This week in law and policy

Bush administration must charge Padilla or let him go, SC District Court rules

On Monday, Judge Henry Floyd, a 2003 Bush appointee, ruled that the Bush administration has 45 days to either charge Jose Padilla with a crime or free him from detention. In June, the Supreme Court ruled that Padilla had filed his habeas corpus motion in the wrong court because he was being held in South Carolina. Padilla's lawyers refiled the suit in the District Court for the District of South Carolina.

"The President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant," writes Judge Floyd, citing Youngstown Steel as authority for refusing to allow the Executive to usurp the power of the Legislature--including the right to suspend the Great Writ. No barrier to charging Padilla with his alleged crimes exists; he is a citizen of the United States; he must be charged or freed.

Supremes rule juvenile death penalty unconstitutional

This week the Supreme Court marked another major change in United States criminal law as it ruled the juvenile death penalty unconstitutional (Chief Justice Rehnquist and Justices O'Connor, Thomas, and Scalia dissenting). Roper v Simmons overturned Stanford v Kentucky (1989), ending "the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty" (majority opinion).

The decision follows Atkins v Virginia (2002), which ruled the death penalty unconstitutional for mentally retarded offenders.

While the dissenting Justices stated that these are decisions for the legislatures and (in the case of Justice Scalia) that international law and opinion should play no role in American law, the majority was persuaded by a changing consensus in the United States (thirty states now ban the juvenile death penalty, among them twelve who have banned the death penalty altogether). In the past ten years, only three states have executed offenders who were juveniles when they committed their crimes: Oklahoma, Virginia, and Texas. At the same time, use of the juvenile death penalty is anathema to the international and human rights communities.

Oral arguments in Ten Commandments cases

On Wednesday, the Court heard arguments in two allied cases challenging the constitutionality of Ten Commandments displays on public property (Van Orden v Perry [Erwin Chemerinsky of counsel] and McCreary County v ACLU of Kentucky). The cases test the application of the Establishment Clause, and in particular the question whether allowing such displays within composite displays of "legal heritage" constitutes pretext. More coverage, including links to the briefs, at ScotusBlog.

Supremes rule on racial classification in prisons in Johnson v California

The Court ruled that California's practice of racially segregating newly-arrived prison inmates for sixty days must survive strict-scrutiny review (Justices Thomas and Scalia dissenting; Chief Justice Rehnquist did not participate). In doing so, the Court chose its equal protection standard over the more deferential review it has given to state correctional facilities' policies (much to the dissenting Justices' chagrin). Excellent analysis by Vikram Amar here.

The State AG's and Walmart.

Connecticut AG Dick Blumenthal slammed Wal Mart last week for labor violations, asking other states to join Connecticut in investigating allegations the world's largest retailer broke child labor laws.
Columbia 2L - Peter Romer-Friendman - has written an article on the role of AG's in enforcing
wage and hour laws. That paper can be found at http://www.stateag.org which is part of the AG Library, a CLS entity. The AG Library has a great newsletter for folks interested in the role of the State AGs in multi-state litigation.

This week in law and policy

Negroponte tapped as intelligence chief

The biggest news on the law and policy front this week was President Bush's naming of Ambassador John Negroponte to the new post of Director of National Intelligence, in which capacity he will direct fifteen agencies. Negroponte, who currently serves as US Ambassador to Iraq and was formerly US Ambassador to the United Nations, is widely described by foreign service professionals as a diplomat with the potential to draw together intelligence heads not always amenable to cooperation.

Zaid A. Zaid (CLS '07), who worked for Ambassador Negroponte while a State Department employee, applauds the nomination: "I've seen Ambassador Negroponte in action. I worked for him for a year, and I know that he has the stature, respect, and personality to be able to pull together the 15 intelligence agencies. Ambassador Negroponte is a seasoned diplomat, and the diplomacy skills he possesses are what is going to be needed to navigate the delicate web that ha been woven in Washington amongst the intelligence agencies. I wish him the best of luck. If anybody can do it, he can."

Thus far, criticism of the appointment has come from Human Rights Watch, along with other human rights groups, who highlight Ambassador Negroponte's actions while Ambassador to Honduras during the early 1980s. Negroponte allegedly turned a blind eye to Contra abuses and silently condoned Honduran military unites that made use of sub-rosa kidnappings and killings.

Kyoto Treaty takes effect, but United States not on board

The Kyoto Treaty on global warming went into effect on February 15, but faces an uncertain future due in part to the active opposition of the Bush Administration (despite the active role taken by the U.S. in negotiating the treaty during the 1990s).

Opponents criticize the treaty as economically inefficient and discriminatory, since industrializing nations like China and India are not held to the same limits as more developed nations like the European Union. Proponents respond by pointing to the symbolic value of the treaty and its precedential value in encouraging environmental innovation.

President Bush submits judicial nominations

In a signal that he's ready for another battle over the judiciary, the President has sent 20 nominees to the Senate , including several who had previously been blocked. Nominees include particularly contentious choices Priscilla Owen (5th Cir.) and recess appointee William Pryor (11th Cir.), whose term expires at the end of the year.

Senate Majority Leader Bill Frist has once again threatened to change Senate filibuster rules to allow each nominee an "up or down vote." Nominees will first pass through the Senate Judiciary Committee and will come to the floor for debate (possibly) later this year.

Of those whom Bush has nominated to the judiciary, 204 have been confirmed and 10 filibustered for an overall approval rate of 95.3%.

Brookings Institute releases study on African Americans and "job sprawl"

According to a study released by the Brookings Institute, the exodus of jobs from urban core areas to suburbs has separated jobs from African Americans and worsened racial segregation. The study suggests that more balanced metropolitan development, including better transportation and urban renewal, could help lessen segregation and improve job prospects in the long run.

FDA creates new drug oversight board

Possibly in reaction to new revelations about the dangers of pain medications like Vioxx and Celebrex, the FDA has created a new Independent Drug Safety Oversight Board to study medications that have been put on the market and improve the quality and quantity of publicly-available information about them (Washington Post coverage here).

City Council Speaker Gifford Miller at CLS

Speaker Gifford Miller visited CLS today to speak about his opposition to the Westside Stadium proposal advocated by Mayor Bloomberg, along with other challenges facing the City.

One of the Speaker's biggest objections is the financial burden; Speaker Gifford estimated that the project budget potentially pushes $1B of the costs onto the shoulders of New Yorkers. And while the City's capital budget would be deferred to build the stadium, Mayor Bloomberg has cut capital funding for new public schools.

Another fundamental problem, according to Speaker Gifford, is the lack of City Council review; the Stadium proposal and its funding mechanisms will not be subject to Council vote, but rather to binding (secret, closed) arbitration. In addition, he states, the price has been unfairly manipulated: the Jets want a $35M price tag, which wildly undervalues the property. There has been no public competitive bidding process, either, so we have no idea whether the Jets truly are the only ones who want to build on 12 acres by the Hudson River.

Speaker Gifford says that if elected mayor, he would put education and other public priorities ahead of the stadium. He is prepared to fight against the stadium, which he says would be "disastrous."

Preservation and expansion of affordable housing and the fiscal burden of homeland security unfunded mandates were addressed in the question session.

The event was sponsored by the Columbia Democrats, the Columbia Political Union, and the American Constitution Society.

This week in law and policy

New lawsuit filed on behalf of 500+ "John Does" held in Gitmo

On Friday, the Center for Constitutional Rights filed a lawsuit in the DC District Court on behalf of more than 500 Guantanamo Bay detainees. Thus far, these "John Does"--so designated because the government does not reveal the identities of indenitely detained individuals--have been effectively denied access to counsel.

The complaint argues that the holding of Rasul v Bush gives each detainee the right to challenge his or her status in the United States courts. Without knowing their identities or having physical access to them, however, lawyers have found it impossible to utilize the ruling. Other DC District Court cases have conflicted with respect to Rasul v Bush's significance. Go to the Center for Constitutional Rights for more information about the case, along with a link to the complaint.

In other Guantanamo news, SCOTUSblog (note the new URL) reports that on Thursday the Justice Department asked the DC CoA to allow a direct and expedited appeal of Judge Green's ruling that the detainees have the right to challenge their detention in US federal court. The question presented is whether the detainees have any rights under the United States Constitution and the Geneva Convention Relative to the Treatment of Prisoners of War. The request is very likely to be granted.

Ex-detainee says he was tortured

Today's New York Times reports that Mamdouh Habib, an Australian citizen who was born in Egypt, claims that he was tortured by United States authorities after being arrested in Pakistan soon after September 11, 2001. From Pakistan, he was taken to Egypt, Afghanistan, and Guantanamo Bay during the 40 months that he was held as a terror suspect. He has been released and has returned home.

At one point during his detention, Habib was sent to Egypt where he was interrogated harshly--more harshly than would have been possible within the United States. The process of taking suspects elsewhere to be "questioned"--and, as even some agents involved in the detention system admit, possibly tortured--is known as "rendition." The New Yorker's 2/14/05 issue covers rendition in detail.

Senate Alters Class-Action Lawsuit Rules

In a legislative move with tremendous potential impact on civil rights groups, consumers, and labor organizations, on Thursday the Senate voted to remove many class-action lawsuits from state courts to federal courts.

Such suits may still be brought if the requested relief totals at least $5 million and at least one class member is diverse with respect to the defendant. However, a 1985 Supreme Court ruling means that they are barred if there are significant differences in the relevant law between the states of which class members are citizens. In addition, such suits will face already-overburdened federal dockets and potentially lower chances of being heard in a timely manner.

Supporters and detractors differed sharply as to the rule change's ultimate consequences, with Sen. Bill Frist claiming that the bill stops "lawsuit abuses" and Sen. Edward Kennedy identifying consumers as the bill's biggest victims.

ABA report on indigent defendants: grim news

The ABA reports that each year, thousands of indigent defendants go through the American legal system without meaningful legal representation. See Jurist for more.

Lawyer convicted of aiding terrorists

Lynne F. Stewart has been convicted of aiding terrorism by delivering messages from her convicted client to his followers in the outside world. While she had signed an agreement stating that she would not do so, Stewart testified that she believed that an unwritten "bubble" in the prison rules allowed her conduct and that acting as a go-between was necessary to appropriately represent the interests of her client.

In the shadow of Brown

Is racially integrated K-12 education a compelling state interest?
Should we still be using race to get beyond race?
Is separate unequal?

Fifty years after Brown v. Board of Education, these questions still lie at the heart of public debate over school desegregation. They took center stage once again at the First Circuit Court of Appeals' en banc hearing in the case of Comfort v. Lynn School Committee on Monday afternoon.

The case tests the constitutionality of the Lynn School Committee student assignment plan, adopted twenty years ago in an attempt to comply with Massachusetts' Racial Imbalance Act. Where traditional court-ordered desegregation plans often require mandatory assignments to achieve their ends, Lynn's innovative plan has two parts.

• First, children are assigned to their neighborhood school.
• The desegregative prong comes into effect only if parents wish to transfer their child to a different public school. In that case, the transfer is permitted only if it does not increase racial isolation at the sending or the recieving school.

That's it. And this simple plan has had huge impact on the Lynn school population. In a system that serves approximately 15,000 children, over a third use the transfer option to attend non-neighborhood schools each year. Of those, 3,000 are integrative transfers. The plan has succeeded in halting and reversing the trend of public school resegregation in Lynn--a trend tracked in great detail by the work of the Civil Rights Project (you can read the CRP's report on nationwide resegregation, released January 15, 2005, at http://www.civilrightsproject.harvard.edu/research/deseg/deseg05.php).

Given the limited application of the plan and its sizeable impact--given the bang for the buck, so to speak--what's the problem?

In a word, race. Plaintiffs deem the plan unconstitutional because it uses race as a tool in granting or refusing school transfers, thus instituting "racial preferences." In addition, plaintiffs argue that "no benefits flow from a racially integrated education," as their counsel stated in the hearing on Monday.

The three-judge panel that originally heard the case disagreed with the plaintiffs' assertions, ruling instead that "the defendants have made a persuasive case that a public school system has a compelling interest in obtaining the educational benefits that flow from a racially diverse student body." Comfort v. Lynn School Committee, No. 03-2415, 2004 U.S. App. LEXIS 21791, at 17 (D. Mass. Oct. 20, 2004).

But is the Lynn plan narrowly tailored to that interest? Not according to the panel, which drew on the Grutter and Gratz decisions in finding that "because the Lynn plan makes race decisive and forgoes individualized consideration of transfer applications, it cannot be deemed narrowly tailored to the community's compelling interest in the educational benefits of diversity." Id. at 19.

The Circuit Court thus found similarities in the use of race in two very different contexts: highly competitive higher-education admissions and noncompetitive K-12 transfers. In finding the latter "mechanical," the court appears to demand a more flexible system that would make use of multiple factors.

The finding spurred the following comment from David Harris, Exec. Dir. of the Boston Lawyers' Committee for Civil Rights Under the Law:

The judges seemed determined to treat this case as an affirmative action (or quota) case rather than a school assignment case. Racial segregation in schools has been illegal since Brown, and school assignments made on the basis of race to achieve integration and diversity in secondary schools have been legal since Swann. The parties and the court missed the entire point of the Lynn plan and in doing so probably endanger the MA Racial Imbalance Act. In that scenario, the children--all children--lose.

NAACP LDF Assistant Counsel Chinh Q. Le notes that in this case, as in similar cases traveling through the courts in Washington and Kentucky, voluntary school desegregation plans have been upheld at the district level and struck down at the appellate level. "Each of the plans is unique in and of itself," comments Le:

Opponents of voluntary racial integration in the K-12 context tend to ignore any differences in the policies they challenge and focus instead on the singular issue of race. But the fact that the student assignment strategies that are employed to further integration vary so greatly suggests that local officials may know better than courts or litigants how best to serve the interests and needs of the communities they represent.

As Le notes, an ironic result of these cases could be a decreasein local control over public education. If the Lynn plan is ruled unconstitutional, officials, parents, and school committees will find it harder to devise plans that will pass constitutional muster.

In the eternal and delicate balancing act between individual rights and the public interest, plaintiffs in effect argue that the right of a parent to transfer her child to a non-neighborhood (but educationally equivalent) school is more important than the public interest in racially integrated schools.

Apparently, for the plaintiffs, "separate but equal" education is acceptable as long as parental choice is perfectly preserved.

As civil rights lawyers continue to labor in the shadow of Brown, we must not lose sight of Brown's most crucial insight: separate is never equal. And as resegregation threatens the civic life of our nation, now is the time to fight for that truth.

This week in law and policy

NY Supreme Court ruling declares gay marriage ban unconstitutional

New York Supreme Court Justice Doris Ling-Cohan ruled yesterday that New York State's refusal to issue marriage licenses to gay couples violates the state's constitution. Her ruling was based on New York's 1909 Domestic Relations Act, which restricted marriage to a man and a woman--a restriction now deemed to violate the due process and equal protection rights of LGBT state citizens. The ruling applies only to New York City and requires that city officials begin issuing licenses to same-sex couples within thirty days.

President Bush's State of the Union address renewed his call for a constitutional amendment banning gay marriage.

Gonzales becomes first Latino-American Attorney General

Alberto Gonzales was confirmed this week as Attorney General after a contentious Senate debate and a 60-36 vote that ran largely along party lines (6 Democrats voted to confirm).

En-banc 1st Circuit hearing on voluntary school desegregation case Monday

In a case with potentially wide-ranging impact on communities in Massachusetts and across the nation, the First Circuit Court of Appeals will sit en banc Monday to hear oral arguments in Comfort v. Lynn School Committee, No. 03-2415 (1st Cir. October 20, 2004). The Lynn plan assigns children to neighborhood schools, but prohibits transfers that would increase the racial imbalance at the sending or receiving school. The plan seeks to uphold Massachusetts' 1974 Racial Imbalance Act. In October, a three-judge panel applied the Grutter and Gratz strict-scrutiny test and found Lynn's voluntary desegregation plan unconstitutional; it was not adequately narrowly tailored because it "makes race decisive and forgoes individualized consideration of transfer applications." Application of the higher-education strict-scrutiny test to K-12 education is a key issue in the case. I'll be in Boston to attend the oral arguments and will blog about it next week.

Deputy AG urges prosecutors to report judges who deviate from sentencing guidelines

Deputy Attorney General James Comey issued a memo on January 28 encouraging federal prosecutors to report to Congress and the Department of Justice any judges whose sentences fall outside federal sentencing guidelines. While Booker (January 12, 2005) declared the guidelines advisory, the memo declares that judges "must take all steps necessary to ensure adherence to the sentencing guidelines." A House Judiciary Committee has scheduled hearings for February 10 on Booker.

Federal judges issue conflicting Gitmo rulings

In the latest chapter of the legal morass created by the detention of foreign nationals at the US military base at Guantanamo Bay, two DC District Court judges issued opposing rulings regarding detainees' habeas corpus rights within the same two-week period.

On January 19, District Judge Richard J. Leon ruled that the seven detainees before him had no rights that could be asserted in a habeas petition. Khalid v. Bush (docket 04-1142) and Boumedienne v. Bush (docket 04-1166). SCOTUS blog reports: “The Court concludes,” Judge Leon wrote, “that no viable legal theory exists by which it could issue a writ of habeas corpus” for “non-resident aliens captured abroad and detained outside the territorial sovereignty of the U.S., pursuant to lawful military orders, during a congressional [sic] authorized conflict.”

On January 31, District Judge Joyce Hens Green, who is coordinating the Guantanamo habeas cases for the district, concluded precisely the opposite in ruling that the detainees before her do have constitutional and international treaty rights cognizable in a US court. In re Guantanamo Detainee Cases.

Therefore, while Judge Leon read the Supreme Court's June 28 ruling to say that detainees have the right to file habeas petitions, but lack the ability to assert rights via those petitions, Judge Green concludes that such rights exist and are enforceable. While Judge Leon sees detainee rights as a matter in the purview of the executive and legislative branches only, Judge Green maintains that preservation of such rights require a judicial check.

The issue will certainly go to the Supreme Court, and likely will be expedited. Yesterday, Judge Green set up an immediate appeal to the Circuit Court at the request of the Government. The Bush Administration contends that allowing trials of the Guantanamo Bay detainees will reveal necessarily secure information and endanger military operations and US citizens.

As always, for more Supreme Court news, see the SCOTUSblog at http://www.goldsteinhowe.com/blog/index.cfm.