By Elizabeth M. Felton, JD, LICSW, Associate Counsel
and Carolyn I. Polowy, JD, Of Counsel
© National Association of Social Workers. All rights reserved.
Significant change in social policy can be accomplished by the issuance of a single precedent-setting court decision. The NASW Legal Defense Fund (LDF) is highly conscious of this fact as it carries out the advocacy commitment of NASW in the courts. One of the goals of LDF has been to ensure that a social work perspective guided by NASW policy statements found in “Social Work Speaks” is represented in relevant precedent-setting appellate cases. In June 2016, the U. S. Supreme Court issued decisions in six cases in which NASW submitted amicus briefs or participated with like-minded organizations in drafting and presenting briefs. . The death of Justice Antonin Scalia left an eight member bench for the 2015-2016 Supreme Court term with several high profile cases to consider involving issues such as abortion, affirmative action, immigration, and union rights. This Legal Issue of the Month article reviews the recent cases in which NASW participated as a friend of the Court and the U.S. Supreme Court’s decisions from a social workers’ perspective noting the NASW policy statements that support each case.
Evenwel v. Abbott
This case challenged the use of total population in Texas redistricting. The “one person, one vote” principle of the Equal Protection Clause allows a state to design its own legislative districts based on total population. NASW and many other organizations joined in a broad civil rights coalition amicus brief that argued that total population is an appropriate basis for redistricting because it ensures that all people—not merely those who are eligible to vote or who actually cast ballots—are represented in the political process and it is consistent with the Fourteenth Amendment, which explicitly incorporates the principle of equal representation for equal numbers of people. Counting anything less than total population would be inappropriate due to barriers to registration and voting that disproportionately affect people of color, youth, the poor, and people with disabilities and would lead to an underrepresentation of those excluded from the voting process. NASW reaffirmed its belief m that participation in electoral politics is consistent with fundamental social work values, such as self-determination, empowerment, democratic decision making, equal opportunity, inclusion, and the promotion of social justice.
In the 8-0 ruling in Evenwel v. Abbott, the U.S. Supreme Court unanimously upheld the one-person, one-vote practice of drawing legislative districts on the basis of total population concluding that it is permissible under the Equal Protection Clause. NASW applauds this ruling which is consistent with NASW’s policy statements that support full and fair representation of all citizens in a designated district.
To review the amicus brief, go to the Legal Defense Fund amicus brief database at http://www.socialworkers.org/dnn/ldfbriefs/Home.aspx?back=yes#E
Friedrichs v. California Teachers Association
In this case, several California teachers wanted to overturn a state law that requires non-union teachers to pay “agency” fees as a condition of employment to support the union’s collective bargaining services. The teachers believed that those fees subsidized a political agenda that they did not support and was a violation of their First Amendment right to free association and free speech. The Teachers Association opposed that position and argued that eliminating “fair share” fees would create a class of workers who would pay nothing but be able to benefit from higher salaries, safe working conditions, and others benefits negotiated by unions.
In its policies, NASW supports the right of workers to organize, to engage in collective bargaining to improve their working conditions and to engage in work stoppages to draw attention to their grievances. NASW and the NASW California Chapter, as well as several other organizations, joined in an amicus brief in this case in support of the union’s position and argued that the public sector collective bargaining agreements appropriately include “fair share” provisions. Fair share provisions require employees who are represented by a union, but choose not to become union members, to contribute to the cost of securing the benefits and protections the union provides such as, collective bargaining, contract administration, and grievance processes. In the absence of such fair share provisions, many individuals would decline to pay union dues while still seeking to take advantage of union services, thus weakening the ability of public sector unions to represent everyone in the workplace. The brief in which NASW participated detailed how union representation in collective bargaining provides one of the most successful vehicles for providing economic and professional opportunities for women, people of color, and LGBT individuals, including lowering the income gap and increasing access to basic benefits like health insurance and parental leave, and providing important protections against discrimination.
The ruling resulted in an even 4-4 split decision that automatically affirmed the lower court’s decision in favor of the union’s position and preserves a previous Supreme Court decision in Abood v. Detroit Board of Education that ruled that “agency fees” in collective bargaining agreements were permissible. By dividing equally on the case, the Supreme Court affirmed the lower court’s ruling without setting any precedent.
The amicus brief can be found in the LDF brief database at http://www.socialworkers.org/assets/secured/documents/ldf/briefDocuments/Friedrich%20v.%20California%20Teachers%20Asociation.pdf
Zubik v. Burwell
This case involves a challenge to the contraception mandate of the Affordable Care Act (ACA) based on religious beliefs. At issue in this case was whether employers could withhold certain contraception coverage from employees based on the employers’ religious objections. Under the Affordable Care Act (ACA), employers’ insurance plans are legally required to cover contraception costs without charging co-payments. Since some religions are opposed to the use of contraception, there are two exceptions to the contraceptive mandate: 1) churches are exempt from offering contraception coverage and 2) organizations that do not want to pay for employees’ contraception for religious reasons can fill out a form to “opt out” and the employer’s insurer would have to provide the coverage at no cost to the employer. Even though the employers do not have to include birth control in their own employer health insurance plan, the plaintiffs in the case, objected to the “opt out” accommodation. They argued that filling out the forms places a “substantial burden” on their religious belief by violating the Religious Freedom Restoration Act (RFRA).
At stake for women was whether their employers would make it more difficult, if not impossible, for them to access essential birth control coverage by forcing their employees to navigate economic and other barriers to obtain coverage elsewhere. NASW and numerous other organizations filed amicus briefs in support of Burwell and argued that birth control is central to women’s economic security and equality which would be undermined by the alternatives proposed by the employers who object to the accommodation. Based on its Policy statements, NASW advocates that every individual, within the context of her or his value system, must have access to family planning, abortions, and other reproductive health services.
In a unanimous decision, the U. S. Supreme Court did not rule on the merits of the case but instead sent the case back to the lower courts to give the parties the opportunity to determine how to proceed in a way that gives employees contraceptive coverage while respecting the organizations’ exercise of its religious rights. Although the decision in this case vacated the government’s lower court victories that held the religious organizations were unable to show that the contraceptive mandate substantially burdened the exercise of their religious freedom, women did not lose their right to contraception coverage.
The amicus brief can be found in the LDF brief database at http://www.socialworkers.org/assets/secured/documents/ldf/briefDocuments/Zubik%20v.%20Burwell%20filed%202-17-2016.pdf
United States v. Texas, et al.
This case addresses the executive actions by President Obama that expanded the existing Deferred Action for Childhood Arrivals (DACA) program and introduced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. These executive actions authorized the Department of Homeland Security (DHS) to defer deportation, permit work authorizations, and provide ancillary benefits, such as social security and Medicare, to groups of undocumented parents of U.S. Citizens or lawful permanent residents who meet certain criteria. Texas and twenty-five other states sued the federal government to stop the DACA and DAPA programs from going into effect and challenged the constitutionality of these executive actions. They argued that by granting lawful status and deferred action to a large group of undocumented people, rather than on a case by case basis, the executive actions overstepped the limitations of the president’s power and changed the law rather than enforced it.
NASW joined five anchor organizations and 70 others committed to ensuring the psychological, social, emotional, and physical well-being of children in the United States in an amicus brief requesting reversal of the Fifth Circuit’s ruling that blocked President Obama’s executive order to allow and expand immigration deferred action programs. The brief argued that the implementation of DACA and DAPA could significantly improve the lives of these vulnerable children and greatly reduce years of apprehension and uncertainty over their legal status. It also argued that it would enable parents to better provide financially for their children and improve the educational outcomes, self-esteem and emotional health of DAPA children.
NASW Policy statements support efforts to ensure that children from immigrant families, regardless of citizenship status, are provided with the same societal protections as children from non-immigrant families. As social work practitioners and proponents of human rights, NASW also supports the U.S. government in providing homeland security and combating terrorism in a manner consistent with human rights, values, and ethics. The struggle to protect human rights remains a vital priority for the social work profession in the twenty-first century.
A Texas federal district court in Texas issued an order that temporarily blocked the DAPA and expanded DACA programs from being implemented. The Fifth Circuit issued a decision that affirmed the Texas federal district court’s order. In a split 4-4 decision, the U.S. Supreme Court affirmed the Fifth Circuit’s preliminary injunction of DAPA and expanded DACA. By dividing equally on the case, the Supreme Court affirmed the lower court’s ruling without setting any precedent. The Department of Justice subsequently filed a petition for rehearing with the Supreme Court and specifically asked that a full nine member Court hear the case.
The amicus brief can be found at http://www.scotusblog.com/wp-content/uploads/2016/03/15-674tsacEducatorsandChildrensAdvocates.pdf
Fisher v. University of Texas
NASW and the NASW Texas Chapter, through the NASW Legal Defense Fund, joined with the Leadership Conference and the Southern Poverty Law Center to file an amicus brief in a case renewing an Equal Protection challenge to the University of Texas’ undergraduate admissions process. The petitioner, a white Texas resident who was denied admission to the university, argued that that the University of Texas’ use of race as a consideration in admission decisions violated the equal protection clause of the Fourteenth Amendment. The university argued that its use of race one of many considerations and was a narrowly tailored means of pursuing greater student diversity.
The NASW amicus brief argued that racial diversity remains an important aspect of diversity in higher education by exploring the current racial tensions in America. Although the percentage of non-whites in America is increasing, minorities continue to have poorer outcomes, in great part because of institutionalized discrimination. In the context of rising racial tensions, racial diversity in higher education is more important than ever to prepare students for work and citizenship in a multi-racial society..
Recognizing that racism is pervasive in American society and that it remains a silent code that systematically closes the door of opportunity for many individuals, NASW supports affirmative action for groups that have historically been or are currently oppressed, underserved, and underrepresented, including people of color; people with disabilities; people who are gay, lesbian, bisexual or transgendered; women; older people; and people who are disadvantaged or oppressed because of life circumstances.
In a 4-3 decision[i], the U.S. Supreme Court rejected the challenge to the race-conscious admissions program at the University of Texas at Austin and ruled that it was lawful under the Equal Protection Clause. The Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw the program.
The amicus brief can be found in the LDF brief database at http://www.socialworkers.org/assets/secured/documents/ldf/briefDocuments/Fisher%20v%20UT%20Austin%20Amicus%20Brief.pdf
Whole Woman’s Health v. Hellerstedt
The Texas Legislature passed House Bill 2 (H.B. 2), which contained several provisions related to abortions. Specifically, one provision required that all abortion clinics comply with standards for ambulatory surgical centers and another provision required that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed. The petitioners sued the State of Texas seeking to invalidate those provisions by arguing that the bill denied equal protection, unlawfully delegated lawmaking authority, and constituted arbitrary and unreasonable state action.
NASW and its Texas Chapter , the Institute for Women’s Policy Research, and Re: Gender submitted an amicus brief in support of the petitioners that sets forth the poor health and well-being outcomes facing women and their families in the state of Texas, including higher cancer incidence and mortality rates, lower life expectancy, and lack of access to affordable health and prenatal care. The brief explained how these poor health outcomes, in part, reflect policy choices of the Texas legislature. Although the issues raised by this case are the subject of deep legal and political disagreement, amici argued that what should be beyond dispute is that women and children in Texas should not suffer from markedly worse health and access to health care than women and children in the rest of the United States.
NASW policy supports providing adequate health services regardless of financial status, race and ethnicity, age, or employment status, and developing adequate funding for, and increased research on, health services and issues that address disparities in these areas for diverse populations of women. The Texas Chapter of NASW has 5,800 members and works on issues impacting the quality of and access to health care for women and their families across the state of Texas. The Texas Chapter of NASW has a Women’s Issues Committee devoted to these issues.
In a 5-3 decision, the U.S. Supreme Court overturned the Texas law that required abortion clinics to have surgical facilities and the physicians to have admitting privileges at a nearby hospital.
The amicus brief can be found in the LDF brief database at http://www.socialworkers.org/assets/secured/documents/ldf/briefDocuments/Whole%20Women’s%20Health%20v.%20Cole.pdf
NASW, through the Legal Defense Fund, advances issues related to the social work profession in the courts by supporting cases that uphold social work values. NASW’s participation in six amicus briefs filed in the 2015 – 2016 U.S. Supreme Court term on major issues such as voting, abortion, affirmative action, unions, immigration, and contraception was guided by NASW policy statements and demonstrates NASW’s commitment to advancing social policy through its advocacy in the courts. Advocacy by NASW, on both a local and national level, must be continued in order to achieve, preserve and advance the gains that contribute to the advancement of public policies and social justice.
Evenwel v. Abbott, 578 U.S. ___ (2016)
Fisher v. University of Texas, 579 U.S. ___ (2016)
Friedrichs v. California Teachers Association, 578 U.S. ____ (2016)
NASW Policy Statement: Affirmative Action in Social Work Speaks 21, 23 (10th ed. 2015)
NASW Policy Statement: Civil Liberties and Justice in Social Work Speaks 42, 45 (10th ed. 2015)
NASW Policy Statement: Electoral Politics in Social Work Speaks 90, 94 (10th ed. 2015)
NASW Policy Statement: Family Planning and Reproductive Choice in Social Works Speaks 114,117 (10th ed. 2015)
NASW Policy Statement: Foster Care and Adoption and International Policy on Human Rights in Social Work Speaks 137, 186 (10th ed. 2015)
NASW Policy Statement: Women’s Issues in Social Work Speaks 332, 337 (10th ed. 2015)
U.S. v. Texas et al., 579 U.S. U.S. _____ (2016)
Whole Women’s Health v. Hellerstedt, 579 U.S. _____ (2016)
Zubik v. Burrwell, 578 U.S. _____ (2016)
[i] Without Justice Scalia, only seven justices considered the case because Justice Kagan recused herself since she worked on the case as solicitor general before becoming a justice.