Constitutional Law Prof Blog

Students' Offensive Web-Site Likely Not Protected by Free Speech

A three-judge panel of the Eighth Circuit ruled this week in S.J.W. v. Lee's Summit R-7 School District that two students were not likely to succeed on the merits of their First Amendment challenge to their suspension from school for creating and blogging on an offensive web-site directed at their school and its community.  The ruling reverses an earlier district court injunction against the school and almost certainly means that the two students will have to leave the school under their original suspension and attend a different school.

The case arose out of a web-site created by two eleventh-grade students, twins, at Lee's Summit North High School.  The web-site, called NorthPress, included a blog on which the students posted a variety of offensive and racist comments and sexually explicit and degrading comments about particular female classmates.  A third student added another racist post.

The students said they told only a small group of friends about the site.  But word quickly spread (as you might expect), and, as soon as it did, Lee's Summit North suspended the two students for 180 days but allowed them to enroll in another school, Summit Ridge Academy, for the duration of their suspensions.

The students sued and sought a preliminary injunction.  The district court found that the web-site "caused considerable disturbance and disruption [in the school] on Friday, the 16th," and that the blog was targeted at the school.  But it nevertheless issued a preliminary injunction (finding, among other things, a likelihood of success on the merits of the students' First Amendment claim).

The Eighth Circuit reversed.  Applying Tinker v. Des Moines Ind. Community Schools--the part that says student speech that materially disrupts classwork is unprotected--the panel ruled that the students were not likely to succeed on the merits, because they targeted the blog at the school and because it caused disruption in the school.  The court, citing its own law and the law of other circuits, said that it didn't matter that the blog was physically off-campus; it was enough that the blog was directed at the school and disrupted classwork there.

The court also rejected the students' claim that absent a preliminary injunction they'd suffer irreparable harm.  The court said that they could attend Summit Ridge, and they'd already suffered any harm that they claimed as a result of attending Summit Ridge (and not Lee's Summit North).

SDS

Daily Read: Diane Marie Amann on Justice Stevens as an Orginalist

The labels of constitutional interpretative practice often attached to Justices such as "legal realist" or "originalist" are both useful and problematical.  In her essay, John Paul Stevens, Originalist, 106 Northwestern University Law Review 743 (2012), available on ssrn, Professor Diane Marie Amann (pictured), makes an argument that Justice Stevens could just as well be called an originalist as his more usual label of pragmatist. 

Amann's essay argues that scholars need to recognize that Stevens "has done battle upon originalism’s own field of combat."   She highlights Stevens opinions in the "gun rights" cases of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the latter of which was rendered the day before Stevens retired after almost thirty-five years as a Justice.

Importantly, she also situates Stevens career within the history of the Court, especially Justices appointed by FDR such as Justice Rutledge, for whom Stevens clerked in 1947.

For anyone teaching, writing, or studying theories of constitutional interpretation, Amman's essay is a must-read.

RR

Second Circuit Affirms DOMA Unconstitutional

In a divided opinion issued today, the Second Circuit in Windsor v. United States, affirmed the district judge's conclusion that the defense of Marriage Act (DOMA) section 3 is unconstitutional. Recall that the United States position is being defended by BLAG, Bipartisan Leadership Advisory Group, reportedly at a cost to taxpayers of 1.5 million dollars. 

Second Circuit Chief Judge Dennis Jacobs wrote the majority opinion that Judge Droney joined.  The panel held that Windsor had standing, that the suit was not foreclosed by the Court's 1971 summary dismissal in Baker v. Nelson, that DOMA was subject to intermediate scrutiny and that DOMA failed intermediate scrutiny, as well as that there was no need to certify any questions to New York's highest court.

The Second Circuit rejected the district judge's finding that the appropriate level of scrutiny was rational basis, holding that intermediate scrutiny is correct under the basic Carolene Products factors as articulated in Cleburne.  The panel stated:

In this case, all four factors justify heightened scrutiny:

A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

The panel then applied the classic articulation of intermediate scrutiny, requiring that the "classification must be substantially related to an important government interest."  The panel analyzed BLAG's stated interests - - -the “unique federal interests ” (which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution”) and the encouragement of “responsible procreation” - - - noting that at oral argument "BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny."  The panel, however, does evaluate the interests, concluding they are not being substantially served by DOMA.

Dissenting Judge Straub, in a lengthy opinion, contends that DOMA merits only rational basis scrutiny and that it satisfies this low standard.

The Second Circuit thus joins the First Circuit in holding DOMA unconstitutional as the issue awaits Supreme Court review.

RR

Daily Read: Amicus Brief of the Family of Heman Sweatt in Fisher v. UT

Of the many amicus briefs filed in Fisher v. University of Texas-Austin, argued last week, the brief on behalf of the family of Heman Sweatt stands out.  Heman Sweatt, of course, was the plaintiff in Sweatt v. Painter, decided by the Supreme Court in 1950.  As the "interest of amicus curiae" section of the brief explains:

Amici curiae are the daughter and nephews of Heman Marion Sweatt, who in 1946 was denied admission to The University of Texas Law School for one reason: “the fact that he is a negro.” Texas law forbade UT from considering any of his other qualities: not his intelligence, not his determination, not the grit he gained living under and fighting Jim Crow.

In 1950 – four years before Brown v. Board of Education – this Court held that Sweatt must be admitted to UT, because the separate law school created to accommodate him was not equal in – among other things – intangibles such as reputation and because Sweatt would be “removed from the interplay of ideas and the exchange of views” with “members of the racial groups which number 85% of the population of the State.”

Today, UT honors the legacy of Heman Sweatt in many ways, none more important than its commitment to creating a genuinely diverse student body. It does so through an admissions policy that considers (to the extent allowed by the Texas Top Ten Percent Law, which depends on secondary-school segregation to increase minority enrollment) all aspects of an applicant’s character – including, in part, how that character has been shaped by race.

The brief not only highlights the "importance of race" but also the "importance of patience," arguing that the "25-year horizon Justice O’Connor envisioned for race-conscious admissions decisions [in Grutter] may have been optimistic." 

More about Sweatt's case in the United States Supreme Court is available at the UT Tarlton Law Library's holding of the papers of Justice Thomas C. Clark. 

RR
[image: Prints & Photographs Collection, Heman Sweatt file, The Center for American History, University of Texas at Austin, via]

 

Ninth Circuit Stays Lower Court, Retains Montana Contribution Limits Pending Appeal

A three-judge motions panel of the Ninth Circuit in Lair v. Bullock granted Montana's motion to stay District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment.  (Recall that the panel previously granted a temporary stay.  Here's some background.)  The ruling means that Montana's campaign contribution limits remain in place pending appeal and sends a strong signal that the Ninth Circuit will reverse Judge Lovell's decision and uphold the limits.

The panel reaffirmed its own ruling in Montana Right to Life Ass'n v. Eddleman (upholding Montana's low campaign contribution limits against a First Amendment challenge) and rejected any notion that the Supreme Court's ruling in Randall v. Sorrell (overturning Vermont's low campaign contribution limits) abrogated Eddleman.  Here's what the Ninth Circuit panel said:

We conclude that the State of Montana has made a strong showing that a merits panel of this Court will likely conclude that, absent en banc proceedings or an intervening decision of the Supreme Court, we remain bound by our decision in Eddleman.  We also conclude that a merits panel is likely to hold that the analytical framework of the Supreme Court's decision in Randall does not alter the analysis of Buckley or Shrink Missouri in a way that affects our decision in Eddleman, for three reasons.  First, there is no opinion of the Court in Randall.  Second, even if we thought that Justice Breyer's plurality opinioin represented the narrowest view of a majority of the Court, it did not depart from the principles of Buckley and Shrink Missouri that we applied in Eddleman.  Third, even if we applied Randall to [the Montana limits], we cannot find, on the basis of the district court's findings, reason to disagree with, much less overturn, Eddleman.  In light of Montana's interest in regulating campaign contributions, the lack of evidence that other parties will be substantially injured, and the public's substantial interest in the stability of its electoral system in the final weeks leading to an election, we will stay the order pending the state's appeal.

Op. at 3-4.

SDS

DOJ Moves to Dismiss Fast and Furious Suit

Earlier this week the Justice Department filed its motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder.  The motion was expected, and the arguments are not a surprise.

Recall that the Committee brought the case seeking a declaration that the administration's assertion of executive privilege was without merit and that its failure to turn over certain documents to the Committee in its investigation of the "Fast and Furious" program was without justification.  The Committee seeks an order requiring the government to turn over these documents.

Recall also that since the Committee filed its suit, the DOJ Inspector General issued its report into the program and testified before Congress on it.

DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward.  In short, DOJ says that the political branches should work this out.  According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.

DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action.  It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction.  In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331.  (Congress asserted no claim for monetary damages in that case.)  Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps.  (Otherwise 1365 would be a nullity.)  If so, the court lacks jurisdiction over the House Committee's suit.  Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.

Now we wait for the Committee's response.

SDS

Daily Read: Sunstein on Judges on Regulations (on the Election)

Writing in The New York Review of Books, Cass Sunstein argues that "The Hidden Stakes of the Election" are less concerned with constitutional matters than with regulatory ones:

However fundamental, the debate over the Constitution misses a problem that may well be even more important in American life. Many of the most significant judicial decisions do not involve the Constitution at all. Most people never hear about those decisions. But they determine the fate of countless regulations, issued by federal agencies, that are indispensable to implementing important laws—including those designed to reform the health care system, promote financial stability, protect consumers, ensure clean air and water, protect civil rights, keep the food supply safe, reduce deaths from tobacco, promote energy efficiency, maintain safe workplaces, and much more.

He proposes the following "simple way to test whether political convictions matter in legal disputes over regulations":

Ask just two questions. (1) Is the regulation being challenged by industry or instead by a public interest group? (2) How many of the three judges were appointed by a Republican president and how many by a Democratic president?

Though writing from a particular partisan viewpoint - - - Sunstein was Administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012 - - - his argument is certainly worth a read, and worth trying to refute with counter-examples.

RR

D.C. Circuit Vacates Hamdan's Conviction for "Material Support for Terrorism"

A unanimous three-judge panel of the D.C. Circuit today in Hamdan v. U.S. reversed the judgment of the Court of Military Commission Review and directed that Salim Ahmed Hamdan's conviction for "material support for terrorism" be vacated.  The ruling clears Hamdan, who already served time (66 months minus credit for time already served at Guantanamo) and has been released, of this conviction.

Hamdan here is the same Hamdan who successfully challenged the government's authority to try him by military commission in Hamdan v. Rumsfeld.  After Congress passed the Military Commissions Act of 2006 and expanded the list of crimes for which a person could be tried by military commission, the government re-charged Hamdan with conspiracy and material support for terrorism.  Hamdan was acquitted of conspiracy, but convicted of five specifications of material support for terrorism.  He was sentenced to 66 months, but credited for served for most of that sentence, and released in Yemen in 2008.

The D.C. Circuit ruled that Hamdan's case was not moot (even though he already served time and was released in 2008 in Yemen) and that the MCA, which specifically made "material support for terrorism" a crime triable in a military commission, did not apply (in order to avoid ex post facto problems).  This left the court to determine whether the government had authority to try Hamdan for "material support for terrorism" under 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war." 

In short, the court ruled that the international law of war at the time did not proscribe "material support for terrorism" and that the government therefore lacked authority to try Hamdan for that crime by military commission.  The court wrote that

neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime.  Perhaps most telling, before this case, no person has ever been tried by an international-law war crimes tribunal for material support of terrorism.

Op. at 25.  The court said that international law leaves "material support for terrorism" to domestic law (even if international law does establish some other forms of terrorism as war crimes), and domestic law didn't outlaw it until the 2006 MCA--after Hamdan's actions.

Judge Ginsburg joined the court's opinion but wrote separately to "explain the unfortunate state of . . . precedent" that saved the case from mootness.

Only Judge Kavanaugh, the author of the court's opinion, joined footnote 6, which explained why Congress had authority to make "material support for terrorism" a war crime, and why it is appropriate to address that question in the first place.  Judge Kavanaugh wrote that Congress's war powers are not confined by international law, and therefore even if international law did not define "material support for terrorism" as a war crime, Congress could.

SDS

Supreme Court Refuses to Stay Sixth Circuit's Ruling on Ohio Early Voting

In a very brief Order today, the United States Supreme Court stated in Husted v. Obama for America: "The application for stay presented to Justice Kagan and by her referred to the Court is denied."

Thus, the Court let stand the Sixth Circuit's opinion upholding the district court's finding that the Ohio differential early voting scheme violated the Equal Protection Clause of the Fourteenth Amendment.  Our previous discussion is here.

RR

Daily Read: Laura Appleman on Oscar Wilde (and Proposition 8)

As the United States Supreme Court continues to hold in abeyance its decision on whether to grant certiorari in the cases challenging the constitutionality of prohibitions on same-sex marriage in Proposition 8 or DOMA, and many mark the 158th birthday of Oscar Wilde (pictured), Professor Laura Appleman's 2011 article Oscar Wilde's Long Tail: Framing Sexual Identity in the Law, available here, is worth a read. 

Appleman argues that Wilde's 1895 trials for sodomy and the 2010 Proposition 8 trial both functioned as a legal stage for "enacting social-cultural anxiety over sexuality."  But beyond comparisons, Appleman argues that the Wilde trials constructed certain narratives about sexuality that the Court has been unwilling to confront in its sexuality decisions, including in Romer v. Evans and Lawrence v. Texas.  The same-sex marriage decisions by state courts likewise participate in these narrative constructs.  Although, as her article states in its last sentence, how the courts continue down these paths is "a story yet untold." 

RR
[image of Oscar Wilde, circa 1882 via]

 

Court Grants Certiorari in Arizona Voting Case: Preemption and Citizenship Issues

Today the United States Supreme Court granted the petition for certiorari of the State of Arizona in Arizona v. The Inter-Tribal Council of Arizona, from the Ninth Circuit's en banc opinion in Gonzalez v. Arizona. (The Inter Tribal Council of Arizona, ITCA, was a named plaintiff in Gonzales).

The central issues, as have been the case with other recent Arizona laws before the Supreme Court, involve pre-emption and citizenship.   Here, Arizona's law derives from a ballot initiative, Proposition 200, passed in 2004.  It requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote and requires registered voters to show identification to cast a ballot at the polls.  The plaintiffs contended that these provisions were pre-empted by the National Voter Registration Act and the Voting Rights Acts. 

With regard to the polling place requirements, the en banc Ninth Circuit affirmed the district judge and rejected the plaintiffs' claims that the requirements were inconsistent with the Voting Rights Act, violated the Twenty Fourth Amendment's prohibition of poll taxes, or violated the Fourteenth Amendment's Equal Protection Clause.

However, the Ninth Circuit found the challenge to the registration to vote provisions had merit. As a grounds of pre-emption, the plaintiffs relied on the Supremacy Clause, Article VI, but also upon the Elections Clause, Art. I, § 4, cl. 1.  Recall that the Elections Clause provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  The Ninth Circuit en banc extensively discussed Election Clause pre-emption and compared the provisions of the NVRA and the Proposition 200 regulations.  The court found:

Although Arizona has offered a creative interpretation of the state and federal statutes in an effort to avoid a direct conflict, we do not strain to reconcile a state’s federal election regulations with those of Congress, but consider whether the state and federal procedures operate harmoniously when read together naturally.  Here, under a natural reading of the NVRA, Arizona’s rejection of every Federal Form submitted without proof of citizenship does not constitute “accepting and using” the Federal Form. Arizona cannot cast doubt on this conclusion by pointing out that the NVRA allows states to reject applicants who fail to demonstrate their eligibility pursuant to the Federal Form. Congress clearly anticipated that states would reject applicants whose responses to the Federal Form indicate they are too young to vote, do not live within the state, or have not attested to being U.S. citizens. Indeed, the NVRA instructs the EAC [Election Assistance Commission] to request information on the Federal Form for the precise purpose of “enabl[ing] the appropriate State election official to assess the eligibility of the applicant.” Thus, a state that assesses an applicant’s eligibility based on the information requested on the Federal Form is “accepting and using” the form in exactly the way it was meant to be used. In contrast, Proposition 200’s registration provision directs county recorders to assess an applicant’s eligibility based on proof of citizenship information that is not requested on the Federal Form, and to reject all Federal Forms that are submitted without such proof. Rejecting the Federal Form because the applicant failed to include information that is not required by that form is contrary to the form’s intended use and purpose.

[citations omitted].

In its petition for writ of certiorari, Arizona argues that the Ninth Circuit mistakenly created a "new, heightened preemption test" under the Elections Clause and incorrectly concluded that the Proposition 200 requirements were preempted by the NVRA.

The litigation has already garnered a few amicus curiae briefs at the certiorari stage; it is sure to be another closely watched case on Arizona's attempts to regulate citizenship.

RR
[image: ITCA,"Tribal Homelands in Arizona" via]

Developments in Montana Campaign Contribution Case

Recall that District Judge Charles C. Lovell (Montana) ruled earlier this month in Lair v. Murry that Montana's low campaign contribution limits for individuals and political parties violated the First Amendment and permanently enjoined the state from enforcing those limits.  Judge Lovell wrote that he'd issue more detailed findings and conclusions soon.  (He did; see below.)

But late last week, before Judge Lovell issued his follow-up, the Ninth Circuit issued a temporary stay of Judge Lovell's ruling, putting the limits back into place pending further action by the Ninth Circuit.  The three-judge panel wrote that Judge Lovell's original ruling contained no findings and conclusions, and thus "the court is severely constrained in its consideration of the underlying issues raised in the emergency motion [for a temporary stay], including whether, in light of Randall v. Sorrell . . . our decision in Montana Right to Life Ass'n v. Eddleman . . . must be revisited."

A little background.  The Ninth Circuit previously upheld Montana's low limits against a First Amendment challenge in Montana Right to Life Ass'n in 2003.  The Ninth Circuit in Montana Right to Life Ass'n relied on the Supreme Court's Nixon v. Shrink Missouri Government PAC (2000), which rejected a claimed constitutional minimum on campaign contributions and instead said the test was whether Missouri's contribution limit was so low as to impede the ability of the candidates to amass the resources necessary for effective advocacy.  But since 2003, the Supreme Court overturned Vermont's ultra-low contribution limits in Randall v. Sorrell (2006).  Thus, the Ninth Circuit panel wondered whether Judge Lovell thought that Randall v. Sorrell abrogated circuit law in Montana Right to Life Ass'n.

Judge Lovell answered that question later last week, when he issued his promised findings and conclusions.  He wrote,

The Randall opinion is directly on point here.  The Randall decision undeniably paints a new gloss on the law and provides important insight into the lower bound for contribution limits.  Randall is intervening law that obviates Montana Right to Life's precedential value, particularly in light of the Randall plurality's expressed suspicion of Montana's contribution limits.

Op. at 28.

The case is now in the Ninth Circuit's court.  While its temporary stay is still in effect, the court may revoke it in light of Judge Lovell's findings, or it may not.  Whatever the court does with its temporary stay, it looks like the appeal will move forward.  The Ninth Circuit established a page for the case here.

SDS

Ninth Circuit: Yellow Pages Entitled to Strict Scrutiny as Protected Speech

The Ninth Circuit's opinion today in Dex Media West v. City of Seattle concerns a challenge to a Seattle ordinance regulating "yellow pages" phone directories for the purposes of waste reduction, resident privacy, and cost recovery of the directories. 

The bulk of the panel's opinion is devoted to the issue of whether the commercial speech standard or the higher strict scrutiny standard should apply.  The panel ruled that the commercial speech portions of yellow pages directories were inextricably intertwined with the noncommercial aspects AND that the yellow page directories "as a threshold matter" "do not constitute commercial speech under the tests of Virginia Pharmacy and Bolger." [Virginia Pharmacy Bd. v. Va. Consumer Council, Inc., 425 U.S. 748 (1976); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)].

In protecting the yellow pages directories by subjecting regulations to strict scrutiny review, the panel essentially found that the divide between the yellow pages and newspapers was simply too thin:

To be sure, the Yellow Pages Companies are in the business of selling advertisements and contracted to distribute the noncommercial speech to make their advertising space more desirable due to greater directory use. But it is important to keep in mind that the First Amendment protections available to newspapers and similar media do not apply only to those institutions of the type who “have played an historic role in our democracy.” To assume that every protected newspaper, magazine, television show, or tabloid’s “noncommercial” content precedes and takes priority over the publishing parent company’s desire to sell advertising is at odds with reality and the evidence in the record.

Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows, and similar media that does not turn on an evaluation of their contents.

The panel concluded, therefore, that "the yellow pages directories are entitled to full First Amendment protection."

The panel did not consider whether any of the proferred governmental purposes were compelling because it decided the ordinance was not "the least restrictive means available to further them."  It stated that Seattle could support the  companies' own opt-out programs or even simply fine the companies rather than compel them to finance the city's programs.  Thus, the ordinance was declared unconstitutional.

RR
[image via]

 

Daily Read: Arlen Specter on the Wall Between Church and State

Senator Arlen Specter (pictured), who died yesterday, was known for his involvement with many constitutional law issues including Supreme Court Justice nominations.

He also had a few things to say about the Establishment Clause:

The central problem with basing public policy on faith or religious belief is that, inevitably, there is the question of whose faith or religious belief. Put prayer in the schools and inevitably it becomes a question of whose prayer. Let us remember that most American Catholics began sending their children to parochial schools not because there was no prayer in America's public schools, but because the prayer that was there was the wrong kind of prayer. If we institutionalize school prayer, can we seriously expect that religious groups will not want to have some control over about the form and content of those prayers? Indeed, who other than religious groups could we possibly expect to fashion prayers and forms of devotion?

Arlen Specter, Defending the Wall: Maintaining Church/State Separation in America, 18 Harv. J.L. & Pub. Pol'y 575 (1995). 

Specter's essay explicitly states it was prompted by his "incidental reference" to "the basic American principle of separation of church and state” during the 1994 Iowa State Republican Convention that "caused the hall to erupt with boos." 

RR
[image via]

Rabbis File Complaint Against NYC Regulation Requiring Circumcision Notice

The complaint filed in the Southern District of New York federal court in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene challenges the constitutionality of a recently passed regulation regulating circumcision on the basis of the First Amendment.  This is a much more narrow regulation that the San Francisco proposal to ban all male circumcision.

The NYC regulation, §181.21, goes into effect October 21 and amends the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision:

A person may not perform a circumcision that involves direct oral suction on an infant under one year of age, without obtaining, prior to the circumcision, the written signed and dated consent of a parent or legal guardian of the infant being circumcised using a form provided by the Department or a form which shall be labeled “Consent to perform oral suction during circumcision,” and which at a minimum shall include the infant’s date of birth, the full printed name of the infant’s parent(s), the name of the individual performing the circumcision and the following statement: “I understand that direct oral suction will be performed on my child and that the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.”

The complaint's first count contends that the city may not compel speech absent a satisfaction of strict scrutiny, and that the section requires the person performing the circumcision - - - the mohelim in Orthodox Jewish tradition - - - to disseminate advice that he would not otherwise give, with which he disagrees, and that is a "value-based opinion" rather than a fact.  Interestingly, this is similar to the arguments against abortion consent procedures and warnings, although the complaint also notes that the mohelim are not commercial or professional actors.

The second - - - and perhaps more predictable count - - - sounds under the First Amendment's free exercise clause (and a subsequent count invokes the New York Constitution's similar clause).  The complaint alleges that the regulation was

designed to target the “practice known as metzitzah b’peh,” and the Department’s deputy commissioner for disease control described the regulation as an effort to “regulat[e] how part of a religious procedure is done”

This "targeting," of course, would mean the law would be subject to strict scrutiny under Church of Lukumi Babalu Aye v. City of Hialeah (1993), the case involving the ritual slaughtering of animals as a practice of the Santeria religion.  The ordinance of City of Hialeah had exemptions for other types of slaughter, a problem not only as to the "targeting" inquiry, but also as to the application of strict scrutiny.  

 

RR

Daily Read: Vikram Amar on Scalia on Originalism

Over at Justia today, ConLawProf Vikram Amar (pictured) responds to Justice Scalia's well-publicized and controversial remarks that originalism makes issues such as "homosexuality" and abortion "easy."

Amar writes:

But to say that originalism is important and helpful does not mean that it is easy. To see this, let us first look at what it would mean to say that all constitutional disputes should be analyzed and resolved by exclusive reference to originalism.  It would mean, among other things, that the Supreme Court’s cases from the 1960s holding that states may not impose poll taxes or property qualifications on the franchise, because under the Equal Protection Clause and other parts of Section One of the Fourteenth Amendment there is an individual right to vote for legislative elections, are flawed.  So too would be the cases holding, again under the Equal Protection Clause, that states cannot draw voter districts of significantly different sizes (thereby discriminating against urban voters); originalism would call into question the idea that the Equal Protection Clause guarantees “one person, one vote” in legislative elections.

 Amar does not add - - - and perhaps he does not need to - - - any discussion of Bush v. Gore. 

Instead, Amar focuses his argument on cases that Scalia himself implicated.  Amar's ultimate conclusion is probably one that almost every law student, and most ConLawProfs, could credit:

My point here is not to disagree with any particular outcome that Justice Scalia supports in these or other areas—in fact, I sometimes agree with his constitutional bottom line, and at other times do not.  But my goal here has simply been to suggest that all of this stuff is a long way from “easy.”

RR

Court Remands USDA Loan Denial for Religion Clause Evaluation

Judge Reggie Walton (D.D.C.) remanded a religious service organization's appeal of its denial of a USDA loan to the agency for review of the constitutional claims involved in the appeal.  The ruling in Care Net Pregnancy Center v. USDA means that the agency will take the first crack at the Free Exercise and Establishment Clause and free speech claims in the case.

Care Net applied for a USDA loan through the Community Facilities Loan Program, which makes and guarantees loans to non-profits and others for essential services in rural areas.  Care Net intended to use the loan to purchase property for its "Learn to Earn" program, including classes that help clients prepare for parenthood and option Bible study.  Care Net proposed to host its optional Bible study after hours in the same space as its parenting classes and thus claimed that its optional Bible study--the only religious aspect to its program--added no cost to the purchase and renovation of the property.  In short, the religious aspect of the program merely piggy-backed on the secular aspect.

The USDA nevertheless denied the application, stating that the project was not eligible under agency regs.  Care Net appealed to a USDA hearing officer, arguing, among other things, that the denial violated free speech and the Free Exercise Clause; the agency said that granting the application would violate the Establishment Clause. 

The hearing officer affirmed the agency's denial of Care Net's application based on an agency reg that reads in relevant part,

Where a structure is used for both eligible and inherently religious activities, direct USDA assistance may not exceed the cost of those portions of the acquisition, construction, or rehabilitation that are attributable to eligible activities in accordance with the cost accounting requirements applicable to USDA funds.

7 C.F.R. Sec. 16.3(d)(1).  The hearing officer wrote that Care Net failed to provide sufficient information about its program to allow the USDA "to realistically separate the eligible activities from the inherently religious activities either by time or space, thereby creating an excessive entanglement between Government and religion."  The officer rejected Care Net's argument that the regulation allowed the agency to issue a loan for the full amount of the project, when the religious portion of the project merely piggy-backed on the secular portion (and didn't add anything to the cost).  The officer declined to address any constitutional claim, however, beyond the statement that Care Net's proposed use would cause excessive entanglement with religion.  (The officer wrote that his role was simply to apply agency regs, not to rule on their constitutionality.)

Judge Walton affirmed the hearing officer's interpretation of the regulation--that the regulation prohibited loans for projects that didn't sufficiently segregate the costs of religious and secular components--but remanded the case for consideration of the religion clause claims and the free speech claim.  Quoting D.C. Circuit law, Judge Walton wrote that "[a]gencies . . . have 'an obligation to address properly presented constitutional claims which . . . do not challenge agency actions mandated by Congress,'" in order to ensure against premature or unnecessary constitutional adjudication and to give the courts teh benefit of the agency's first-crack analysis.

SDS

Sixth Circuit on Ohio Voting Issues Arising from Poll-Worker Error

In its opinion today in Northeast Ohio Coalition for the Homeless v. Husted, consolidated on appeal with SEUI v. Husted, the Sixth Circuit considered yet another  problem with Ohio's voting regime and as in Obama for America v. Husted decided last week regarding early voting ruled mostly against the state. 

The 35 page per curium opinion considers Ohio’s requirements that provisional ballots be cast in the correct precinct and with completed voter affirmation, making no exception for wrong-precinct and deficient-affirmation ballots caused by poll-worker error.

The Sixth Circuit affirmed the district judge's injunction in SEIU v. Husted regarding wrong precinct voting as a denial of equal protection.  After extension discussion regarding factual nuances of the district court's order, the Sixth Circuit upheld the wrong precinct voting injunction.  However, in a very brief analysis, the panel reversed the injunction against deficient affirmation ballots, finding that the "spotty record" did not support the judge's presumption of poll-worker error.

Yet the panel's own ruling created some equal protection issues:

we note some additional issues our ruling creates that must be resolved. While we have set aside the portion of the preliminary injunction addressing deficient-affirmation provisional ballots, the consent decree continues to mandate that some deficient-affirmation provisional ballots will be counted. This discrepancy appears to create a Bush v. Gore problem. Similarly, the consent decree standing on its own also raises Bush v. Gore issues by virtue of treating some provisional ballots differently than others. This latter concern is not purely academic, as the consent decree will be the only agreement governing these issues for Ohio’s 2013 primary elections.

Thus, the panel remanded the Northeast Ohio Coalition for the Homeless case for the district judge to "expeditiously address" the equal protection issue created by the consent decree’s provision for the counting of deficient-affirmation ballots and the motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots.

RR
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Daily Read: Rebecca Lee on Core Diversity

Professor Rebecca Lee (pictured) notes that "in this age of ““diversity talk,”” it may seem that the issue of workplace discrimination is somewhat passé, or at least not as much of the problem it was in the past."  That was certainly some of the sentiment in yesterday's oral argument in Fisher v. UT.  But Lee offers a more sophisticated interpretation, arguing that

Most employers implement models of diversity that promote only what I call ““surface diversity”” and ““marginal diversity,”” both of which focus on diversifying the organization’’s ranks but which stop short of valuing diversity in full form, thus inhibiting substantive equity. The surface and marginal diversity paradigms neglect to treat the malady of embedded discrimination because they emphasize demographic diversity rather than diversity in a substantive sense. A focus on numerical parity alone, however, will not bring about racial and gender equity. Although women and people of color have been entering various workplaces in increasing numbers, the way in which work gets done has not changed much. This is because simply adding more members of previously excluded groups to the organization may not change dominant organizational practices that remain biased against such groups.

Instead in her 2010 article entitled Core Diversity, available on ssrn, Lee argues that much deeper and more structural change is necessary.  This is definitely worth a read.

Lee's follow-up article, Implementing Grutter's Diversity Rationale: Diversity and Empathy in Leadership, available on ssrn, is also essential reading.  In this article, Professor Lee makes more explicit the links between educational diversity and employment diversity.

RR

Congressional Denial of Automatic COLAs for Judges Violates Compensation Clause

The en banc Federal Circuit ruled on Friday in Beer v. U.S. that congressional denial of automatic and determinate cost-of-living-adjustments to the salaries of federal judges violated the Compensation Clause in Article III.  The ruling sends the case back to the Court of Federal Claims and almost surely means that federal judges will receive retroactive COLAs, unless the case is overturned on appeal (to the Supreme Court).  It means that Congress can't go back on automatic and definite COLA increases for judges--or any other future salary adjustments that are sufficiently determinate to set judges' expectations--even if it can go back on future year COLA increases if they are sufficiently squishy.

The case involved a 1989 congressional act that set an automatic and determinate formula--a "mechanical" formula, according to the court--for COLAs for federal judges.  (Under the prior law, enacted in 1975, judges' COLAs were pegged to the President's report to Congress on General Schedule federal employee COLAs, which, in turn, was set based on annual reports by the Bureau of Labor Statistics and the Advisory Committee on Federal Pay.  The 1975 law, then, set no definite formula for future COLAs; instead, COLAs could vary year-to-year based on the BLS and Advisory Committee reports and based on the President's report to Congress.)  Despite the automatic formula in the 1989 act, Congress denied COLAs in 1995, 1996, 1997, and 1999.  Judges sued, arguing that these denials violated the Compensation Clause.

The Compensation Clause says that federal judicial  "Compensation . . . shall not be diminished during [judges'] Continuance in Office."  But the framers deliberately declined to tie judicial salaries to commodities or other standards of measurement (to establish an early kind of COLA), and the Clause does not require periodic increases in judicial salaries to offset inflation or other economic factors.  Indeed, the Supreme Court ruled in United States v. Will (1980) that congressional acts declining to extend COLAs under the 1975 law did not violate the Compensation Clause.  (The Court in Will said that Congress could go back on future year COLAs, but not on current year COLAs, under the 1975 law, because "a salary increase 'vests' . . . only when it takes effect as part of the compensation due and payable to Article III judges"--in the current year.)

The difference here, said the court, is that the 1989 law, with its automatic and determinate formula, set judges' salary expectations, which then became part of their "Compensation" for Compensation Clause purposes.  The court explained:

In essence, the statutes reviewed in Will required judicial divination to predict a COLA and prevented the creation of firm expectations that judges would in fact receive any inflation-compensating adjustment.  In that context, as the Supreme Court noted, no adjustment vested until formally enacted and received.  However, the statutes in Williams and in this case provide COLAs according to a mechanical, automatic process that creates expectation and reliance when read in light of the Compensation Clause.  Indeed a prospective judicial nominee in 1989 might well have decided to forego a lucrative legal career, based, in part, on the promise that the new adjustment scheme would preserve the real value of judicial compensation.

Op. at 13.  

Moreover, the automatic formula in the 1989 act was part of a legislative quid pro quo that included limits on judges' outside income, effectively limiting their income.  Thus, "the statute ensured that real judicial salary would not be reduced in the fact of the elimination of outside income and the operation of inflation."  Op. at 15.

In ruling that congressional denials of COLAs violated the Compensation Clause, the court overturned its own precedent, Williams v. United States, which held that denials of COLAs under the 1989 law did not violate the Compensation Clause.

SDS