Friday, August 28, 2015
In its substantial opinion in Hodge v. Talkin, a panel of the United States Court of Appeals for the DC Circuit upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza.
40 USC §6135 provides:
It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.
Recall that almost two years ago, district judge Beryl Howell had found the statute unconstitutional in a well-reasoned and extensive opinion. Judge Howell's ruling prompted the United States Supreme Court to swiftly respond by promulgating a new regulation that seemingly responded to at least some of the more problematical examples that Judge Howell identified such as preschoolers wearing a tee-shirt. However, the DC Circuit's opinion reverses Judge Howell's decision without reliance on the limitations in the new policy.
Writing for a unanimous panel, Judge Sri Srinivasan notes that the United States Supreme Court's decision in United States v. Grace (1983) left the constitutional status of the plaza, when it decided that the sidewalks surrounding the perimeter of the Supreme Court building are public forums. However, Srinivasan relies on Grace for the distinction between the plaza and the sidewalks to conclude that the plaza is a nonpublic forum:
In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” [Grace.; Id. at 183.]. The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court’s Front Entrance, 2009 J. Sup. Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court’s plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.
The opinion devotes attention to architectural description, which it admits in one case has "perhaps" a "degree of romanticism," and also likens the public forum characterization of the Supreme Court plaza to "the treatment of courthouses more generally" and to the controversial Lincoln Center plaza case; interestingly now-Justice Sotomayor was a judge on that panel.
As a nonpublic forum subject to the "lenient" First Amendment standard of reasonableness, the DC Circuit has little difficult in finding that the statute is "reasonable." Interestingly, the United States Supreme Court's closely divided opinion last Term in Williams-Yulee v. The Florida Bar occupies a prominent role in this reasoning. The opinion is discussed numerous times to support a conclusion that the government interests put forward here - - - "the decorum and order befitting courthouses generally and the nation’s highest court in particular" and "the appearance and actuality of a Court whose deliberations are immune to public opinion and invulnerable to public pressure" - - - are both valid and being appropriately served. Essentially, the DC Circuit's opinion embraces the "judiciary is special" sentiment and correctly notes that this prevailed in the strict scrutiny context of Williams-Yulee, so should suffice under the reasonableness standard.
The DC Circuit's opinion similarly rejects the overbreadth and vagueness arguments that the statute is unconstitutional.
In essence, the DC Circuit finds the inclusion of the "grounds" in the statute as a place where assembly or "display" of opinion can be prohibited is appropriate line-drawing:
In the end, unless demonstrations are to be freely allowed inside the Supreme Court building itself, a line must be drawn somewhere along the route from the street to the Court’s front entrance. But where? At the front doors themselves? At the edge of the portico? At the bottom of the stairs ascending from the plaza to the portico? Or perhaps somewhere in the middle of the plaza? Among the options, it is fully reasonable for that line to be fixed at the point one leaves the concrete public sidewalk and enters the marble steps to the Court’s plaza, where the “physical and symbolic pathway to [the] chamber begins.” [citation to architectural work]
While the odds are increasingly low that the United States Supreme Court will accept any case on certiorari, the odds seem to approach nil that the Court will exercise its discretion to review this opinion.
Thursday, August 27, 2015
The Sixth Circuit's brief Order in Miller v. Davis refused to stay the district court's preliminary injunction mandating that a court clerk in Kentucky issue same-sex marriage licenses (or any marriage licenses) despite her claim of free exercise of religion.
Here's the essence of the Sixth Circuit panel opinion:
The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.
This should be the end of this litigation?
Sunday, August 23, 2015
Judge Amit Mehta (D.D.C.) on Friday granted a reporter's motion to quash a subpoena by a drug manufacturer for non-confidential information related to the reporter's article recounting a critical study on one of the manufacturer's cancer drugs. (This was a bit piece of a larger shareholder class-action against the manufacturer, Amgen.)
The ruling applied the reporter's privilege under the First Amendment to non-confidential information in a civil suit. That part of the ruling aligns with other circuits that have ruled on the issue, even though the D.C. Circuit has yet to rule on it.
Judge Mehta also concluded that Amgen did not sufficiently seek the information through other sources before it issued its subpoena to reporter Paul Goldberg.
Wednesday, August 19, 2015
In its opinion on rehearing, a divided panel of the DC Circuit in National Association of Manufacturers v. Securities and Exchange Comm'n has held that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring a company to disclose if its products were not "DRC conflict free" violated the First Amendment.
In its previous decision more than a year ago in National Association of Manufacturers (NAM), a majority of the same panel, in an opinion authored by Senior Judge Raymond Randolph and joined by Senior Judge David Sentelle, found the conflict mineral disclosure was a First Amendment violation. In that 2014 opinion, Judge Srinivasan dissented on the First Amendment issue and contended that this opinion should be held in abeyance "pending the en banc court’s decision" in American Meat Institute v. United States Dep't of Agriculture, regarding a First Amendment challenge to requiring country of origin labeling (COOL) of meat and meat products. In the DC Circuit's en banc opinion a year ago, a divided court upheld the constitutionality of the COOL requirements. The rehearing of the conflict minerals disclosure was prompted by that intervening en banc decision in American Meat Institute (AMI). The panel majority essentially concluded that its mind was not changed by en banc opinion. [Neither of the senior judges in the panel majority participated in the en banc opinion in AMI].
Central to the controversies in both NAM and AMI is a choice of precedent: should the constitutionality of the labeling requirements be analyzed under Zauderer v. Office of Disciplinary Counsel or under the more demanding standard of Central Hudson v. Gas & Electric Corp. v. Public Service Commission of New York. The DC Circuit's divided en banc opinion in AMI found that Zauderer should be applied. In this rehearing in NAM, the panel majority (again) found that Zauderer had no applicability, but, as the opinion states, "for a different reason." However, in sum this panel majority found that Zauderer is limited to "advertisements" at point of sale and seemed to contradict AMI.
The panel majority did "hedge its bets":
But given the flux and uncertainty of the First Amendment doctrine of commercial speech,15 and the conflict in the circuits regarding the reach of Zauderer, we think it prudent to add an alternative ground for our decision. It is this. Even if the compelled disclosures here are commercial speech and even if AMI’s view of Zauderer governed the analysis, we still believe that the statute and the regulations violate the First Amendment.
In applying Central Hudson, the panel majority found that the disclosure of conflict minerals has a merely speculative relationship to addressing the interest of the government in ameliorating conflict in the Democratic Republic of the Congo as a source of such minerals. Instead, the disclosure is akin to political propaganda. The majority interestingly cites George Orwell's Nineteen Eighty-Four for its passages regarding government redefinition ("WAR IS PEACE"), and concludes that the disclosure is not only not factual but also controversial: it compels "an issuer to confess blood on its hands."
In dissent, Judge Srinivasan argues that any Scarlet Letter comparison is inapt: "requiring a company to disclose product information in the commercial marketplace is not the same as requiring Hester Prynne to “show [her] scarlet letter in the [town] market- place.” He asserts that the majority is misreading Zauderer and that the en banc opinion in AMI controls. Interestingly, he also contends that to the extent the court is requiring "proof" that disclosure of conflict minerals be linked to amelioration of the DRC conflict, the court should be deferring to executive judgments in this commercial context at least as much as the Court did in the political speech context involved in Holder v. Humanitarian Law Project.
It seems likely that government attorneys are preparing its en banc petition.
Tuesday, August 18, 2015
A few months after the United States Supreme Court issued its decision in Obergefell v. Hodges, reversing the Sixth Circuit's opinion, and declaring that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the issue of same-sex marriage is again reaching the Sixth Circuit.
This time, however, the issue is whether a government employee, a court clerk in Kentucky, can refuse to issue same-sex marriage licenses - - - or any marriage licenses - - - based upon a claim of free exercise of religion. The claim of religious exemptions from state clerks is not new (consider events in New York in 2011); neither are objections to implementing the Court's decision in Obergefell (consider events in Alabama this summer). Nevertheless, this controversy has become particularly focused.
United States District Judge David Bunning's Opinion and Order last week in Miller v. Davis issued a preliminary injunction in favor of April Miller and Karen Roberts, enjoining Rowan County Clerk Kim Davis from applying the "no marriage licenses" policy. The Judge rejected Davis' First Amendment claims. First, Judge Bunning found that Governor Beshear's directive to county clerks to issue same-sex marriage licenses was a general law of neutral applicability that "likely does not infringe on Davis' free exercise rights." Second, Judge Bunning further found that the issuance of the marriage license did not implicate Davis' free speech rights: the issuance of the license, even with the clerk's certification, is not an endorsement and furthermore is quite possibly government rather than individual speech, citing the Court's decision in Walker v. Sons of Confederate Veterans from last Term. Judge Bunning also rejected Davis' third - and perhaps the most interesting - claim based upon Article VI §3 prohibiting a "religious Test" as a qualification for public office. Davis argued that this prohibition meant that her religious beliefs must be accommodated. Even as he rejected this interpretation, Judge Bunning drew attention to the "first half" of Article VI §3 requiring state officials to take an oath to defend the United States Constitution.
Davis predictably sought a stay of the preliminary injunction. In an Order late yesterday, Judge Bunning denied the stay, including in his 7 page opinion an extensive quote from Obergefell regarding the relationship of religious freedom to same-sex marriage. Yet Judge Bunning did stay the order denying the stay:
in recognition of the constitutional issues involved, and realizing that emotions are running high on both sides of the debate, the Court finds it appropriate to temporarily stay this Order pending review of Defendant Davis’ Motion to Stay (Doc. # 45) by the Sixth Circuit Court of Appeals.
While decisions to stay and to issue preliminary injunctions involve equitable and other factors, of central prominence is the probable outcome on the merits. Thus, the Sixth Circuit is again poised to consider, albeit less directly, the issue of same-sex marriage.
Thursday, August 6, 2015
In an over 50 page decision in Salaita v. Kennedy, United States District Judge Harry D. Leinenweber largely denied the University of Illinois Defendants' Motion to Dismiss the compliant filed by Steven Salaita regarding his employment at the university. Recall that last August, University of Illinois at Urbana-Champaign officials rescinded the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza. Recall also that in January, Salaita filed a nine count complaint including constitutional claims of First Amendment and procedural due process violations.
Judge Leinenweber's decision does grant the motion to dismiss with regard to a few state law claims, but allows the constitutional claims and the breach of contract and promissory estoppel claims to proceed. (ContractsLawProfs might be interested in the judge's analysis of the contract claim, including his conclusion that if this were not a contract it would "wreak havoc" on academic hiring and that the university is essentially seeking a "get-out-of-contract-free card.")
The judge's analysis of the procedural due process claim flows from the contract claim. The university argued that Salaita had no sufficient "property interest" to entitle him to due process because there was no contract. Having found a sufficient contract claim, the judge finds the procedural due process claim sufficiently pleaded.
On the First Amendment claim, the judge rejected the university's argument is that its action was not motivated by the content or viewpoint of Dr. Salaita’s tweets, and that even if it was, its interest in providing a disruption-free learning environment outweighs Dr. Salaita’s free speech interest under the balancing test in Pickering v. Board of Education (1968).
The first part of the argument is premature; summary judgment or trial will reveal the University’s actual motivation, but the facts viewed in Dr. Salaita’s favor amply support a claim that the University fired Dr. Salaita because of disagreement with his point of view. The University’s attempt to draw a line between the profanity and incivility in Dr. Salaita’s tweets and the views those tweets presented is unavailing; the Supreme Court did not draw such a line when it found Cohen’s “Fuck the Draft” jacket protected by the First Amendment. Cohen v. California (1971).
Additionally, the judge noted that even if he were to engage in Pickering balancing at this stage, the facts conflict as to whether actual disruption would have occurred.
Interestingly, the judge's rationale for granting the motion to dismiss as to the complaints counts six and seven rely on First Amendment grounds. In these counts, the complaint alleged tortious interference by unnamed donors who threatened to withdraw support should Salaita teach at the university. Judge Leinenweber concluded that the donor defendants had a First Amendment right to express their displeasure, even through a quid pro quo threat: "The First Amendment is a two-way street, protecting both Dr. Salaita’s speech and that of the donor Defendants."
Finally, Judge Leinenweber rejected the university's argument that its officials and itself were entitled to Eleventh Amendment immunity, noting that the difficult issue regarding whether the university board is an arm of the state is irrelevant since Saliata is requesting injunctive relief. The judge resolves the more perplexing state law immunity issue, under the Illinois Court of Claims Act, also in favor of Salaita.
In sum, this is an important victory for Professor Salaita as this closely-watched litigation continues.
Monday, August 3, 2015
Chief Judge B. Lynn Winmill for the United States District of Idaho today held Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042, unconstitutional in his opinion in Animal Defense League v. Otter. Judge Winmill found that the law violated both the First Amendment and the Equal Protection Clause.
The Idaho statute creates a new crime, “interference with agricultural production.” I.C. 18-7042. A person commits the crime of interference with agricultural production if the person knowingly:
(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .
(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial
process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations; or
(e) Intentionally causes physical damage or injury to the agricultural production facility's operations, livestock, crops, personnel, equipment, buildings or premises.
Chief Judge Winmill described the legislative history including statements that compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.” However, for Winmill, there is a better comparison:
The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating exposé of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act. National Meat Ass'n v. Harris, 132 S.Ct. 965 (2012). Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.
On the First Amendment challenge, the judge found that Idaho's ag-gag statute is content based and merits strict scrutiny. The opinion revisits an earlier ruling so concluding to reiterate that the United States Supreme Court's opinion in United States v. Alvarez ("the stolen valor case"). Judge Winmill notes that any deception involved in the ag-gag violation would be not be harmful: "the most likely harm that would stem from an undercover investigator using deception to gain access to an agricultural facility would arise, say, from the publication of a story about the facility, and not the misrepresentations made to gain access to the facility." And "harm caused by the publication of true story is not the type of direct material harm that Alvarez contemplates." The judge also held that the recording provision is content-based.
Moreover, Judge Winmill implicitly determines that the law is viewpoint-based:
a review of § 18-7042’s legislative history leads to the inevitable conclusion that the law’s primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.
Not surprisingly, the statute does not survive strict scrutiny. The judge is skeptical that the "property and privacy interests of agricultural production facilities" are sufficiently compelling given that food production is a heavily regulated industry. Even if the interests were compelling, however, the statute was not narrowly tailored:
Criminal and civil laws already exist that adequately protect those interests without impinging on free-speech rights. It is already illegal to steal documents or to trespass on private property. In addition, laws against fraud and defamation already exist to protect against false statements made to injure or malign an agricultural production facility.
The judge thus concludes that the law restricts more speech than is necessary to achieve its goals.
On the Equal Protection Clause issue, the court's conclusion does not depend on a strict scrutiny analysis. The judge finds that the ag-gag statute cannot satisfy even rational basis review. First, Judge Winmill finds that that state's purported interest is not legitimate:
The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.
Second, the judge finds that the actual interest is a “a bare congressional desire to harm a politically unpopular group" and thus "cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything,” quoting and relying on U. S. Dept. of Agriculture v. Moreno (1973). "As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage" of the statute.
Judge Winmill's decision is ground-breaking. So-called "ag-gag" laws have proliferated and are being challenged, usually on First Amendment grounds. Undoubtedly the state will appeal and the Ninth Circuit will have a chance to decide whether Judge Winmill was correct that the Idaho law is similar to the day labor solicitation prohibition in Arizona's SB1070 that the Ninth Circuit held unconstitutional in Valle Del Sol Inc. v.Whiting.
UPDATE: Check out this analysis by ConLawProf Shaakirrah Sanders over at casetext and her pre-decision discussion about the case with Idaho Public Radio.
Thursday, July 30, 2015
Judge Sidney Stein (SDNY) this week denied Citizens United's motion to preliminarily enjoin the New York Attorney General from enforcing his policy of requiring registered charities to disclose the names, addresses, and total contributions of their major donors.
The ruling, which follows a similar Ninth Circuit ruling this past spring, is a blow to the organization's efforts to keep their donors secret through the 501(c) form. But it does not mean that Citizen United's donors will be available to all of us: both the IRS and the state AG refuse to disclose the names of donors.
The case tests the AG's rule that charities registered in the state provide to the state AG their Schedule B to IRS Form 990. Schedule B includes names of persons who donate over $5,000 to a charity. Citizens United, a 501(c) organization, challenged the rule, arguing that it violated free speech, and due process, among other claims, and filed for a preliminary injunction.
Judge Stein rejected the motion, saying that Citizens United was unlikely to win on the merits. As to the free speech claim, Judge Stein wrote that the AG's rule bears a substantial relation to the sufficiently important government interest in enforcing charitable solicitation laws and protecting state residents from illegitimate charities, and that the strength of the state's interest justified the minimal burden on the organization. Judge Stein also concluded that the rule was not an unconstitutional prior restraint on speech, because the rule "sets forth 'narrow, objective, and definite standards' that cabin the Attorney General's exercise of discretion.'" Finally, Judge Stein rejected Citizens United's claim that the rule came without warning and thus violated due process, because in fact the rule did nothing new. (Judge Stein also rejected the non-constitutional claims.)
But while Judge Stein's ruling rejected Citizens United's motion to stop the state AG from enforcing the rule for now, nothing in the ruling compels the public release of the organization's major donors. Indeed, the ruling hinges on the fact that New York law and IRS regs both bar the public release of Schedule B. The ruling only allows the state AG to collect this information for the purpose of ferreting out charitable fraud and related crimes.
Saturday, July 18, 2015
The Wisconsin Supreme Court ruled this week that a special prosecutor's reading of Wisconsin's campaign finance rules in the investigation into illegal coordination between "independent" organizations and Governor Scott Walker's campaign violated the First Amendment. The ruling ends the investigation into the alleged coordination. It also opens the spigot for coordinated expenditures between outside organizations and campaigns on all but express advocacy for the election or defeat of a particular candidate.
The special prosecutor alleged that that the Walker campaign coordinated with outside organizations on issue advocacy in the recall elections related to Wisconsin Act 10, the bill that sharply curtailed public sector union rights in Wisconsin. In particular, the prosecutor alleged that the coordination was so extensive that the outside organizations became subcommittees of Walker's campaign under Wisconsin law, and that the outside organizations' coordinated issue advocacy amounted to a contribution to the Walker campaign--all in violation of Wisconsin law.
But all this turned on whether the advocacy was for "political purposes." Wisconsin law defines "political purposes" as an act
done for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, for the purpose of payment of expenses incurred as a result of a recount at an election, or for the purpose of influencing a particular vote at a referendum. . . .
(a) Acts which are done for "political purposes" include but are not limited to:
1. The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.
In short, the special prosecutor claimed that the coordination was for "political purposes," and therefore illegal.
The Wisconsin Supreme Court ruled that the definition of "political purposes" (and, in particular, the phrase "influencing [an] election") was unconstitutionally vague and overbroad, in that it potentially banned coordination on issue advocacy (and not just express advocacy for the election or defeat of a candidate). "The lack of clarity in [the definition], which the special prosecutor relies on, leads us to the unsettling conclusion that it is left to the government bureaucrats and/or individual prosecutors to determine how much coordination between campaign committees and independent groups is "too much" coordination." The court gave the definition a narrowing construction that limited the definition of "political purposes" to include only express advocacy for the election or defeat of a candidate (and not issue advocacy).
The opinion drew a sharp dissent, which argued that the ruling limited the state's campaign finance regulations beyond what the Supreme Court required and, in doing so, opened up a free-for-all on spending and coordination between "independent" groups and campaigns on issue advocacy.
According to the United States Court of Appeals for the Seventh Circuit, no opinion of the United States Supreme Court or a federal court of appeals has established that the First Amendment forbids regulation of, or inquiry into, coordination between a candidate's campaign committee and issue advocacy groups. In repeatedly and single-mindedly declaring a rule that federal case law has declined to adopt, the majority opinion betrays its results-oriented, agenda-driven approach.
Tuesday, July 14, 2015
The Tenth Circuit today rejected statutory and First Amendment challenges to HHS's religious accommodation to its contraception mandate under the Affordable Care Act. We most recently posted on the issue, in the Notre Dame case in the Seventh Circuit, here.
The plaintiffs in the case--Little Sisters of the Poor, Southern Nazarene, and Reaching Souls--argued that the HHS requirement that they notify their health insurance providers, third party insurers, or HHS (with a simple letter) in order to get out from under the contraception mandate violated the Religious Freedom Restoration Act, free exercise and establishment of religion, and free speech.
The Tenth Circuit rejected the claims. In a lengthy opinion that comes with its own glossary and table of contents, the court ruled that it wasn't the plaintiffs' accommodation (the notification of their objection) that triggered the provision of contraceptions; it was the law. (Judge Posner arrived at the same conclusion with more colorful language in the Notre Dame case.) Given this, there was no substantial burden on religion under RFRA. Moreover, the court said that the accommodation met rational basis review under the Free Exercise Clause, that it didn't discriminate between religions and religious organizations in violation of the Establishment Clause, and that the accommodation didn't amount to compelled speech under the First Amendment.
Tuesday, July 7, 2015
In its opinion in Arce v. Douglas, a panel of the Ninth Circuit has found that Arizona's so-called anti-ethnic studies statute suffers from constitutional infirmities.
A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:
1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.
In 2013, Judge Wallace Tashima, who was sitting by designation as district judge, ruled on the First Amendment and Fourteenth Amendment challenges to the statute, substantially upholding the statute but finding subsection (3) was unconstitutional under the First Amendment, but severable from the remainder of the statute.
Today's Ninth Circuit opinion - - - authored by New York District Judge Jed Rakoff sitting by designation, and joined in full by Judge Noonan, with a partial concurrence and dissent by Judge Richard Clifton - - - affirmed the district court’s rulings that § 15- 112(A)(3) is unconstitutional in violation of the First Amendment but severable from the rest of the statute; that §§ 15-112(A)(2) and (A)(4) are not overbroad in violation of the First Amendment; and that §§ 15-112(A)(2) and (A)(4) are not vague in violation of the Due Process Clause. However, the appellate panel found fault with the sua sponte grants of summary judgment - - - both on the equal protection claim and on a First Amendment viewpoint discrimination claim.
As to the equal protection claim, the Ninth Circuit concluded that subsections (3) and (4), while not facially discriminatory, raised constitutional issues because of evidence of their discriminatory purpose in enactment or enforcement. The Ninth Circuit remanded the issue to be considered by the district court in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:
- (1) the impact of the official action and whether it bears more heavily on one race than another;
- (2) the historical background of the decision;
- (3) the specific sequence of events leading to the challenged action;
- (4) the defendant’s departures from normal procedures or substantive conclusions; and
- (5) the relevant legislative or administrative history.
The majority discussed the factors and the evidence, finding that there was sufficient evidence to raise a genuine issue of material fact. Judge Clifton dissented on the procedural posture of the remand, arguing that the district court should be able to fully consider summary judgment.
On the other remanded issue - - - the First Amendment viewpoint discrimination claim - - - the Ninth Circuit did not preclude summary judgment, noting that the district judge "did not even review the evidence" on this issue.
As to the unconstitutionality of subsection (3) as violative of the First Amendment, the Ninth Circuit affirmed the district court. Interestingly, the Ninth Circuit stated:
The very danger we perceive was corroborated, at oral argument, when we asked counsel for defendants whether the statute could be found to prohibit a public school course in San Francisco on the topic of Chinese history that was open to all students but was designed in consideration of the substantial Chinese and Chinese American student population there that might benefit from a greater understanding of its history. Defendants asserted that the course could be found in violation. As indicated by this example, subsection (A)(3) threatens to chill the teaching of ethnic studies courses that may offer great value to students— yet it does so without furthering the legitimate pedagogical purpose of reducing racism.
However, the Ninth Circuit affirmed the district court's finding that the other sections of the statute survived the First Amendment challenges rooted in curricular decisions.
Thus, on remand, the state will need to show that its so-called anti-ethnic studies statute was not actually anti-people of certain ethnic identities.
The full D.C. Circuit today upheld the federal ban on government contractor political contributions to candidates and parties. The ruling is a significant victory for campaign finance regulation, and rebuffs a direct challenge to the core of the Court's First Amendment rule on political contributions. At the same time, the case also sets up a challenge to that core for potential Supreme Court review. (We posted previously on the case here.)
The case, Wagner v. FEC, involves a narrow issue: whether the federal ban on contributions to a candidate or a political party by an individual federal contractor violates the First Amendment. The en banc D.C. Circuit unanimously said no. The court applied the familiar "lesser but still 'rigorous standard of review'" that governs restrictions on contributions, and held that the government's interests in (1) avoiding corruption and the appearance of corruption and (2) protection against interference with merit-based public administration supported the ban. The court also ruled that the ban was sufficiently well tailored, and neither unconstitutionally over-inclusive nor under-inclusive, with respect to the two government interests.
The court's lengthy opinion detailed the history of pay-to-play, government responses to the problem of contractor corruption, and current problems with corruption. The self-consciously thorough ruling appears written to insulate it as much as possible from reversal at the Supreme Court and thus underscores the importance of the case.
The plaintiffs framed the case narrowly to directly take on the current lower-level test for political contributions (as opposed to independent political expenditures), and set up a test case to overturn that portion of Buckley v. Valeo that says that government must justify restrictions on contributions at only a lower level of scrutiny under the First Amendment. While today's ruling rebuffed that effort, this is almost surely just a bump in the road for the plaintiffs on the way to the Supreme Court--and their effort to get the Court itself to disavow the lower level of scrutiny (and apply strict scrutiny to contractor contributions), or at least rule that the government's ban on contractor contributions is too sloppy to withstand a lower level of review. Either way, if the Court bites, this could represent a serious challenge to government regulation of political contributions.
Thursday, July 2, 2015
After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration.
The situations in Alabama and Texas have been the most contentious.
ALABAMA: Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area. This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.
When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.
However, after the Court decided Obergefell, the Alabama Supreme Court's "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell. Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:
The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.
Thus, the officials of Alabama are subject to a direct order by a federal judge.
TEXAS: The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages. Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case." Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique: the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages.
The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott], "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed.
The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations.
In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution. This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states. The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity. While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.
July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)
Wednesday, July 1, 2015
Reports that Ku Klux Klan (KKK) members are considering a rally in Columbia, South Carolina to support the controversial display of the confederate battle flag evokes images of hooded persons in traditional KKK garb.
However, South Carolina, like many states, has an anti-masking statute, S.C. 16-7-110, which provides:
No person over sixteen years of age shall appear or enter upon any lane, walk, alley, street, road, public way or highway of this State or upon the public property of the State or of any municipality or county in this State while wearing a mask or other device which conceals his identity. Nor shall any such person demand entrance or admission to or enter upon the premises or into the enclosure or house of any other person while wearing a mask or device which conceals his identity. Nor shall any such person, while wearing a mask or device which conceals his identity, participate in any meeting or demonstration upon the private property of another unless he shall have first obtained the written permission of the owner and the occupant of such property.
As I've discussed in Dressing Constitutionally, such statutes, sometimes known as anti-KKK statutes, have been upheld against First Amendment challenges.
For example, the similar Georgia statute, passed in 1951 and still in force, makes it a misdemeanor for any person who “wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” and is either on public property or private property without permission. In 1990, the Georgia Supreme Court in State v. Miller, 260 Ga. 669, 674, 398 S.E.2d 547, 552 (1990) upheld the statute against a First Amendment challenge by Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute itself. In addressing Miller’s argument that the statute was overbroad, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”
New York's anti-masking statute, which was not originally prompted by KKK activities but by land revolts before the Civil War, was also upheld against a challenge by the KKK. In 2004, the Second Circuit panel - - - including now United States Supreme Court Justice Sotomayor - - -decided Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 201 (2d Cir. 2004). The KKK group had sought an injunction against the statute to allow a demonstration while wearing masks. Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask in its analysis. In the court’s view, the mask was “redundant” and did “not convey a message independently of the robe and hood.” Moreover, the court opined that mask-wearing was not integral to the expression, but optional even amongst KKK members. Thus, while the KKK members had a First Amendment right to march, they did not have a First Amendment right to do so wearing their masks.
Should KKK members attempt to demonstrate while wearing their "regalia" that includes hoods that obscures their faces, the South Carolina masking statute - - - and its constitutionality - - - are sure to be in play.
July 1, 2015 in Association, Criminal Procedure, Current Affairs, Federalism, First Amendment, Fundamental Rights, History, Interpretation, Race, Reconstruction Era Amendments, Speech, Theory | Permalink | Comments (0)
Tuesday, June 30, 2015
Oklahoma Supreme Court Declares Ten Commandments Monument at State Capitol Unconstitutional Under State Constitution
In a relatively brief opinion today in Prescott v. Oklahoma Capitol Preservation Commission, Oklahoma's highest court found that a Ten Commandments monument on the Oklahoma Capitol grounds violated the state constitution, Article 2, Section 5, which provides:
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.
While the monument was a gift and no public funds were expended to acquire the monument, the court agreed that its placement on the Capitol grounds constituted the use of public property for the benefit of religion, emphasizing that the constitutional provision included the words “directly or indirectly.”
The court noted that the Legislature and Governor authorized the monument relying on the United States Supreme Court’s decision Van Orden v. Perry (2005), but noted that Van Orden was decided under the First Amendment’s Establishment Clause. Here, the Oklahoma Supreme Court interpreted the broader and more precise language of the Oklahoma state constitution. The Oklahoma Supreme Court’s opinion contained the requisite language insulating it from United States Supreme Court review under the adequate and independent state grounds doctrine so important to federalism:
“Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).”
Two justices dissented, without opinion.
The Supreme Court today agreed to hear Friedrichs v. Cal. Teachers Association, and certified the first question as "Should Abood be overruled?" The case is just the latest foray into the First Amendment challenges to union fair share dues requirements. The Court has been chipping away at this in its last few rulings. This case will likely mean the end of union fair share requirements under the First Amendment.
We've posted a lot on this issue (search the blog for "Abood"), most recently here.
Friday, June 26, 2015
In a closely-divided opinion, with the majority written by Justice Kennedy, the Court has decided that the Fourteenth Amendment requires states to license same-sex marriages in Obergefell v. Hodges. The opinion rests on both due process and equal protection grounds. The majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan - - - there are no concurring opinions - - - is less than 30 pages, plus 2 appendices including the citations of same-sex marriage opinions. Each of the four dissenting Justices - - - Chief Justice Roberts and Justices Scalia, Thomas, and Alito - - - wrote a separate dissenting opinion, with some joinders by other Justices.
The decision that the Fourteenth Amendment requires states to license same-sex marriages renders the second certified question regarding recognition irrelevant, as the discussion during oral arguments made clear.
Recall that the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans. There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.
[image Donkey Hotey]
On the due process issue, Kennedy's opinion for the Court concludes that the right to marry is fundamental because:
- the right to personal choice regarding marriage is inherent in the concept of individual autonomy, relying on Loving and Lawrence;
- it supports a two-person union unlike any other in its importance to the committed individuals, relying on Grsiwold, Rurner v. Safely, and Lawrence;
- to safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, relying on Pierce v. Society of Sisters and Windsor;
- Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order, relying on Maynard v. Hill (1888).
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Thursday, June 18, 2015
A unanimous Court, albeit with separate opinions, concluded that the extensive municipal signage regulations violated the First Amendment in Reed v. Town of Gilbert.
Recall from oral arguments that the town's regulations generally required a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.” The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.” Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral.
Reversing the Ninth Circuit, Justice Thomas, writing for the Court, concluded that the Sign Code was content-based and did not survive strict scrutiny. The Sign Code provision is content-based because, simply put, to determine if a sign is a "Temporary Directional Sign" one must determine whether the sign "conveys the message of directing the public" to an event. It does not matter, Thomas writes for the Court, that the content may seem neutral:
A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. *** In other words, an innocuous justification cannot transform a facially content- based law into one that is content neutral.
Once the Court decided there the regulation was subject to strict scrutiny, there was little doubt that the town would not be able to satisfy the standard. Thomas assumed that the proffered governments interests of aesthetics and traffic safety were compelling, but quickly determined that that the manner in which they were being served was far from narrowly tailored. Instead, the regulations were "hopelessly underinclusive."
The concurring opinions take on the issue raised in oral argument about the constitutionality of any town's attempt to regulate signage. Justice Kagan's concurring opinion, joined by Justice Ginsburg and by Breyer (who also has a separate concurring opinion) - - - but not by Justice Alito, who has his own brief concurrence, joined by Kennedy and Sotomayor (who also join the Thomas's opinion for the Court)- - - argues that strict scrutiny is not appropriate for all sign ordinances. Kagan states:
Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms, I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley. The second is to ensure that the government has not regulated speech “based on hostility—or favoritism— towards the underlying message expressed.” R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.
She instead argues that the "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive." But it was evident that even the concurring Justices did not view the Town of Gilbert's signage regulations as entirely reasonable.
Court Decides Specialty License Plate is Government Speech in Sons of Confederate Veterans License Plate
In a closely - - - and interestingly - - - divided opinion today in Walker v. Texas Sons of Confederate Veterans, the Court's majority decided that Texas's specialty license plate program is government speech and therefore rejected the First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.
Justice Breyer delivered the Court's opinion, joined by four Justices, Ginsburg, Sotomayor, Kagan, and - - - Thomas. The dissenting opinion by Justice Alito was joined by Chief Justice Roberts, Scalia, and Kennedy. And while Justice Breyer has become known for his appendices, this opinion has a simple one: the image of the rejected Sons of Confederate Veterans plate. Meanwhile, Alito's dissenting opinion has a more extensive appendix; it includes the images of 58 specialty plates that Texas has approved.
As was evident in the oral arguments, and is frequently the case in First Amendment speech controversies, there was a definite choice of doctrine at stake. Recall that the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination. The Court today not only rejected that view, but it rejected the applicability of any forum analysis. Instead, the Court applied the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) finding that there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas. This was raised at numerous points in the oral arguments and echoes the opinion of Judge Jerry Smith who had dissented in the Fifth Circuit's divided opinion. Breyer did note that there were some aspects of Summum that were not exactly parallel, such as the permanence of the monuments in Summun, the opinion states that this was important because the public parks in Summun are traditional public forums, which is not the case for license plates.
And as for that other and most famous license plate case, Wooley v. Maynard (1977), the Court's majority opinion distinguished Walker because "compelled private speech is not at issue." And indeed, if there is any compulsion of conveying ideological messages to be protected against here, it is that of the state being compelled to "include a Confederate battle flag on its specialty license plates."
Justice Alito's dissenting opinion has at its base a common-sense disagreement. Noting the proliferation of specialty plates, supported by his Appendix, he asks:
As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?
Thus, he argues that what Texas has done by selling space on its license plates is to create a "limited public forum."
Walker v. Sons of Confederate Veterans could have wide-ranging effect. Does it give unfettered discretion to governments to decide license plate matters given that it is now government speech? Consider that the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; that the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; and that a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
Sunday, June 14, 2015
Reversing the district judge, a panel opinion of the Sixth Circuit in Smith v. Jefferson County Board of School Commissioners found that there was no Establishment Clause violation when a Tennessee public school board contracted with a "religious institution," Kingswood Schools, Inc., to provide "alternative-school" services for students suspended or expelled from their "ordinary schools." The county school board entered into the contract because of a funding shortfall and over seven years paid Kingswood, 1.7 million dollars; the arrangement ended when the county resumed providing alternative-school services.
The majority's opinion by Judge Julia Smith Gibbons, coupled with a separate concurring opinion by Judge Alice Batchelder, illustrates the disarray of Establishment Clause doctrine. Yet both the majority and concurring opinion settle on the "endorsement test" and find it is not satisfied. Specifically, the majority considered the "voluntary assemblies" as well as whether the "Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school- improvement plan" constituted endorsement. As the majority described:
Students were required to submit a weekly family-feedback form—signed by their parents—in order to advance within the day program. That form contained the following quote from the Gospel of Luke: “Jesus . . . said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God.” Parents were also required to sign report cards, which contained the same Biblical text. Kingswood’s director testified that the scripture—from the Gospel of Luke—could be interpreted as an invitation into the kingdom of God. The same passage appeared, accompanied by crosses, on the school’s Easter 2006 letter. The letter claimed: “Kingswood School is unique because we offer children a Christian environment of love and encouragement. . . . Kingswood remains one of the few places where children in need can get help in a Christian environment. We are a non-profit faith based ministry . . . .”
Those who sought out the 2005 Annual Report saw that it contains a picture of the chapel and says that each child will receive Christian religious training, and that emphasis is placed upon “instilling in each child a personal faith in God, and the assurance of the saving grace of Jesus Christ.” The “school improvement plan,” completed before the Jefferson County contract and still in effect afterward, stated the belief that schools must provide for “spiritual growth” in order to serve the “‘whole’ student.”
The Kingswood website also contained some religious references. It claimed, for example, that “Kingswood has survived independently by remaining true in faith to the principles of a Christian education without being bound to the doctrine of a particular denomination or sect’s control.” It states that the school will take care of a child’s “spiritual and religious life,” although it will not compel a student to adopt any particular religious doctrine. The website refers to Kingswood as a “Christian charity,” and explains its “Methodist-rooted beginnings.” It says that the school “has observed a Christian approach that has remained inter- faithed and unaffiliated with a particular Christian denomination.”
In its analysis, the court characterizes the Christian language as "de minimus" and concludes that a "reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County." The arrangement saved taxpayer money and the court found it noteworthy that no parents or students complained. Instead, it reiterates that the complaint was by teachers of the public school who were terminated. The complaint was originally dismissed for lack of standing; the Sixth Circuit reversed en banc in 2011. The concurring opinion goes further and calls the case an "employment-contract dispute masquerading as an Establishment Clause case."
Yet the Establishment Clause disarray is not attributable to the procedural posture or the application of the so-called "endorsement test," but to questions about the test to be applied. According to the majority, there are "three main jurisprudential threads": the Lemon test; the endorsement test as a refinement of Lemon; and the "historical practice" test as articulated in Town of Greece v. Galloway, the closely-divided 2014 decision by the United States Supreme Court upholding a town council's prayer. The majority finds the historical practice test inapposite, but the concurrence argues for its application.
Interestingly, the court majority distinguishes Doe v. Elmbrook School District, in which the Seventh Circuit en banc found that an Establishment Clause violation existed when the school held graduation ceremonies in a church. The United States Supreme Court denied certiorari in Elmbrook, over a dissent by Justice Scalia (joined by Justice Thomas), arguing that the lower court's opinion is "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway. In her concurrence, Judge Batchelder essentially agrees with Justice Scalia. Judge Batchelder asks whether the school board's "contract would be historically acceptable to the Framers," seemingly assumes that it would be, and then would engage in a "fact-sensitive" inquiry regarding coercion. Judge Batchelder characterizes the biblical references as "innocuous," so presumably she would not find them coercive.
Yet bible verses on mandatory student correspondence that must be signed by parents on a weekly basis does seem to raise the specter of coercion - - - even if no parents or students of the "alternative-school" complained.