Monday, February 12, 2018
In its opinion in Perez v. City of Roseville, a panel of the Ninth Circuit reversed a district judge's granting of summary judgment to the government on a constitutional challenge by Janelle Perez to her termination from the City of Roseville after an internal affairs investigation into her "romantic relationship" with a fellow officer. The investigation noted that both officers "are married and have young children."
Authored by Judge Reinhardt, the opinion noted that its conclusion was required by Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), in which the Ninth Circuit held that the city violated Thorne's constitutional rights when it relied on her private, non-job-related sexual conduct as a clerk-typist in refusing to hire her as an officer, without “any showing that [her] private, off-duty personal activities ... [had] an impact upon [her] on-the-job performance,” or contravened “specific policies with narrow implementing regulations.” Likewise, Roseville failed to "introduce sufficient evidence that Perez’s affair had any meaningful impact upon her job performance."
Interestingly, the Ninth Circuit identifies a circuit split on the issue: We recognize that, since Thorne, at least two other circuits have adopted rules that appear to be in some tension with our case. See Coker v. Whittington, 858 F.3d 304, 306 (5th Cir. 2017) (concluding Constitution not violated where two sheriff’s deputies were fired for moving in with each other’s wives before finalizing divorce from their current wives because the Sheriff’s policies were supported by a rational basis); Seegmiller v. LaVerkin City, 528 F.3d 762, 770 (10th Cir. 2008) (upholding termination of officer on basis of extramarital affair under rational basis test because there is no “fundamental liberty interest ‘to engage in a private act of consensual sex’”). > However, the Ninth Circuit rejects the "approach taken by the Fifth and Tenth Circuits" for two reasons. First, there is the "binding precedent" of Thorne:
Because the State’s actions in this case “intrude on the core of a person’s constitutionally protected privacy and associational interests,” we must analyze them under “heightened scrutiny.” Thorne, 726 F.2d at 470. Moreover, even if we were to agree that the Department’s action here need only satisfy rational basis review, Thorne explains that it cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation. Id. at 471. Under our precedent, the Department must do more than cite a broad, standardless rule against “conduct unbecoming an officer.”
Second, the "Fifth and Tenth Circuits fail to appreciate the impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the jurisprudence of the constitutional right to sexual autonomy."
"Lawrence did much more than merely conclude that Texas’ anti-sodomy law failed the rational basis test. Instead, it recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause. As such, the constitutional infirmity in Texas’ law stemmed from neither its mere irrationality nor its burdening of a fundamental right to engage in homosexual conduct (or even private consensual sexual conduct, Rather, Texas’ law ran afoul of the Constitution’s protection of substantive liberty by imposing a special stigma of moral disapproval on intimate same-sex relationships in particular. As the Court explained, the liberty protected by the Due Process Clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried. . . . Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has “traditionally viewed a particular practice,” such as extramarital sex, “as immoral.” Thus, without a showing of adverse job impact or violation of a narrow, constitutionally valid departmental rule, the Constitution forbids the Department from expressing its moral disapproval of Perez’s extramarital affair by terminating her employment on that basis.
Thus, the Ninth Circuit holds that Thorne, decided 20 years before Lawrence was correct and the Fifth and Tenth Circuit opinions, both decided after Lawrence, do not give Lawrence proper effect.
Concurring, Judge Tashima stresses that Perez was a probationary police officer and thus the government need not have provided reasons. However, when the government did provide reasons "those reasons all arose in such short order after the internal affairs review that a reasonable inference may be drawn that they may have been pretextual." Additionally, the majority opinion held that the government had no right to qualified immunity because the rights were clearly established, again relying on Thorne, decided in 1983.
The majority panel opinion rejected a procedural due process claim and a gender discrimination claim.The court thus reversed the summary judgment in favor of the government and remanded the case for further proceedings given the factual disputes regarding the actual reasons Perez was termination.
Wednesday, February 7, 2018
The D.C. and Ninth Circuits this week ruled in two very different cases that plaintiffs lacked claims against federal officers or agents for violations of their constitutional rights. The two rulings both rely on a well established Bivens rule, that a plaintiff lacks a Bivens remedy if alternative statutory remedies are available. As such, the rulings don't restrict Bivens because of the Supreme Court's restrictive reading of Bivens last Term in Abbasi. Still, they underscore the limited reach of Bivens.
In the D.C. case, Liff v. Office of Inspector General, a former government contractor sued the Labor Department OIG and the Office of Personnel Management for violating his due process rights after those offices published reports that allegedly caused harm to him and his business. The court held that as a government contractor he had other statutory remedies, including the Tucker Act, the Contract Disputes Act, and the agency procurement protest process under the Federal Acquisition Regulation. As to his privacy claim, the court said the Privacy Act provided relief. The court was untroubled that these remedies wouldn't make him whole: "The question is whether alternative remedies exist, not whether they cover the full breadth of harm that a would-be Bivens plaintiff alleges."
In the Ninth Circuit case, Vega v. U.S., a federal inmate sued halfway-house operators for violating his First Amendment right to access to the courts and procedural due process after they filed a disciplinary report, without evidence, that resulted in his return to federal prison. (He eventually was returned to the halfway house.) The court held that he lacked a Bivens remedy, because the Administrative Remedy Program, the Unit Discipline Committee, or state-law claims could have provided relief.
Wednesday, January 17, 2018
In its opinion in Erotic Service Provider Legal Education and Research Project v. Gascon, the Ninth Circuit affirmed the district judge's dismissal of a constitutional challenge to California Penal Code § 647(b) which criminalizes the commercial exchange of sexual activity.
Judge Jane Restani, writing for the unanimous panel, rejected that claim that the United States Supreme Court's landmark decision in Lawrence v. Texas (2003) conferred a fundamental right to sexual intimacy under the Fourteenth Amendment's Due Process Clause. Restani's opinion declares that "whatever the nature of the right protected in Lawrence, one thing Lawrence does make explicit is that the Lawrence case “does not involve ... prostitution,” quoting from what some have called Lawrence's "caveat paragraph."
Given that there was no fundamental right at stake, the Ninth Circuit then applied rational basis and found there were several legitimate purposes found by the district court including links between commercial sex and trafficking in women and children; creating a "climate conducive to violence against women;" a "substantial link between prostitution and illegal drug use," and a link between commercial sex and "the transmission of AIDS and other sexually transmitted diseases." Judge Restani's opinion then summarily rejected the argument that the criminalization of commercial sex actually exacerbated the very problems it sought to remedy, stating that such assertions do not undermine the “rational speculation” sufficient to sustain the statute. The opinion relied on FCC v. Beach Communications (1993) for its highly deferential rational basis standard, despite the constitutional doctrine in Beach Communications being equal protection (albeit under the Fifth Amendment) rather than due process.
[image, "Female convicts at work in Brixton Women's Prison," UK 1862 via]
The Ninth Circuit was no more receptive to the other constitutional challenges. On the First Amendment free association claim, the court found that this was more properly analyzed as due process, and thus the rejection of the due process claim was dispositive. On the "right to earn a living" claim under due process, the court again relied on Lawrence's exclusion of commercial sex. Finally, on the First Amendment free speech claim, the court considered the solicitation of commercial sex as speech and analyzed it under the landmark test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y (1980). The court noted that the first prong regarding the exclusion for "unlawful activity" was determinative, but nevertheless continued, and briefly applied the other parts of the Central Hudson and found the statute did not violate the First Amendment.
In this 20 page opinion, the Ninth Circuit both manages to take the constitutional challenges to the criminalization of commercial sex seriously and to repudiate them.
Tuesday, January 9, 2018
The Sixth Circuit ruled today that voting rules on a proposed state constitutional amendment providing that the state constitution is not to be construed as protecting the right to abortion did not violate due process and equal protection. The ruling means that the state constitutional amendment can go into effect (although, given the federal right to abortion, it'll have no practical impact).
The case, George v. Hargett, arose when Tennessee voters approved an amendment to the Tennessee Constitution prohibiting construction of the state constitution to secure or protect the right to abortion or to require funding for abortion. Opponents of the measure sued, arguing that the voting rules for state constitutional amendments, found in Article XI, Section 3, of the state constitution, violated due process and equal protection.
Article XI, Section 3, provides:
if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.
The language is vague as to whether a vote must vote in both the gubernatorial election and on the amendment, or whether a voter could vote on the amendment without also voting in the gubernatorial election. (State practice said the latter.) So during the campaign, amendment supporters urged voters to vote for the proposed amendment, but not to vote in the gubernatorial election, in order to gain a numerical advantage. In contrast, amendment opponents urged voters to vote in both the gubernatorial election and on the amendment, in order to gain their own numerical advantage.
Tennessee voters voted in favor of the amendment. And for the first time in the state's history, the number of ballots cast on the amendment question exceeded the number of ballots in the gubernatorial election (reflecting the strength of the political campaign in favor of the amendment). This made the math easy: under Article XI, Section 3, the number of votes in favor of the amendment clearly exceeded half the number of total votes in the gubernatorial election.
Amendment opponents sued, arguing that Article XI, Section 3, under the prevailing interpretation, violated due process and equal protection. (They also argued for a different interpretation of Article XI, Section 3--that only those voters who also voted for governor could vote for the amendment--but the Sixth Circuit deferred to a final state court ruling that voters could vote on an amendment without also voting for governor.)
The Sixth Circuit rejected those claims. The court said that there was no due process violation, because no "voter's right to vote was burdened by government action." In short, the voting rules (set by the state court) allowed everyone to vote on the amendment, and counted all the votes on the amendment. The court said that there was no equal protection violation, because "[e]very vote cast--on the amendment and in the governor's race--was accorded the same weight."
The ruling ends the challenge and means that Tennessee's Constitution now contains a provision that prohibits an interpretation to secure or protect the right to abortion. But again: This'll have no practical effect on the right to abortion in the state, given the federal constitutional right to abortion.
In an extensive and well-crafted opinion in the consolidated cases of Common Cause v. Rucho and League of Women Voters v. Rucho, a three judge court found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.
Recall that the United States Supreme Court heard oral arguments on the issue of partisan gerrymandering in Gill v. Whitford in the earliest days of this Term. Recall also that in early December, the United States Supreme Court added another partisan gerrymandering case to its docket, Benisek v. Lamone.
Fourth Circuit Judge James Wynn's almost 200 page opinion for the majority, joined by Senior District Judge Britt, first discusses the facts involved in the North Carolina redistricting, some incidents and players of which will be familiar from the Supreme Court's opinion in Cooper v. Harris, a racial gerrymandering case challenging only two districts and arising from an earlier North Carolina redistricting.
This is the 2016 plan at issue in Common Cause and League of Women Voters:
Judge Wynn's opinion carefully resolves the question of standing and justiability. Important to the justiciability analysis is the issue of judicially manageable standards, and Judge Wynn writes a robust support for social science, noting that the "Supreme Court long has relied on statistical and social science analyses as evidence that a defendant violated a standard set forth in the Constitution" and citing cases under the Equal Protection Clause such as Yick Wo v. Hopkins, Brown v. Board of Education of Topeka, and City of Richmond v. J.A. Croson Co. (It is interesting in this regard to (re)consider Chief Justice Roberts's statements during the oral argument in Gill v. Whitford disparaging social science.)
Judge Wynn wrote:
To hold that such widely used, and relied upon, methods cannot provide a judicially manageable standard for adjudicating Plaintiffs’ partisan gerrymandering claims would be to admit that the judiciary lacks the competence—or willingness—to keep pace with the technical advances that simultaneously facilitate such invidious partisanship and provide an opportunity to remedy it.
On the merits of the Equal Protection Clause claim, Judge Wynn's opinion found that there must be an intent to discriminate on a partisan basis and that there was such an effect, and then the burden would shift to the governmental defendant to prove that a legitimate state interest or other neutral factor justified such discrimination. Here, Judge Wynn's opinion concluded that all were resolved in the challengers' favor. On the First Amendment claim, Judge Wynn considered several strands of doctrine:
Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest. How can the First Amendment prohibit the government from disfavoring certain viewpoints, yet allow a legislature to enact a districting plan that disfavors supporters of a particular set of political beliefs? How can the First Amendment bar the government from disfavoring a class of speakers, but allow a districting plan to disfavor a class of voters? How can the First Amendment protect government employees’ political speech rights, but stand idle when the government infringes on voters’ political speech rights? And how can the First Amendment ensure that candidates ascribing to all manner of political beliefs have a reasonable opportunity to appear on the ballot, and yet allow a state electoral system to favor one set of political beliefs over others? We conclude that the First Amendment does not draw such fine lines.
In a brief separate opinion, concurring in part and dissenting in part, District Judge Osteen, Jr., disagreed as the standard for proving intent in Equal Protection but concluded the standard was met; disagreed on the merits of the First Amendment claim; and agreed that there was a violation of Article I.
Judge Wynn's opinion gave North Carolina until January 29 to submit a new plan to the Court, but one wonders if North Carolina will also be aggressively pursuing remedies at the United States Supreme Court, especially given Gill v. Whitford and Benisek v. Lamone.
Tuesday, October 24, 2017
In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:
We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.
This does not end litigation on the issues.
Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017. Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).
Friday, September 22, 2017
Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.
The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.
The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.
The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."
Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)
Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.
The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:
Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.
As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)
Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."
As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.
September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)
Wednesday, September 20, 2017
In its opinion in McLaughlin v. McLaughlin (Jones), the Arizona Supreme Court interpreted the United States Constitution to require that the statutory presumption of parentage applies to a woman in a same-sex marriage in the same way as would to a man in a different-sex marriage.
The Arizona Supreme Court relied on the United States Supreme Court's 2015 decision in Obergefell v. Hodges as well as the Court's per curiam opinion a few months ago in Pavan v. Smith, reversing the Arkansas Supreme Court's divided decision to deny a same-sex parent's name be listed on the child's birth certificate. The Arizona Supreme Court in McLaughlin, echoing Pavan, quoted Obergefell as constitutionally requiring same-sex married couples be afforded the “constellation of benefits the States have linked to marriage.”
The majority opinion of the Arizona Supreme Court, authored by Chief Justice Scott Bales, rejected the interpretation of Obergefell advanced by Kimberly McLaughlin, the biological mother, that "Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage." Instead, Chief Justice Bales wrote that that such a "constricted reading is precluded by Obergefell itself ad the Supreme Court's recent decision in Pavan v. Smith." Moreover, as in Pavan, the statute itself did not rest on biology but sought to sideline it. The marital presumption assigns paternity based on marriage to the birth mother, not biological relationship to the child. Thus, any differential treatment cannot be justified and the statute was unconstitutional as applied.
As a remedy, Judge Bales' opinion concluded that the extension of the presumption rather than striking the presumption was proper, relying on yet distinguishing the Court's recent decision in Sessions v. Morales-Santana. It was on this issue that one Justice dissented, contending that the court was rewriting the statute. Two other Justices wrote separately to concur on the remedy issue, noting that the majority must follow the United States Supreme Court and "circumstances require us to drive a remedial square peg into a statutory round hole," but "nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking" the statute.
Perhaps the Arizona legislature will see fit to abolish the marital presumption for all children?
September 20, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)
Thursday, August 10, 2017
Federal Judge Declares Louisiana's Restriction on Non-Native Born Marriage Applicants Unconstitutional
In an opinion in Vo v. Gee, Senior United States District Ivan L.R. Lemelle declared Louisiana's Act 436 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Act 436 amended the requirements to obtain a Louisiana marriage license so that an applicant born outside of the United States must submit a copy of the person's birth certificate under the raised seal or stamp of the vital statistics registration authority of the person's place of birth, with additional requirements if the document is not in English, and a valid and unexpired passport or an unexpired visa accompanied by a Form I-94 issued by the United States, verifying that the applicant is lawfully in the United States. Viet "Victor" Ahn Vo, naturalized as a United States citizen at the age of 8, was nevertheless denied a marriage license because he did not have a birth certificate. Vo was born in Indonesia in a refugee camp to parents who were Vietnamese nationals, relocating to Louisiana when Vo was three months of age.
On the equal protection issue, Judge Lemelle stated that the "birth certificate provisions that the Louisiana legislature enacted creates classifications that distinguish between United States citizens on the basis of their national origin," and thus merits strict scrutiny, requiring a compelling government interest which the statute serves by narrowly tailored means. Without discussing any interests put forward by the state, Judge Lemelle concluded that the "State of Louisiana fails to demonstrate in their opposition that this classification based on national origin furthers a compelling governmental interest." The judge therefore concluded there was an equal protection violation.
On the due process challenge, Judge Lemelle cited the "fundamental right to marry" under Obergefell v. Hodges as well as the Zablocki v. Redhail (1978) test of directly and substantially interfering with marriage as warranting strict scrutiny. The judge rejected Louisiana's claim that a subsequent amendment to the act that allows for a judicial waiver in some cases cures the constitutional defects or rendered the case moot. (Recall that in Zablocki itself the statute allowed a judicial waiver of the bar for past due child support payments as an impediment to marriage). Instead, Judge Lemelle noted that "the failure of the State of Louisiana to proffer any evidence of why this regulation passes constitutional muster" and held it violated due process.
The bulk of Judge Lemelle's relatively brief opinion addresses the more procedural issues of summary judgment and injunction standards, perhaps because the constitutional issues were clear as Louisiana seemingly conceded. Nevertheless, this is an important opinion regarding the issue of differential treatment for non-native born citizens.
Monday, June 19, 2017
In the United States Supreme Court unanimous decision in Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment. This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February. Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages. The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .
While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.
For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens." The Court noted that the present statute applies to all social networking sites including Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media.
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric." For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child." Among Alito's examples are Amazon.com, the Washington Post website, and WebMD. Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."
Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute. The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute.
Monday, June 12, 2017
In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men."
Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.
Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary. In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love." This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:
Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.
And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:
perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.
June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)
Friday, June 2, 2017
The Ninth Circuit ruled this week that a state fee imposed on firearms transfers--and, in particular, a portion of the fee that goes to fund enforcement efforts against illegal firearms purchasers--does not violate the Second Amendment.
The case involved a challenge to California's firearms transfer fee--a $19 fee on firearms transfers, about $5 of which goes to fund enforcement efforts against illegal firearms purchasers. The plaintiffs claimed that the $5 portion of the fee violated the Second Amendment, because it imposed a burden on the right to bear arms that wasn't closely enough related to an important government interest.
The court first assumed, without deciding, that the fee fell within the core of the Second Amendment. It applied only intermediate scrutiny, because the fee wasn't a substantial burden on anyone's ability to actually get a firearm. (The court noted that the plaintiff "has neither alleged nor argued that the [fee] has any impact on the plaintiffs' actual ability to obtain and possess a firearm.") (The court noted that it always applied intermediate scrutiny at the second step of the familiar Second Amendment test, but it appeared to hold open the possibility that higher scrutiny would apply to laws that "severely burden" the right.)
The court said that the fee easily met intermediate scrutiny:
Given the State's important interest in promoting public safety and disarming prohibited persons under the first prong of the test, there is a "reasonable fit" between these important objectives and the challenged portion of the . . . fee.
The ruling means that the fee stays on the books.
Tuesday, April 4, 2017
In her Opinion and Order in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Dept of Health, Judge Tanya Walton Pratt enjoined Indiana Code § 16-34-2-1.1(a)(5), requiring a woman to have an ultrasound at least eighteen hours prior to an abortion.
The judge found that Planned Parenthood of Indiana and Kentucky (PPINK) was likely to prevail on the merits under the undue burden standard rearticulated most recently in Whole Woman’s Health v. Hellerstedt (2016) regarding the substantive due process right to an abortion. The new statute combined two prior Indiana laws – an ultrasound requirement and a time sensitive informed consent requirement – into one new law that required a woman seeking an abortion to obtain an ultrasound at least 18 hours before her abortion. Indiana's
principle rationale for the statute was fetal life, but the judge found that “the State has not provided any convincing evidence that requiring an ultrasound to occur eighteen hours prior to an abortion rather than on the day of an abortion makes it any more likely that a woman will choose not to have an abortion.” The judge was similarly unconvinced by the state's "alternative justification" of the "psychological importance" to the woman of viewing the ultrasound if she chose to do so. Even accepting the proposition that there could be psychological benefit, the evidence did not address the relevant question of the difference between "women having an ultrasound eighteen hours prior to the abortion as opposed to the day of the abortion."
The judge found that the burdens imposed by the statute, including increased travel distances and delays in obtaining abortion services, were not balanced by the state's unsubstantiated interest. Moreover, the judge found it relevant that the burdened women were mainly low-income women who would suffer financial burdens disproportionately, explaining that many women miss work because of these laws, and may have to reserve childcare for the days that they are away or traveling. Additionally, the judge weighed delays, explaining increases in double booked appointments, as well as increases in delays for women struggling to meet timing requirements for their abortions. The judge relied both on expert testimony as well as "specific examples" from nine woman relating to these burdens.
In sum, Judge Pratt concluded:
The new ultrasound law creates significant financial and other burdens on PPINK and its patients, particularly on low-income women in Indiana who face lengthy travel to one of PPINK’s now only six health centers that can offer an informed-consent appointment. These burdens are clearly undue when weighed against the almost complete lack of evidence that the law furthers the State’s asserted justifications of promoting fetal life and women’s mental health outcomes. The evidence presented by the State shows that viewing an ultrasound image has only a “very small” impact on an incrementally small number of women. And there is almost no evidence that this impact is increased if the ultrasound is viewed the day before the abortion rather than the day of the abortion. Moreover, the law does not require women to view the ultrasound imagine at all, and seventy-five percent of PPINK’s patients choose not to. For these women, the new ultrasound has no impact whatsoever. Given the lack of evidence that the new ultrasound law has the benefits asserted by the State, the law likely creates an undue burden on women’s constitutional rights.
The law was signed by now Vice President Pence when he was Governor of Indiana; it is uncertain whether the present state administration will pursue the same agenda.
h/t Juliet Critsimilios
Monday, March 6, 2017
The President's revised Executive Order (March 6, 2017), entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," has substantial changes from the previous EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.
This new EO, signed without the fanfare of the previous one, acknowledges that the previous EO "has been delayed by litigation" and does seek to remedy some of the problems with the EO. For example, the scope is much narrower and the suspension of entry excludes "any lawful permanent resident" as well as some other categories. This will make the applicability of constitutional protections less clear. While the Constitution protects non-citizens, it does not have global applicability.
The new EO avers that the previous EO was not a "Muslim Ban":
Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP [US Refugee Admissions Program] in light of their particular challenges and circumstances.
Nevertheless, this new EO does not mention otherwise religion. Of course, omitting references to "religion" or stating that an act is not motivated by animus does not end the inquiry. Instead, there will most certainly be arguments that courts can consider the new EO as religiously-motivated under either First Amendment or Equal Protection Clause doctrine.
The new EO also changes the seven nations to six - - - omitting Iraq as a "special case." This could also give rise to a national origin classification - - - is Iraq, with its "active combat zones" so different from Libya and Yemen which are described similarly? The omission of Iraq is also problematical because the new EO recites as part of its justification this specific incident: "For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses."
That relatively brief paragraph, §1(h), ends by stating that "The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation." Issues with the Attorney General and counterterrorism aside, the objections of other government officials regarding the efficacy of the travel ban would certainly figure in any judicial measurement of the fit between the travel ban and the government purposes.
In terms of litigation and constitutional challenges, the first order of business will be procedural questions regarding whether the new EO can be substituted for the previous EO through amended complaints and other pleadings or will there need to be new cases.
Thursday, February 16, 2017
In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding.
The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.
On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression. The court relied on Rumsfeld v. FAIR to hold that the owner's
decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.
The court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression. In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case.
On the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution. Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives. The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."
Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses. As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.
The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.
February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)
Saturday, February 4, 2017
In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban."
Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed. Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).
The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:
The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inﬂicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.
Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy. Here is the entire last paragraph:
Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this speciﬁc lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulﬁll its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.
The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)
Friday, February 3, 2017
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.
Monday, January 16, 2017
While we often think of protest and civil disobedience under the First Amendment, in her article Protest is Different in Richmond Law Review, Professor Jesssica West of University of Washington essentially argues that the First Amendment has not been a sufficiently robust defense criminal prosecutions. Instead, she contends that we should reconceptualize protest relying upon evolving concepts of capital jurisprudence flowing from the Eighth Amendment contention that "death is different." She argues that similar to the complexity of the moral determination inherent in a sentence of death requiring a judgment of community condemnation, a criminal conviction resulting from acts of protest likewise involves deep and complex values of individualization and community conscience.
It's a worthwhile read on this Martin Luther King Day: "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." Martin Luther King, Jr., Letter from a Birmingham Jail, Apr. 16, 1963.
Friday, October 28, 2016
The Court today has granted certiorari in Glouster County School Board v. G.G.
As we previously discussed, while the constitutional issues are not in the foreground, it does involve important equality issues for transgender and gender nonconforming students as well as issues of Exceutive - - - or perhaps more properly, administrative agency - - - power.
The Court's Order limits the grant to Questions 2 and 3, thus eliminating the issue of the viability of "Auer deference" from consideration. The Questions presented in the certiorari petition are:
(1) Whether the court should retain the Auer v. Robbins doctrine despite the objections of multiple justices who have recently urged that it be reconsidered and overruled;
(2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and
(3) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
Wednesday, October 26, 2016
In its opinion in Keefe v. Adams, a divided panel of the Eighth Circuit upheld the dismissal of a student from the Associate Degree Nursing Program at Central Lakes College (CLC) in Minnesota. Other students had complained about posts on Craig Keefe’s Facebook page and he was eventually removed from the program for :behavior unbecoming of the profession and transgression of professional boundaries." Keefe challenged the constitutionality of the dismissal based on the First Amendment and procedural due process. The district judge granted summary judgment for the university officials and the majority opinion, authored by Judge James Loken for the Eighth Circuit panel, affirmed.
The concerning posts involved other students in the class and group projects, including his objection to a fellow student changing the group presentation - "Not enough whiskey to control that anger" and calling another student a "bitch" for presumably reporting his Facebook posts.
Doesnt anyone know or have heard of mechanical pencils. Im going to take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to long. I might need some anger management.
In a footnote, the court helpfully explains:
a hemopneumothorax is a “trauma” where the lung is punctured and air and blood flood the lung cavity; it is not a medical procedure.
College officials discussed the posts and Keefe originally deflected. He was dismissed from the program under specific provisions in the Nursing Program Student Handbook which also refers to the Nurses Association Code of Ethics, including professional boundaries and "behavior unbecoming." He appealed within the the college, citing failures of procedural due process, but his appeal was denied.
On the procedural due process issue, the majority concluded:
Viewing the summary judgment record as a whole, we conclude that Keefe was provided sufficient notice of the faculty’s dissatisfaction, an explanation of why his behavior fell short of the professionalism requirements of the Program, an opportunity to respond to the initial decision-maker, and an opportunity to appeal her adverse decision. Nothing in the record suggests that Keefe’s removal from the Nursing Program was not a careful and deliberate, genuinely academic decision.
Dissenting in part, Judge Jane Kelly argued that the dismissal decision was not "academic." Instead, it was a disciplinary dismissal for which he argued the due process standard should be higher. Judge Kelly highlighted one of the meetings with Keefe in which he was not given all the posts beforehand with "time to review the posts and formulate a response." However, Judge Kelly contended that the college administrators were entitled to qualified immunity on the due process claim.
The First Amendment issue is the central one. As Judge Loken's opinion for the majority notes, Keefe frames the issue categorically: "a college student may not be punished for off-campus speech," unless that speech is "unprotected by the First Amendment." Judge Loken characterized this as an "extreme position" not adopted by any court.
The Eighth Circuit majority rehearsed some of the cases involving academic requirements for professionalism and fitness, including cases such as Ward and Keeton involving professional students' failure to comply with anti-bias requirements. These principles, the court held, were equally pertinent to off-campus speech, especially given that the off-campus speech was "directed at classmates, involved their conduct in the Nursing Program, and included a physical threat related to their medical studies."
For the dissenting judge, it was important that Keefe's Facebook posts "were not made as part of fulfilling a program requirement and did not express an intention to break specific curricular rules." As to the "threat," the dissenting judge argued that the district judge had failed to make findings that Keefe's statement qualified as a true threat. For the dissenting judge, summary judgment was improper.
The split opinion might indicate that the case is a good candidate for en banc review and there were First Amendment groups as amici on behalf of the dismissed student. Nevertheless, the Eighth Circuit opinion does comport with the trend of allowing professional educational programs latitude to "professionalize" students and to dismiss those who do not conform.