Saturday, March 31, 2012
Wisconsin's controversial Act 10 has been declared unconstitutional in part by federal district judge William Conley in a summary judgment opinion in Wisconsin Education Association Council v. Walker.
Judge Conley ruled against the plaintiffs' equal protection challenge to Act 10's classification between emergency public employees and "general" public employees. However, Judge Conley held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarentees and Act 10's prohibition of dues withholding for general employees violated the first amendment.
In considering the dues witholding provision, Judge Conley noted that
Act 10 was enacted in the maelstrom of a political sea change in Wisconsin, the Act itself being the principal lightening rod around which the tumult reached its heights, at least to date. Whether or not the prohibition on automatic dues deductions for most public unions, but not those who supported the new Governor and Legislature, was an intentional act to suppress the speech of those who opposed then, it has that appearance.
The "maelstrom" to which Judge Conley referred is ongoing. The state Government Accountability Board has just unanimously ordered a recall election for Governor Scott Walker (pictured above) who spearheaded Act 10. Earlier this month, a state judge held Wisconsin's voter identification law unconstitutional under the state constitution, a ruling that is being appealed to Wisconsin's troubled Supreme Court.
Judge Conley's order required "a return to automatic dues deductions for all members of public unions no later than May 31, 2012," in order to "give sufficient time for the defendants to seek a stay of this injunction from the Seventh Circuit Court of Appeals, and for government entities to adopt a workable procedure to return to automatic deductions should the Seventh Circuit deny a stay, while balancing the plaintiffs’ and their now-voluntary members’ rights to a return to payroll deductions."
[image: Scott Walker via]
Friday, March 30, 2012
Ark. Code Ann. § 5-14-125(a)(6) (Repl. 2009) provides that a person commits sexual assault in the second degree if the person is a teacher in a public school in a grade kindergarten through twelve (K-12) and
engages in sexual contact with another person who is:
(A) A student enrolled in the public school; and
(B) Less than twenty-one years of age.
In a 4-3 opinion, the Arkansas Supreme Court in Paschal v. State declared the statute unconstitutional as applied to the criminal conviction of David Paschal, a high school teacher, for a "months-long sexual relationship" with an eighteen-year-old student. Pashal had been sentenced to ten years’ imprisonment
on each of three sexual-assault convictions and given ten years’ suspended sentence for a fourth sexual-assault conviction.
Pashal relied upon Lawrence v. Texas as well as interpretations of the Arkansas Constitution protecting adult consensual sex. While the Arkansas court had previously upheld the criminalization of sex by a member of the clergy who is "in the position of trust or authority over the victim and uses the position
of trust or authority to engage in sexual intercourse or deviate sexual activity," the court here noted that § 5-14-125(a)(6) was a "strict liability" statute that did not mention trust or authority.
It was on this interpretation of the statute that the majority and dissent bitterly disagreed. The majority opinion, footnote 10, stated: "We find appalling the statement from one of the dissenting justices that the majority’s interpretation of the statute condones a teacher’s misuse of trust or authority." Later in the same footnote the majority writes that the "dissent's manufacturing" of the issue of the teacher's awareness of a position of authority "is both injudicious and irresponsible."
Essentially, the majority found persuasive the fact that the victim was an adult. The state conceded the sexual relationship was consensual, and without more, the statute was unconstitutional as applied.
[image: "The Schoolmaster" by Charles Green circa 1875 via]
Discussions of secession always seem slightly humorous, including our previous one discussing Long Island and Vermont - - - as well as Texas.
And Texas is in the "news" again, with this rather lengthy "Lone Star State of Mind" on today's All Thing's Considered broadcast on NPR.
Worth a listen!
Thursday, March 29, 2012
The Supreme Court yesterday seemed just as skeptical--and maybe even more so--of the Medicaid expansion as it was of the universal coverage, or individual mandate, on Tuesday. The line-up was similar, with Justices Ginsburg, Breyer, Sotomayor, and Kagan appearing to favor the government, and Justices Scalia and Alito leaning against. (Justice Thomas was again silent, but his opposition to Medicaid expansion is all but certain.) The difference in yesterday's argument: Chief Justice Roberts and Justice Kennedy seemed even more strongly against Medicaid expansion than against the individual mandate.
The core issue in the case, of course, was coercion: Did the federal government coerce the states by conditions a states' entire pot of Medicaid funding on its acceptance of the expansion?
Chief Justice Roberts made some very strong statements against the government's position that expansion isn't coercion, especially worrying about federalism and "intrusion on the sovereign interests of the State." Transcript p. 59; see also Transcript p. 34. This latter question, the one on page 34, also suggests that the federal government "having attached the . . . strings, [states] shouldn't be surprised if the Federal Government isn't going to start pulling them." On balance, though, the Chief Justice seemed to lean against expansion.
Justice Kennedy seemed worried most about accountability--how citizens could sort out who to blame if they didn't like the policy. He recognized that there's no "workable" test based on accountability (p. 64), but he also seemed to want to find a place for accountability in the analysis. He was also concerned about "practical coercion" (my phrase), discussed immediately below.
In the end, there seemed one predominant theme among those who appeared to lean against the expansion: If the government can't conceive of a state declining to participate in the expansion--because the money's too sweet, because the program's too good, or because the individual mandate would have a hard time working without it--it seems like coercion. This kind of plain-spoken, practical coercion might just drive the case.
Others apparently favorable to the expansion argued that this practical coercion must mean that a program can be unconstitutionally coercive only because it's too good--a plainly absurd conclusion, and therefore not a reason to overturn the expansion.
Several other themes emerged:
Complete Funding. The federal government pays the lion's share of the expansion in the first few years--a point made early by Justice Kagan. To those favoring the government, this makes it look like a pure federal gift to the states for the purpose of expanding Medicaid. But Paul Clement, representing the states, argued that it was both the size of the Medicaid program and the expansion that makes this coercion: because of Medicaid's size, state's can't afford to lose it; because of the generosity of the expansion, states can't say no to it.
Related: There was concern among those apparently leaning against the expansion about why states could stand to lose all their Medicaid funding just because they don't agree to take funding for this incremental expansion. This issue relates to executive discretion, discussed below.
Related: Chief Justice Roberts seemed especially concerned that the federal government could later decrease the amount of its participation, after leading the states on with this nearly-completely-funded expansion, and leave states in an even more precarious situation--even more coercive.
Complete Overhaul. Justice Sotomayor asked if the federal government could simply scrap the whole program and start all over, why it couldn't add this incremental expansion. Clement said that nobody has a problem with certain existing Medicaid programs, and so it makes no sense to condition the whole program, including existing programs, on a state's willingness to sign on to the incremental expansion.
Politics. The politics played a minor role, but were there. Justice Ginsburg asked about the other half of states that may favor the expansion, and Justice Scalia helped point out that the states in this case--those opposing expansion--are headed by Republicans. In Clement's words: "There is a correlation." P. 21.
Spending Power. Clement tried to distinguish between congressional use of the spending power for objectives included in other portions of Article I, Section 8, and use of the spending power for ends outside of its Section 8 powers. It's not clear whether this position has enough traction to work its way into the Court's analysis, but it does revive a very old (but now well settled) debate over the scope of congressional spending power: Congressional spending power is most certainly not cabined by what it can do under other Article I, Section 8 powers. Clement's position seems to question that, even if only on the margins.
Taxes and Citizenship. Clement argued that the federal government is encroaching on state authority by taxing state citizens for a benefit that they don't want. The argument confuses state and federal citizenship, and didn't seem to get any traction with the Court. But Clement's related argument--that federal taxes to support Medicaid expansion crowd out states' ability to tax their citizens for other purposes--did get some attention among opponents of the expansion.
Executive Discretion. Justice Breyer raised the point that the Secretary is bound by the APA in revoking all Medicaid funds for a state that declines to participate in the expansion, and that such a decision would be subject to rationality, or the arbitrary and capricious test. This point gained traction as the argument moved forward, but the Justices seemed to divide over the implications: Justice Breyer argued that this means that the Secretary isn't unbound in revoking all funds, and others pointed to the history of the Secretary's modest exercise of this authority; opponents of the expansion argued that the authority to revoke all funds is still there in the statute. SG Verrilli, of course, couldn't give assurances about how the Secretary would use the discretion, but suggested that the Secretary wouldn't revoke all Medicaid funding.
Accountability. Justice Kennedy raised the point about accountability: How can citizens understand the lines of accountability for a program that's so strongly encouraged by the federal government? Accountability is surely a consideration, but it's not clear how much, if at all, it'll turn this case. Justice Kennedy also said that any test based on accountability is "unworkable," but he seemed to search for a way to consider accountability within the coercion framework.
Practical Coercion. Again, Chief Justice Roberts, Justice Scalia, Justice Alito, and even Justice Kennedy at one point all pointed out, in only slightly different ways, that if the government can't conceive of a state saying no--because of the size of the program, or because how expansion fits with the individual mandate, or because Congress knew that states liked Medicaid so much and just assumed that all states would come on board--then that's coercion.
SG Verrilli wrapped up his argument with an appeal to liberty--the liberty of those who would be covered by Medicaid expansion to receive funded medical care. This was refreshing, but probably not anything that would persuade those who oppose the expansion based on the sovereignty of the states and federalism.
This case, like the universal coverage case, will likely turn on Chief Justice Roberts or Justice Kennedy or both. But here both seemed even more opposed to expansion than they were to universal coverage.
Tuesday, March 27, 2012
The Supreme Court today heard oral argument in the congressional authority portion of the challenge to the Affordable Care Act--whether Congress had authority under the Commerce Clause or its taxing power to enact the minimum coverage requirement. Links to the audio files and transcript are here.
The questions at argument suggest that the case may turn on Chief Justice Roberts or Justice Kennedy (or both), both of whom, in different ways, appeared to give serious attention and thought to both sides of the argument. But if they leaned, both also seemed to lean toward opponents of the provision. For example, both (but Chief Justice Roberts perhaps more than Justice Kennedy) seemed much more skeptical of the government's argument than the opponents' argument. And Justice Kennedy at one point suggested that the government face an even higher burden, given the "unprecedented" nature of the provision. He also gave a short statement on the tradition in American law of not imposing a duty to act.
Justices Scalia and Alito seemed more set in their positions against the provision; and Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed more set in their positions in favor. (Justice Thomas was silent, but his position (against) was never seriously in doubt.)
In short, this could be a squeaker one way or the other.
Several themes caught the Court's attention:
Nature of the Market. The Court spent time figuring out whether the relevant market is unique, because everyone will at some point enter it. This question turns on what the relevant market is (see below) and, at least in part, on the issue of timing (see below).
A Limiting Principle. The Court looked for a limiting principle in the government's position--one that would distinguish the parade of horribles offered by the Justices, including everything from the government requiring us all to eat broccoli to the government requiring us all to buy cell phones to use for emergencies. SG Verrilli came back with limiting principles distinguishing these examples, and Justice Kennedy seemed genuinely interested in them (or at least in hearing the states' responses to them).
The Relevant Market. The Court spent considerable time on the familiar arguments about the relevant market--is Congress regulating the market for health insurance, or the market for health care (or health care payment)? If the former, opponents argue that Congress is requiring something of people not yet in the market, and thus exceeding its authority under the Commerce Clause. Chief Justice Roberts and Justice Kennedy both seemed open at least to hearing the government's argument that the minimum coverage requirement regulates the market for health care (not health insurance).
Timing. Timing was an issue--whether Congress could regulate substantially before a person enters the market for health care, or whether Congress could only regulate at the point of entry, when, e.g., a person goes to the emergency room. Everyone seemed to agree that Congress could regulate at the point of entry; the question is how far before that Congress can regulate--and whether the Commerce Clause has anything at all to say about this.
Congressional Creation of the Market (and the Problem). Some expressed some concern that Congress created the interstate market and the very problem that it sought to address through the minimum coverage requirement by mandating that providers give free care to indigents. Even if this is so, however, it's not clear, as Justice Breyer noted, why this would be a constitutional problem: Congress creates interstate markets all the time.
Part of a Package. The Court gave some attention to the government's argument that the minimum coverage requirement was necessary to make the guaranteed issue and community rating provisions work--an argument that draws on Gonzales v. Raich. Opponents argued that Congress could have enacted these provisions without the minimum coverage provision; the government said that would have been ineffectual.
Policy. There were a couple exchanges on pure policy, in particular other ways that Congress might have achieved its goals. This shouldn't have any bearing on the constitutional question: congressional authority doesn't require something like a least-restrictive-means analysis. If these exchanges should translate into constitutional law, however--if, e.g., the Court looks to alternatives to show why the minimum coverage provision exceeds congressional authority--the result could tighten congressional authority in general along the lines of a least-restrictive-means test. This would mark an important change in the level of deference the Court usually gives to Congress in areas of congressional authority.
The Court spent more time on the Commerce Clause than on the taxing authority, but that's perhaps not a surprise. The Justices' leanings didn't seem to change whether the questioning went to the Commerce Clause or to the taxing authority.
"Joe the Plumber," as Samuel Joseph Wurzelbacher (pictured left) became known, gained public exposure when he interacted with Presidential Candidate Obama in October 2008 and later endorsed the Republican Candidate John McCain. Wurzelbacher, a resident of Ohio, alleged that state officials accessed state databases to retrieve information about him, including his child support and unemployment records.
In its opinion in Wurzelbacher v. Jones-Kelley, the Sixth Circuit affirmed the district judge's judgment on the pleadings in favor of the defendants.
On his First Amendment retaliation claim, Wurzelbacher failed to meet the standard requiring allegations that:
(1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.
The Sixth Circuit found that Wurzelbache's general claims of emotional distress caused by his knowledge that databases had been searched for his name was inadequate to allege the necessary adverse action. Importantly, any information gleaned from the database searches was never disclosed. Even if this was an "adverse action," it was not the kind of action that would deter a "person of ordinary firmness" from continuing to speak.
Wurzelbacher similarly failed to allege sufficient facts for a violation of his Fourteenth Amendment informational privacy rights. For the Sixth Circuit, these informational privacy rights must meet the substantive due process standard that “the interest at stake relates to those personal rights that can be deemed fundamental or implicit in the concept of ordered liberty.”
Wurzelbacher may not be a trail-blazing opinion, but it does demonstrate the lack of constitutional remedy for state officials "doing research" on a person who has come to their attention for political reasons.
[image: Samuel Joseph Wurzelbacher, circa 2008, via]
Cambridge University Press released its inaugural issue of Global Constitutionalism, or GlobCon, the new interdisciplinary journal addressing global issues at the intersection of law and politics. The inaugural issue is available free on-line here.
Here's a list of articles, with links to abstracts (which link to full texts):
Antje Wiener, Anthony F. Lang, Jr., James Tully, Miguel Poiares Madura, and Mattias Kumm, Global Constitutionalism: Human Rights, Democracy, and the Rule of Law
Jonathan Havercroft, Was Westphalia "All That"? Hobbes, Bellarmine, and the Norm of Non-Intervention
For those hoping to get an idea of where the Court is heading with the core constitutional issues in the ACA challenge, yesterday's oral arguments on the Anti-Injunction Act must have been a disappointment. The Court yesterday drilled into the finer points of tax law--in particular, arguments whether the AIA is jurisdictional and, if so, whether it applies--but it gave few, if any, clues on the con law issues that will dominate oral argument today and tomorrow. Yesterday's argument did suggest this, though: The Court will get to the merits now, and not punt based on the AIA.
The audio file and transcript are available here.
Justice Alito got right to a main con law point with SG Verrilli, asking how the government can consider the tax penalty a non-tax for AIA purposes but a tax for Article I purposes:
Justice Alito: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax [to support the universal coverage provision of the ACA].
Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
General Verrilli: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today.
Tomorrow the question is whether Congress has authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.
It's not clear whether this concern about the government's position on the tax penalty will have any constitutional traction today, however. There's no requirement that a "tax" for taxing authority purposes must also be a "tax" for every other purpose. The government's position may seem at odds with itself, but it probably doesn't matter for any constitutional reason.
Other Justices asked about those subject to the universal coverage requirement, but exempt from the tax penalty, particularly the poor, suggesting that the taxing authority alone isn't enough to support the universal coverage requirement for this population. Several Justices were interested in whether the universal coverage requirement could be separated from the tax penalty, apparently setting up a line of inquiry today about whether the Commerce Clause alone could support the universal coverage provision for this population. Again, though, it's not clear how much this will matter for arguments today: The Commerce Clause has always been a potentially independent authority--maybe even the best authority--to support the universal coverage provision for every population.
The Court asked some questions about whether the tax penalty raised revenue. This line is almost certainly more important for AIA purposes than for taxing authority purposes, though. And in any event, as SG Verrilli reminded the Court, the CBO has projected that the tax penalty will raise revenue.
Finally, Justice Sotomayor asked a line of questions about state standing to challenge the universal coverage provision. This line may come back today, but it's not clear from the brief exchange (on page 72 of the transcript) that it will get much play.
In short, argument yesterday gives few clues about the con law issues on display today and tomorrow. At most, we have some likely themes for arguments today and tomorrow. And we almost certainly have this: The Court is likely to address the merits now, and not punt under the AIA.
March 27, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Monday, March 26, 2012
The Supreme Court ruled on Monday in Zivotofsky v. Clinton that the political question doctrine does not bar judicial review of the constitutionality of a federal statute that requires the Secretary of State to designate "Israel" as the country of birth for a U.S. citizen born in Jerusalem who requests such designation. We previewed the case here, and we reviewed the oral argument here.
The ruling dodges the significant underlying separation-of-powers question over which branch has authority to designate the country of birth on a U.S. passport--at least for now. The Court remanded the case for consideration of this issue; it is sure to return.
The case pits State Department regs forbidding the designation of Israel as the country of birth for a U.S. citizen born in Jerusalem against a federal statute that requires such designation--in short, whether the President or Congress has authority to specify the country of birth on a U.S. passport for a U.S. citizen born in Jerusalem. Here, this power also implicates U.S. foreign policy, because the designation would be seen as taking sides in the Israeli-Palistinian conflict. Complicating things, President George W. Bush issued a signing statement on the legislation, Section 214(d) of the Foreign Relations Authorization Act, saying that it unconstitutionally interferes with the President's foreign affairs powers. (The constitutionality of the signing statement, however, wasn't before the Court.)
The D.C. Circuit ruled that the case raised a nonjusticiable political question--the President's authority to recognize foreign sovereigns--and affirmed its dismissal.
The Supreme Court reversed. Chief Justice Roberts wrote for the Court that the case merely involved the constitutionality of a federal statute--"a familiar judicial exercise"--and did not require the courts to intervene in or to set foreign policy. This didn't make the case easy, but it did make it appropriate for judicial review. The Court remanded the case to get the lower courts' best thinking on the merits before the case inevitably comes back to it.
Justice Sotomayor wrote a concurrence joined in part by Justice Breyer, and Justice Alito wrote a concurrence. Justice Breyer was the lone dissenter, arguing that the case was a political question because it may well require the Court to evaluate foreign policy considerations, because there are no strong reasons for judicial review, and because the political branches can work it out on their own.
The ruling sends the case back to the lower courts for consideration on the merits. But this important separation-of-powers case is almost certain to come back to the high Court.
March 26, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
In a much anticipated decision, the Court of Appeal for Ontario has just rendered its opinion in Canada (Attorney General) v. Bedford, 2012 ONCA 186 regarding constitutional challenges to commercial sex.
Note that to a large extent - - - or at least much larger than in most of the U.S. - - - Canada has decriminalized commercial sex. At issue in Bedford is the constitutionality of three provisions of the Criminal Code which "form the core of Parliament's response to prostitution:"
1. Section 210, which prohibits the operation of common bawdy- houses. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;
2. Section 212(1)(j), which prohibits living on the avails of prostitution. This prevents anyone, including but not limited to pimps, from profiting from another's prostitution; and
3. Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. This prevents prostitutes from offering their services in public, and particularly on the streets.
The constitutional challenges were based on the Canadian Charter of Rights and Freedoms. Specifically, §7 provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice
and §2(b) provides:
Everyone has the following fundamental freedoms: ...
(b) freedom of ... expression
Section 1 of the Charter is the limiting (or balancing) provision providing that the Charter
guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.....
In a closely reasoned, well-organized, and lengthy opinion, the Court of Appeal for Ontario reached disparate conclusions.
The provincial high court held Section 210 regarding the operation of bawdy houses unconstitutional, but suspended the declaration of invalidity to allow Parliament to redraft the provision.
The court held that Section 212(1)(j) should be interpreted to save its constitutionality, by including words of limitation so that it applies "only to those who live on the avails of prostitution in circumstances of exploitation."
Over two dissents in an otherwise unanimous opinion, the court upheld the constitutionality of criminalizing "communicating for the purpose of prostitution in public."
Sure to elicit much commentary (initial reports here, here & here) and perhaps appeal to the Supreme Court of Canada, this opinion is of obvious import to Canadian constitutional scholars, but also merits a great deal of attention from ConLawProfs south of the border.
[image: ceiling in Osgoode Hall, Court of Appeal for Ontario, via]
Sunday, March 25, 2012
Fifth Circuit En Banc: No Constitutional Liability for School's Allowing Nonauthorized Adult Access to Nine Year Old During School Day Leading to Sexual Assault
It happened more than once.
Six times, according to the complaint's allegations. The school allowed a man to "check out" the nine year old Jane Doe from school and return her later in the day on six separate occassions, simply signing her out as her father, and once as her mother. The man was not on the "permission list," was not related to Jane Doe, and the school employees did not ask for any identification or check the "permission list." The man took Jane from school, sexually molested her, and then returned her to school.
On these horrific facts, a panel of the Fifth Circuit in Doe v. Covington County School District found that the special relationship test of DeShaney v. Winnebago County, 489 U.S. 189 (1989) was met. As we discussed last August, that panel holding was over a vigorous dissent by Judge Carolyn Dineen King.
In the en banc opinion Judge King wrote for a majority of the court, vindicating her previous dissenting opinion.
King's opinion for the en banc Fifth Circuit takes a formal tone and expresses little sympathy for Jane Doe. The en banc opinion seems to brook no possibility that DeShaney can be overcome in a public school system. Indeed, the outrage of the Judges who joined the majority seems to be reserved for the possibility of any other view. As Judge Jolly stated, concurring:
There is no room–not an inch–for confusion. The law yesterday and today is bare and bald: No DeShaney special relationship exists between a public school and its
students. Absent a special relationship, any analysis of the defendant’s conduct
as deliberately indifferent to the rights of the student is, under DeShaney, irrelevant.
No further panel of this court should require us to iterate these clear
statements of the law a fourth time.
The en banc opinion explained this view:
When a state incarcerates a prisoner, institutionalizes a mental health patient, or places a child in foster care, the state knows that it has restricted the individual’s liberty and rendered him unable to care for his basic human needs. When a school employee carelessly fails to ensure that an adult is authorized to take an elementary student from the school, no state actor has knowledge that the school has thereby restricted the student’s liberty, because the adult taking the student from school may or may not be authorized.
Jane Doe's age is irrelevant: "No matter the age of the child, parents are the primary providers of food, clothing, shelter, medical care, and reasonable safety for their minor children. Thus, school children are returned to their parents’ care at the end of each day, and are able to seek assistance from their families on a daily basis, unlike those who are incarcerated or involuntarily committed."
The en banc court also looked to the state-created danger test, noting that the Fifth Circuit had not adopted the test and even if it had, the complaint's allegations would not make out such a claim: "they do not demonstrate the existence of “an immediate danger facing a known victim,” but only the school's awareness of some "general deficiencies in the check-out policy" for students. Again stressing that the problem was the school's check-out policies rather than what happened between the time Jane Doe was checked out and checked back into school, the Fifth Circuit en banc opinion held there was no "shocks the conscience" claim.
Judges Weiner and Dennis, who wrote the majority panel opinion, were the sole dissenters from the en banc opinion. They stressed Jane Doe's age as well as the fact that the incidents occurred during the school day, rather than at the end: "the majority never addresses just what it is that Jane’s parents conceivably could have done, or should have done, to safeguard her in this situation."
The en banc majority opinion's concluding paragraph states its holding in stark terms while purporting to provide some legal alternative:
In affirming the dismissal of the Does’ complaint, we do not suggest that
schools have no obligation to insure that their students remain safe from acts of
private violence. State law provides the appropriate legal framework to address
Jane’s injury. The question we have addressed is simply whether the school’s
failure to check Keyes’s [the molester's] identity and be certain that he was authorized to take Jane amounted to a constitutional violation. Supreme Court precedent, our precedent, and the decisions of every other circuit to address the special relationship exception compel this court to conclude that it does not. In addition, neither the state-created danger theory nor municipal liability provides a viable basis for recovery.
[image: A School Girl by Myles Birket Foster via]
The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.
At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000). Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.” HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds.
Only two organizations bid for the role of “independent contractor,” both of which are religious organizations. The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB). This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.” This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility. It stated it would require an assurance form all subcontractors regarding compliance.
Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million.
The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.
On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.
On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.” The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.” Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.
Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion:
“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.” That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.
The case is sure to be appealed.