glasses.)

1. Buckeye State Blog was indeed the first (and only one of two Ohio political blogs anywhere on the spectrum) to write about the case, Allen v. totes/Isotoner Corp.. On that day, I did pass its link on through women-focused listservs and it has been picked up since then, including on Change.org’s Friday Femme Fatale round-up – many thanks.

2. The decision came out just as OSU’s Institute on Women, Gender and Public Policy released a report on how poorly Ohio is doing vis a vis women.

3. That Danielle blogs here about her exchange of emails with totes (yes, small T) regarding the Allen case.  For those catching up, this case says that breastfeeding does not constitute part of pregnancy and therefore is not protected under Ohio’s pregnancy discrimination law, since, you know, breastfeeding isn’t part of pregnancy.

4. Danielle then goes even further in this post, digging in and discussing the lower court opinions, facts and then the Ohio Supremes’ abject failure to deal with biology.

5. You can read the opinion, but especially please read the dissent by Judge Pfeifer.

6. As a lawyer, a social worker and a mom who worked through all three of her pregnancies and pumped at work during two of them whenever I needed to within reason, including in airport bathrooms and during conference sessions when my mother would bring my infant to me, I have to tell you – there is almost nothing totes could say that would change my mind regarding how bad a legal decision the all-Republican Ohio Supreme Court made.

I agree that the facts do have relevance and importance, however, it is the crux – this idea that breastfeeding has no connection or not enough of a connection to pregnancy as to be connected to pregnancy discrimination that baffles most people who read the opinion.  It is just a completely nonsensical, impractical and not reality-based reading of the law and life.

Additionally, it is the arguments that Judge Pfeifer raises that should have been asked and answered at the lower court:

Any court’s method of analyzing cases should be (1) whether the plaintiff stated a cognizable cause of action and (2) whether the facts of the case support the alleged cause of action. It is unclear why, on this question of great general interest, this court has embarked on a backwards analysis, letting stand the appellate court’s holding that LaNisa Allen was fired for leaving her post without permission rather than for pumping her breasts in the employee washroom, thus leaving unanswered the question of whether she even asserted a cognizable cause of action. The trial court proceeded properly, although its conclusion was
incorrect: it found as a matter of law that Ohio’s pregnancy discrimination laws do not apply to protect breastfeeding mothers once their babies are born. It did as it should in ruling on a summary judgment motion: it gave the benefit of the facts to Allen and ruled on the law.

Somehow, the appellate court lost its way, and this court has followed. In its six-paragraph decision, the appellate court concludes that Allen was not fired for pumping her breasts: “Rather, she was simply and plainly terminated as an employee at will for taking an unauthorized, extra break (unlike the restroom breaks which were authorized and available to all of the employees, appellant included).” Allen v. totes/Isotoner Corp. (Apr. 7, 2008) Butler App. No. CA2007-08-196. The appellate court does not explain why Allen’s trips to the restroom outside scheduled break times were different from the restroom trips
other employees made outside scheduled break times. There is no evidence in the record about any limit on the length of unscheduled restroom breaks and no evidence that employees had to seek permission from a supervisor to take an unscheduled restroom break. There is evidence only that unscheduled bathroom breaks were allowed and that LaNisa Allen was fired for taking them. What made her breaks different?

We accept cases not necessarily because of how the result might affect the parties in the individual case, but because of how a holding might affect other persons similarly situated. Ohio’s working mothers who endure the uncomfortable sacrifice of privacy that almost necessarily accompanies their attempt to remain on the job and nourish their children deserve to know whether Ohio’s pregnancy-discrimination laws protect them.

I would hold in this case that employment discrimination due to lactation is unlawful pursuant to R.C. 4112.01(B), that clear public policy justifies an exception to the employment-at-will doctrine for women fired for reasons relating to lactation, and that LaNisa Allen deserves the opportunity—due to the state of the record—to prove her claim before a jury.

7. So – Ohio state legislators – who is going to be the first to produce a bill to redress this situation?  Or are you really going to make me run for the Ohio House 17th in order to get this done?

8. How many more reminders do we need that we have got to elect more diverse judges to the high court in Ohio?

9. And last but not least, I’ll be on Live from the Left Coast with Angie Coiro in about 45 minutes to discuss this case.  You can follow in the live-chat here or you can listen here, or do both.

You know, I’ve been pregnant three times, gave birth to live, healthy babies three times and nursed each of my three babies.  If breastfeeding my babies was not related to pregnancy, someone tell me what was going on with my body, k?

Kate Harding at Salon.com has an excellent take-down and analysis of this gobsmackingly narrow decision regarding Totes/Isotoner’s pregnancy discrimination that defies common sense.

In the strictest legal sense, the ruling is logical: Allen admitted she took unauthorized breaks, and that’s a firing offense. If she can’t prove that someone said, “Ha! Now’s our chance to get rid of her for being a woman!” then apparently, she can’t prove discrimination. But it’s manifestly weaselly to suggest that her “insubordination” can somehow be separated from the fact that she was lactating, especially since they were responding to a decision that included this colossal eye-roller:

“Allen gave birth over five months prior to her termination from [Isotoner]. Pregnant [women] who give birth and choose not to breastfeed or pump their breasts do not continue to lactate for five months. Thus, Allen’s condition of lactating was not a condition relating to pregnancy but rather a condition related to breastfeeding. Breastfeeding discrimination does not constitute gender discrimination.”

Of course not.

ZOMG.

Hey, you know – Totes obviously has no idea just how many women wear Totes-like socks during labor and delivery.  Do they really want every hospital to stop purchasing those items from them?  How about hotels, spas – also places lactating and pregnant women like to go – often for non-pregnancy related occasions.

Let me tell you something, Totes – you don’t think breastfeeding is connected to pregnancy?  Well – I don’t think wearing your brand of socks is connected to keeping my tootsies warm anymore.

Game on.

NB:  Anyone ask the thousands of doctors across the country, who tell women to breastfeed as long as possible because of the health benefits of breastfeeding to the babies, how they feel about this decision and whether breastfeeding is connected to pregnancy? And how about how our country ranks embarrassingly high on infant mortality, with countries like Germany, South Korea, Britain – oh, and Cuba doing better? Nah – guess Totes could care less about that.

This week, the New York Times ran this op-ed, “Smart Child Left Behind,” written by Tom Loveless, “…a fellow at the Brookings Institution and a member of the task force on K-12 education at Stanford’s Hoover Institution,” and Michael J. Petrilli, “…vice president for national programs and policy at the Thomas B. Fordham Institute.”  I could not agree more with pretty much every assertion and conclusion, including this:

It is clear that No Child Left Behind is helping low-achieving students. But it is also obvious that high-achieving students — who suffer from benign neglect under the law — have been making smaller gains, much as they did before it was enacted. Alas, this drug is producing no miracles.

No doubt, some will claim victory: We are closing the achievement gap between our top and bottom students! But is that our only national goal in education? What might happen if federal law encouraged educators to improve the performance of all students? Our analysis of the federal data identified tens of thousands of high achievers who are black, Hispanic or poor. They are excelling at their studies, often against great odds. Shouldn’t we be addressing their educational needs?

As we look for ways to improve No Child Left Behind, we must recognize that our top students still have much to learn.

Emphasis is mine.  I pray and wish that it would be that of many, many others as well.

Go read the whole entry.  Again, just because we can engage in ways that push the envelopes of decency and legality, doesn’t mean we should.

I also think that the lesson of the Massachusett’s Democrats who thought they were outsmarting former Gov. Mitt Romney by changing the law so that he could not appoint anyone to a U.S. Senate vacancy should be a lesson to everyone who makes stands on pure personal politics, rather than on reason and what’s best for the stability of our social and political contracts.  Difference of political ideology is one thing.  Setting law that could exist in perpetuity solely to gain or maintain political advantage will come back at you in the end.