Archive for the ‘Scotus’ category

Executing Child Molesters

May 23, 2007

I wondered why this old post discussing Troy King’s plan to extend the death penalty to child molesters received a spike in traffic the last two days. It’s because in that post I also discussed the first court test of such a law, and yesterday that court – the Louisiana Supremes – upheld it, affirming a death sentence for Patrick O. Kennedy, who was convicted of raping his eight year old step-daughter.

I have not read the opinion yet (which you can find here), but it doesn’t matter what it says. This is almost certainly going to Scotus. Well, to Justice Kennedy; everyone already knows exactly how all the other Justices will rule, so every brief will essentially be written to him. What will he do? Like I said in the earlier post, I’m betting he says it’s unconstitutional. I just can’t see the guy who authored the abominably bad Roper decision voting to expand the death penalty.

And if he does strike it down, that’s fine with me. Not because I care about the substantive issue, but because outside of Steve Spurrier (and maybe Baghdad Bob), no-one is more entertaining in defeat that Justice Scalia.

Even When Roy Moore Is Right, He’s Wrong

April 18, 2007

Here’s his latest column.

First, he is dead right that the recent Ninth Circuit case Harper v. Poway Unified School District is a really, really, really bad decision.

Basically, the court held that a local school was allowed to prohibit a student from wearing a t-shirt because the message on the shirt might have caused other students “to question their self-worth and their rightful place in society.”

What was the message, you ask? It should not matter, like I said here, schools ought have no power whatsoever to regulate the content of student speech absent some concrete disruption. But if you must know, it was this:

Appellant in this action is a sophomore at Poway High School who was ordered not to wear a T-shirt to school that read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” handwritten on the front, and “HOMOSEXUALITY IS SHAMEFUL” handwritten on the back.

Anyone who reads this blog knows that my views on homosexuality are about as far from Roy Moore’s as can be. But I agree with him that in this case the school acted unconstitutionally. The possibility of psychological harm does not justify eliminating free speech.

So how is he wrong? Two ways.

First, according to his disciples, he’s wrong to suggest that the school acted unconstitutionally. Here’s Roy’s take (emphasis added):

Obviously, the liberal judges on the court cared little for traditional rights of free speech

And here’s a statement by his underlings on the Roy Moore Blog. Speaking about the “Bong Hits 4 Jesus” case (in which a principal disciplined a student for waiving a banner with those words on it) the mini-Moores say (emphasis added):

If one follows the original interpretation of the Free Speech Clause, there is no need to side with Frederick in this case.  The clause states, in pertinent part: “Congress shall make no law . . . abridging the freedom of speech.”  Take the analysis a step at a time.  In the first place, the government actor involved here is not “Congress,” but rather a local school administrator.  Thus, from a traditional standpoint, the First Amendment has no application in this case. 

So which is it guys? Does the first amendment apply to schools, or not? Or does it apply when kids want to condemn gay students, but not when kids want to question drug policies?

Second, he is wrong about the Ninth Circuit. Moore uses the Harper case for a broader argument:

The United States Supreme Court properly vacated their opinion, which is nothing new for the high court, as it has reversed all eight of the other 9th Circuit cases that have come before it this term, an appalling reversal record for any circuit court of appeals. Since 1978, no other circuit court of appeals has had more decisions overturned. In the 1995-96 term of the Supreme Court, 27 of 28 cases from the 9th Circuit were reversed, and in the 2003-04 term, 19 of 25 cases were reversed, most by unanimous decision of all nine justices of the Supreme Court. . . .

The solution to the problem is simple. Rather than burden our high court with wrong decisions by the 9th Circuit Court of Appeals, Congress has the authority to abolish that court altogether and create a new court in its place or divide the circuit into two smaller circuits, thus reducing the reach of its radical decisions. In the alternative, Congress can impeach a few judges for their irresponsibility, holding them accountable for their wayward rulings. Our respect for law and reverence for the Constitution demand that we no longer tolerate the behavior of the judges of the 9th Circuit!

For starters, I can’t be the only person scratching my head trying to figure why Roy Moore - Scotus basher extrodinaire - now thinks an appellate court’s worth depends on how often that court pleases Scotus.

More to the point, if the problem is burdening the high court with wrong decisions, then congress is going to have to get rid of much more than just the Ninth Circuit. 

It is probably accurate that the Ninth is reversed more than any other court. But that is because it covers a much bigger area than any other court. Hence, more cases to appeal. So the real question is how the reversal percentage of Ninth cases taken by Scotus compares to other jurisdictions.  

Roy is correct that in 03-04, Scotus reversed 19 of twenty five Ninth cases, or 76%. What he does not tell his readers is that the average for all the circuit courts in that same year was . . . 77%.

Roy is also correct that the Ninth had a few bad years in the mid-nineties. But consider the long view.

Over the last fifty years, Scotus reversed 57% of Ninth Circuit cases. For comparison’s sake, the Eight’s rate is 55%; the Fifth, Sixth, and Tenth are at 56%; D.C is 62% and none are below 46%. That’s just federal cases. 25 states have a higher reversal rate, among them Alabama, Mississippi, Georgia, Louisiana, and Texas. In fact, the state average is the same as the Ninth Circuit’s: 57%.

Things don’t change much when the period of comparison is the last 12 years. The Ninth, at 61%, comes in behind the Second, at 62%, while 16 states have higher reversal rates.

In short, with the exception of a few crazy years in the mid-nineties, the Ninth gets reversed at a perfectly normal rate. There may be reasons to split the Ninth, but the reversal rate is not one of them.

It’s Not An Election Year

March 22, 2007

So can someone explain to me the reason for this bill:

[Yesterday, the] Senate Education Committee approved a bill to require public school students to say the Pledge of Allegiance.

Here’s the text of the bill:

(a) The teacher and students in each classroom in each public elementary and secondary school shall begin each school day by reciting aloud the Pledge of Allegiance to the Flag of the United States of America.

“(b) A student shall be exempt from reciting the Pledge of Allegiance if a parent or guardian of the student objects in writing to the recitation of the pledge on any grounds and files the objection with the principal of the school. A teacher shall be exempt from reciting the Pledge of Allegiance if the teacher objects in writing to the recitation and files the objection with the principal of the school. If a teacher is exempted, the principal shall designate another person to initiate the Pledge of Allegiance.

(c) Subsection (a) shall not be construed to require students and teachers who are not United States citizens and are attending or teaching school in the state to recite the Pledge of Allegiance

Requiring an unwilling student to say the pledge is a good way to lose a lot of money in a lawsuit, as it is an unconstitutional infringement on the student’s right to free speech. As recently as 2004, a Walker County, Alabama, school was nailed for penalizing a student who stood silently with his fist raised during the pledge.

Sure, this Bill has an exception for unwilling students, but only “if a parent or guardian of the student objects in writing to the recitation of the pledge on any grounds and files the objection with the principal of the school.” I do not think that exception will save the bill, though. 

Under the bill, the student’s “right” to free speech is entirely dependant on his teachers and his parents. The problem is that an unwilling student cannot just remain silent. The student must first get his parents to 1) agree to let him remain silent; 2) fill out the paperwork; 3) file it with the school. If any of those three things do not happen, than an unwilling student will be saying the pledge. And even if they do happen, until they do, the unwilling student will be saying the pledge. So if it takes mom and dad a few days to write the excuse and bring it to the school, for those few days, the free-minded student will have to bleat like the rest of the sheep.

It really is irresponsible to submit bills like this. Not just because it’s wasting time on something that is almost certainly unenforceable, but because if it passes, some patriotic teacher or administrator in some county without ready access to legal advice is going to think that it is now perfectly O.K. to require students to say the pledge. The law requires it, so they have to do it, right? But the truth is that any school that obeys this law would certainly get sued and probably lose a ton of money. Meanwhile the legislators who led those folks to believe their actions were permissible are completely immune.

(As an aside, and in light of this, I really think that that if the legislature is going to pass blatantly unconstitutional laws, they ought to include a warning that anyone who tries to enforce them will probably end up on the losing side of a federal lawsuit. Or else promise to indemnify anyone who tries to enforce the law.)

So I think the bill is unconstitutional. I think it will cost some unsuspecting school a ton of money. I also think it is just plain stupid. I’ll use the often-quoted but never tired Scotus lines from West Virginia State Board of Education v. Barnette to explain why:

Lastly, and this is the very heart of the Gobitis opinion [a prior case that had upheld mandatory flag salutes], it reasons that “National unity is the basis of national security,” that the authorities have “the right to select appropriate means for its attainment,” and hence reaches the conclusion that such compulsory measures toward “national unity” are constitutional. Id. at 595. Upon the verity of this assumption depends our answer in this case.

National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
 

“Bong Hits For Jesus”

March 20, 2007

As you are all well aware by now, I’m sure, Scotus heard oral arguments yesterday in this case:

Joseph Frederick, was an 18-year-old senior in 2002 when the torch for the Winter Olympics was scheduled to pass in front of [his] high school. Frederick was standing on a public street as the TV cameras came into range. He and several other students then unfurled the 14-foot banner that said, “Bong Hits 4 Jesus.”

The school’s principal, Deborah Morse, ripped it away from the students and sent Frederick to the office. She planned to suspend him for five days, but when he invoked Thomas Jefferson and the 1st Amendment, she doubled the suspension to 10 days.

Frederick sued, alleging Morse had violated his constitutional rights.

I used to be one of those Roy Moore types who wanted the government to enforce my religious beliefs. As you all know, though, that is no longer my view, and this case is a good example of why I think the long term interests of religious folks are better served by civil libertarians than by authoritarian conservatives.

The student’s argument is simple: Schools have no authority to regulate the content of student speech. Here’s the school’s argument, one supported by George Bush, and probably by Chief Justice Roberts and Justice Scalia:

The Solicitor General, along with the school, has argued that primary and secondary public schools ought to be permitted to engage in viewpoint discrimination and restrict student speech whenever the “message” conveyed by the student is “inconsistent with the school’s basic educational mission.” So, for instance, on this view a school could discipline a student for engaging in any advocacy of unlawful conduct, or expression of a message inconsistent with the teachings of the school itself, at least where such teachings are “central to a school’s basic educational mission.”

It does not take much imagination to realize what incredible powers that rule would give to schools. That power would have led to a resolution in this case that most religious folks would applaud: Silencing what appears to be a pro-drug or anti-religion message. Pope Benedict, for one, would certainly side with the school and President Bush, given his view that freedom of speech does not protect statements that insult a person’s religious beliefs.

But that power to silence dissident speech would extend far beyond this particular case, as many conservative religious folks have realized:

While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Mr. Frederick’s side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary.

The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as “defending the right to hear and speak the Truth”; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm “dedicated to the preservation of First Amendment rights and religious freedom.”  . . .

The briefs from the conservative religious organizations depict the school environment as an ideological battleground. The Christian Legal Society asserts that its law school chapters “have endured a relentless assault by law schools intolerant of their unpopular perspective on the morality of homosexual conduct or the relevance of religious belief.”

The American Center for Law and Justice brief, filed by its chief counsel, Jay Alan Sekulow, warns that public schools “face a constant temptation to impose a suffocating blanket of political correctness upon the educational atmosphere.”

The groups are worried because a school could very easily define its “educational mission” as something involving “tolerance,” “inclusion,” “openness,” or some other meaningless buzz word, and then use that mission statement to silence, for example, a student who wears a shirt condemning homosexuality.

We would probably have the opposite problem in Alabama. What do you suppose someone like Gerald Allen or Roy Moore would come up with for a school’s educational mission?

The point is that once the authorities have the right to impose orthodoxy from above, whether you enjoy freedom or not depends on who those authorities are. There is no guarantee they will always be folks who see the world the same way you do. 

On one day it would be hateful and punishable to argue against gay marriage, on the next day students who supported marriage equality would be suspended. Maybe this semester it is fine and dandy to question the wisdom of the drug war, but next semester doing so earns the student a three day vacation. In one town, students could not wear shirts saying things like “Turn or Burn,” while another municipality forbids proclamations like “Jesus saves, he shoots, he scores!”

Freedom should not blow with the wind. In my view, it’s much better to strictly limit the authority of state actors to regulate speech, even in schools. That way no matter who is in charge, folks can say whatever the heck they want to say. If I can’t punish people for disagreeing with me, than no-one can punish me for disagreeing with them.
 

Scotus And Exxon-Mobil

February 21, 2007

I speculated a few months back that one reason our state supremes had not yet decided the Exxon-Mobil case was that they were waiting for Scotus to decide their latest punitive damages case.

Well, Scotus decided it yesterday, and, although the ruling is as clear as mud, it does not appear to have much, if any, applicability to the Exxon-Mobil case.

The Scotus case was Phillip Morris v. Williams, and the first clue that it was a weird case is the fact that Justice Ginsberg wrote a dissent in which Justices Scalia and Thomas fully joined.

In the case Phillip Morris made two arguments. First, that the 100-1 ration of punitive to compensatory damages was unconstitutionally high. Second, that the trial court should have instructed the jury that they could not punish Phillip Morris for harms caused to people who were not parties to the litigation.

What Phillip Morris, Exxon-Mobil and the entire business community really wanted was for Scotus to find in their favor on the first question by saying something like “the ratio can never be more than 2-1.” Sadly, for them, Scotus ignored the first question and ruled only on the second, agreeing with Phillip Morris that juries cannot punish defendants for harm caused to non-parties.

That sounds good, but then the court said juries could consider harms to non-parties when determining the “reprehensibility” of the defendant’s conduct. So they can’t punish them for the harm to non-parties, but they can consider the harm to the non-parties when deciding on the right amount of punitive damages. I’m not making this up:

Respondent argues that she is free to show harm to other victims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible, although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.

I pitty the fool who has to apply that “rule” to a hypothetical on a bar exam. And does the all-wise Scotus give would be lawyers, as well as plaintiff’s attorneys, corporate counsel, trial judges or juries, any help whatsoever in making this distinction real? Of course not:

How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In articular, we believe that where the risk of that misunderstanding is a significant one because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.

Shorter version: “We needed to decide this case, but we really did not want to drop the 2-1 ratio bomb, so we concocted this silly distinction. Not sure what it means. But you guys have nothing better to do than try to figure it out. Oh, and if you guess wrong, we’ll make you do it over again.” Wow. Good luck with that.

Anyway, I don’t think this is going to impact Exxon-Mobil.

First, so far as I know, the only damages in Exxon-Mobil involved harms to Alabama. I have not seen anything in the papers about arguments that the company’s actions could have damaged anyone else. So whether or not the jury punished them for injuries suffered by non-parties should not even be an issue.

Second, unless Exxon-Mobil had raised this objection in the trial court, they would not be able to argue it now. Appeals are limited to issues previously argued in the trial court. Given the weird nature of the Phillip Morris case, I would be very surprised if Exxon-Mobil had made a similar argument at the trial court. Maybe they did. But I doubt it.

So, I guess the delay is due either to the conspiracy theory or the subjective nature of punative damages review.

Activist Judge

January 18, 2007

Regular readers know I think that term is a load of crap, and that I have very little patience for anyone who uses it, because – no matter who invokes it – what it invariably means is nothing more than “this judge made a decision I do not like.” But, if there is any case in the world where a judge actually has imposed his own views on an unwilling populace, it’s this one:

Brandon Deon Mitchell was sentenced Wednesday to death for a Thanksgiving Day 2005 triple murder after the judge overturned the jury’s 10-2 vote for life without parole.

The intro to “Law & Order” notwithstanding, in the criminal justice system the people are represented by the jury. And this particular jury heard all the evidence, considered all the arguments, and decided that no, in this particular case death was not appropriate. Then one elected judge in a rabidly death penalty state decides that his own opinion is better than that of ten jurors.

This is not a unique occurrence. Alabama law lets the judge override the jury’s recommendation for life or its recomendation for death. Judges use that power all the time. But they almost always use it like the judge did in this case: Ninety per cent (90%) of the time judges use the override, they use it to reject the jury’s pro-life decision and impose a death sentence.

Like I said, I think this is bad policy. I see no reason whatsoever to trust a judge’s decision more than the collective wisdom of the jury, especially not when that judge has to run for re-election in a state that is extremely pro-death penalty. I also think it is unconstitutional.

Basically, before Alabama can execute someone, Alabama has to do three things: 1) convict the person of a capital crime; 2) prove beyond a reasonable doubt that at least one “aggravating factor” to that crime was present; 3) demonstrate that the aggravating factor, or factors, outweigh any existing mitigating factors.

Its absolutely settled that the first two things are the sole province of the jury. If the jury says no on either, then that’s it, no death penalty.

The unsettled question is who gets to decide the third question. Most states have given that task to the jury alone. Alabama, by allowing judicial override, has said either the judge or the jury. In other words, in Alabama, there can be no death penalty if the jury votes nay on one or two, however, if the jury says yea on one and two, then, even if the jury says nay on three, the judge can impose death if the judge himself decides the aggravating factors outweigh the mitigating factors.

I think that is unconstitutional.

Over the last few years, Scotus (Scalia in particular) has re-invigorated the sixth amendment right to a jury trial by holding in several cases that facts essential to a penalty must be found by the jury beyond a reasonable doubt. That was the idea behind the end of the mandatory federal sentencing guidelines. It’s also the idea that made the second factor a question for the jury.

Now, here’s why I think that idea should also eliminate judicial override. Facts essential to the penalty must be found by the jury beyond a reasonable doubt. All three factors – capital crime; existence of an aggravating factor; aggravating factors outweigh mitigating factors – are essential to the death penalty. Hence, they all must be found by the jury beyond a reasonable doubt. That would mean the judge can not decide the third any more than the first two. If the jury says no death, that’s it, no death.

The objection to my analysis is that the weighing process is not a factual determination, but a moral judgment incapable of being subjected to standards like beyond a reasonable doubt standard. My response would be that beyond a reasonable doubt is not a quantitative measurement, but an expression of confidence. So it would be perfectly appropriate to apply it to the weighing process. Before the state can impose death, the jury must say that it is convinced beyond a reasonable doubt that death is appropriate.

That’s just my view on the current state of conlaw and its application to Alabama’s death penalty procedures. Regardless of whether you agree with me on that or not, I think we can all agree that as a matter of policy, we ought to get rid of judicial override. If twelve of our peers decide death is inappropriate, what is there to complain about?

Another Reason To Home School

January 3, 2007

This probably won’t bother many folks, but I think it’s interesting:

Sophomore Josh Reeves arrived at Gulf Shores High on a routine morning and was quickly summoned to the office. Once there, Reeves learned he must immediately provide a urine sample as part of the school’s random drug-testing policy. Reeves — a fullback on the Dolphins’ football team and an infielder on the baseball team — stepped into the restroom and returned to class minutes later.

“I like it because it keeps everybody straight,” Reeves said of the testing procedure. “It really didn’t matter to me. The kids that don’t do drugs don’t care about it, because they know they’re not going to get into trouble. The kids that do do drugs, they don’t like it because they will get in trouble.”

There’s also a third group of people, like myself, who really resent being treated as a criminal despite the absence of any individualized evidence, or even suspicion, that they’ve done anything wrong. Unless the authorities – in this case the school – have some concrete evidence that a particular person has violated a clear rule, then the authorities ought to be required to leave that particualr person the heck alone.

But those of us who place a high value on individual freedom and dignity have already lost the battle over school drug testing. Scotus has upheld random drug tests in schools: Vernonia School Dist. 47j v. Acton upheld tests for athletes and Board of Education v. Earls upheld random tests for students involved in any extra-curricular activities.

Both cases reasoned that because school students are already subjected to thorough control and the tests were used in a very limited manner, the tests were reasonable under the Fourth Amendment. Justice Scalia, writing in Vernonia:

Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self determination–including even the right of liberty in its narrow sense, the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See 59 Am.Jur. 2d §10 (1987). When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmaster is the very prototype of that status. As Blackstone describes it, a parent “may . . . delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.” 1 W. Blackstone, Commentaries on the Laws of England 441 (1769). . . .

Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognized in Skinner that collecting the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.” Skinner, 489 U. S., at 626. We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Ibid. Under the District’s Policy, male students produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially school children use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.

The other privacy invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject’s body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. See Skinner, supra, at 617. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function.

It sounds like the Baldwin policy is in accord with these Scotus cases. The tests are completely private, the results are not included with the student’s academic record, and then they are destroyed upon graduation. Most importantly, there is no invlovement of law enforcement.

Each student is given a unique, computer-generated number that is different from his Social Security number — a safeguard that Assistant Superintendent Terry Knight said is intended to guard against identity theft. A computer program at EDPM randomly selects the numbers. The student’s unique number — not the student’s name — is attached to the sample. “No one at the lab knows the identity of the urine sample,” Ash said.

Ash said urine samples are the most reliable form of drug testing, as opposed to blood tests or hair samples. Students being tested go into a restroom stall and provide a urine sample, Ash said, and a trained technician then takes the specimen. The urine is then divided and sealed into an A sample and a B sample. The A sample is sent to one of 61 federally approved labs for the drug screening. Ash said that the gas mass spectrometry test used to confirm results is accurate in its findings to one in 10 million.

If a test comes back positive, the student’s parent is contacted. The student is not affected by a positive result if he is taking over-the-counter or prescription medication that explains the test outcome. If a parent disputes the positive test, the B sample will be sent to a separate lab and tested with the same meticulous method. “This is designed to give the student maximum protection,” Ash said.

Drug-testing records are not attached to the student’s academic transcript, and are destroyed when the student graduates, Knight said. “We shred all of those records, and all that will be erased from the computer bank once they leave high school,” he said. “It doesn’t affect their grades in any way. The only thing it will affect is their extracurricular activities and driving. … Law enforcement will not be involved in any way.”

I can live with this. Don’t like it. Think it teaches kids they belong to the state, rather than the reverse. But I can live with it.

School Integration Cases

December 5, 2006

The question presented to the court is, basically, whether in order to integrate a public school, school officials can select students based in part on the student’s race. Thus far, it looks like the smart money is on the Seattle and Louisville school districts losing. So it will soon not only be unconstitutional to segregate students on the basis of race but also unconstitutional to do anything about existing segregation. Interesting.

Local reactions:

Three local systems, Decatur and Lawrence and Limestone counties, are under federal desegregation orders. Each works under plans aimed at making their schools more diverse.

Decatur Superintendent Sam Houston said the difference in Louisville and Seattle cases and the local cases are those two cities achieved “unitary status,” a term showing that they no longer operate under a federal court order.

“I’m not a lawyer,” Houston said. “But on the surface, it doesn’t appear our situations are the same.”

He’s probably right, for now. The new rule should not apply to districts that have yet to remedy their own historical de jure segregation. But what the cases will mean is that when the school achieves unitary status, it will probably have to stop doing everything it did to achieve that status. That is the situation in the Louisville system. What they are doing now is what they did when they were under a consent decree. But there is no more decree. So Scotus is about to tell them to quit what they are doing. Of course, what that holding will mean for Louisville and for the Alabama districts is an immediate return to the status quo ante: segregated schools.

In addition to the fascinating substance and odd impact, the case provides a test for orginalists:

The problem is that it’s almost impossible to justify striking down affirmative action programs in “originalist” terms, and the Supreme Court’s purportedly “originalist” judges have never bothered to try. If you look at the relevant jurisprudence of Antonin Scalia and Clarence Thomas, you’ll see ahistorical assertions that the language of the 14th Amendment prohibits all racial classifications along with powerful policy arguments  against the practice, but no attempt to prove that the 14th Amendment was understood at the time of its ratification to proscribe racial classifications intended to alleviate past discrimination. And the reason for this is obvious: it is implausible in the extreme to argue that, at the time of the Reconstruction Congress, the equal protection clause was generally understood to prohibit all racial classifications.

While it’s not strictly accurate to say that you can’t defend the Thomas/Scalia position on state racial classifications in “originalist” terms, you can do so only by defining constitutional principles at such a high level of abstraction that “originalism” is essentially devoid of content. If this is what originalism means, then William Brennan can be considered an originalist, Roe v. Wade is perfectly defensible in originalist terms, etc. etc.

What? You mean Scalia and Thomas are nothing more than results oriented hacks? Those are fighting words! Publius at Legal Fiction calls this “Originalism’s Ladder.”

B’Ham Bd. Of Ed. Settles Landmark Case

November 30, 2006

I meant to put this up yesterday:

Lawyers for teacher Roderick Jackson and the Birmingham Board of Education settled Tuesday night a 5-year-old gender-discrimination lawsuit that went to the U.S. Supreme Court in 2005, lawyers for both sides said.

The school board approved the settlement after emerging from a 10-minute closed session at the end of a board meeting.

Speaking for the board, attorney Kenneth Thomas said Jackson will receive $50,000. His lawyers will receive $340,000. . . .

Jackson, then an Ensley High teacher and coach, filed suit against the school board in 2001, contending he lost his job as head coach of the girls’ basketball team after he complained that the team was being treated unfairly when compared with the boys team.

The school, of course, argued that it fired Jackson not because he complained about gender discrimination, but because he was a sorry employee. That’s what the jury would have decided if this had gone to trial. If it found that he was fired for being a bum, then the school would have won. If it found that he was fired for complaining about the discrimination, then he would have won. We’ll never know what actually happened, though, because the Board decided there was too great a risk of losing big at trial to proceed and therefore decided to settle.

That kind of lawsuit happens every day. What made this one interesting – and what got it to Scotus – was whether Jackson could even bring a lawsuit under the relevant federal law. In the normal case, the person who sues for gender discrimination is the person directly discriminated against. The typical plaintiff is someone like the members of the girls’ team in this case. Jackson, though, was not the direct victim of gender discrimination. Rather, he complained about it occurring to someone else.

The Board argued that the law did not allow suits for retaliation against whistle blowers. Scotus, in a remarkably short opinion, said, yeah it does.

Here’s the statute (28 U.S.C. 1681(a):

“[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The Court explained that the retaliation was “on the basis of sex” because Jackson had complained that the girl’s team received less resources than the boy’s team. And it was “discrimination” because Jackson was treated differently than other similarly situated individuals. In short:

retaliation is discrimination “on the basis of sex” because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional “discrimination” “on the basis of sex,” in violation of Title IX.

You may not like the statute at issue, but I think this result is the proper reading of the statute. The Court pointed out that if the statute protected people from being discriminated against on the basis of “their sex” then the result would have to be different. But it doesn’t say that. It prohibits discrimination on the basis of sex. That was exactly what Jackson alleged in this case, and Scotus was correct to let the lawsuit proceed.

Another Reason For The Delay In Exxon Mobil

October 31, 2006

The background is here.

The conspiracy theory is that the state supremes are waiting until after the election to release the opinion because they lose no matter who wins the appeal. Affirming the amount of punitive damages awarded at trial will hack off their big money political donors. Cutting the damages will leave them open to accusations of being corporate tools.

I suggested that the delay is a result of the “law” governing punitive damages. It’s a completely subjective standard applied to a factually complex case, and so it should not surprise us that it has taken this long from nine individuals to agree on a result.

I forgot about it when I put that post up, but there is yet another possible reason for the delay. Scotus has before it this term a major case on punitive damages. Perhaps, anticipating an important new holding, the state supremes are waiting for it before making their own decision. If that’s the situation, the reports about the Scotus case indicate it may be some time before our state supremes decide Exxon Mobil.


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