July 2009 Archives

Recently retired Supreme Court Justice David H. Souter will address the American Bar Association on Saturday about improving civic education in the United States.

Souter, who retired in June after 19 years on the high court, has mentioned in at least one other public address in recent months that he would be getting involved in the civic education effort, aimed both at his native New Hampshire and the nation.

The Associated Press reports here that Souter's interest was prompted in part by the work of the New Hampshire Supreme Court Society, which formed a task force last year to assess the state of civics education in New Hampshire schools.

Souter addresses the opening assembly of the ABA's annual meeting in Chicago on Saturday. On Monday and Tuesday, the ABA's House of Delegates will consider a resolution that urges policymakers to establish an "office of civic education" in the U.S. Department of Education.

The resolution also urges that the National Assessment of Educational Progress (NAEP) in civics and U.S. history be conducted every four years, with results reported at the state and national levels. Currently, those subjects are assessed only periodically and the results are not reported at the state level. (The ABA resolution No. 122, at page 128 of this big PDF document.)

Posted by Mark Walsh at 3:11 PM | Permalink | No Comments | TrackBacks (0)

By guest blogger Erik Robelen:

Judge Sonia Sotomayor moved one step closer to taking a seat on the U.S. Supreme Court today, when her nomination was approved by the Senate Judiciary Committee by a vote of 13 to 6, with just one Republican joining the panel's 12 Democrats. President Barack Obama's nominee is expected to win final confirmation by the full Senate next week.

"Judge Sotomayor is well qualified," said Sen. Patrick J. Leahy, a Democrat from Vermont who chairs the Judiciary Committee, noting her "tremendous experience" and "wisdom." He added, "She’s a restrained, fair, and impartial judge who applies the law to the facts to decide cases."

But the panel's ranking Republican, Sen. Jeff Sessions of Alabama, said he opposed the president's pick for the high court. He argued that her remarks in multiple speeches over the years raised serious concerns about her ability to bring impartiality to issues before the high court. He also criticized her decisions in several recent cases from the U.S. Court of Appeals for the 2nd Circuit, including the high-profile case of Ricci v. DeStefano, in which a group of firefighters from New Haven, Conn., alleged reverse discrimination.

"The decisions are extremely short, oddly short, and lack careful analysis," Sen. Sessions said. "Each reaches an erroneous conclusion."

He said specifically about the Ricci case, which was reversed in June by the Supreme Court on a vote of 5-4, "Her opinion violated the constitutional demand, I believe, that no one should be denied the equal protection of the laws because of their race. ... That was a big case, a huge case of great importance."

Judge Sotomayor and two fellow judges rejected the firefighters’ claims and upheld the city’s decision to throw out a promotions exam. The city said it feared the results, in which no black firefighters scored high enough to win a promotion, could spur a civil rights lawsuit from minorities. Mark Walsh wrote a recent analysis here of what the case could mean for school districts.

Legal issues affecting education surfaced repeatedly during the Senate confirmation hearings for Judge Sotomayor earlier this month, most notably as the senators and the nominee discussed racial diversity and discrimination, including a schools case she handled at the appellate level. As I noted in a previous story, Judge Sotomayor has handled a relatively small number of cases dealing directly with K-12 education during her 17 years as a federal judge at the district and appellate court levels.

The one Republican on the Judiciary Committee to vote for Judge Sotomayor was Sen. Lindsey Graham of South Carolina. Although Sen. Graham said she was not the nominee he would have chosen for the high court, he argued that she is "well qualified," of "good character," and has not demonstrated the "judicial activism" for which some conservatives have criticized her.

Sen. Graham argued that her judicial approach is "left of center, but certainly within the mainstream."

Several senators at today's Judiciary Committee meeting expressed frustration with the current state of the Supreme Court hearings process, in which the nominees typically reveal little about their judicial philosophy and how they would approach key issues, instead often saying it would be inappropriate to "prejudge" potential future cases before the court.

"I remain unconvinced that the dodge now all nominees use" is reasonable, said Democratic Sen. Russell D. Feingold of Wisconsin. "These hearings have become little more than theater. … I do not think it makes for meaningful advice and consent.”

Sen. Tom Coburn, a Republican from Nebraska, echoed that concern in his remarks.

“The great disturbance we have is that we can’t get real answers," he said. "We need to change the rules for the hearings… We need to let judges really let us know what they think."

Photo: U.S. Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., right, talks with the committee's ranking Republican, Sen. Jeff Sessions, R-Ala., during the committee's vote on the nomination of U.S. Supreme Court nominee Sonia Sotomayor on July 28.
—Susan Walsh/AP

Posted by Erik Robelen at 11:58 AM | Permalink | 1 Comment | TrackBacks (0)

Sen. John Cornyn pressed Judge Sonia Sotomayor this morning on whether she could agree with Chief Justice John G. Roberts Jr.'s view, as the senator put it, that "the best way to stop discriminating based on race is to stop discriminating based on race."

The Texas Republican was referring to Chief Justice Roberts's majority opinion in Parents Involved in Community Schools v. Seattle School District, the 2007 decision in which the Supreme Court sharply curtailed the ways school districts could permissibly use race in assigning students to schools. The chief justice's precise wording in his opinion was this: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Cornyn asked the question in regard to the much-discussed New Haven firefighters case, Ricci v. DeStefano.

Sotomayor's responded to the Roberts quote by saying, "The best way to live in our society is to follow the command of the Constitution, provide equal opportunity for all. And I follow what the Constitution says, that is, how the law should be structured and how it should be applied to whatever individual circumstances come before the court."

When pressed by Cornyn on whether she agreed with the chief justice's statement or not, Sotomayor said that expressing an opinion on that might suggest she agreed with the underlying decision in Parents Involved.

"And that was a very recent case," she said.

"I understand that you might not want to comment on what Chief Justice John Roberts wrote in an opinion, even though I don't think he was speaking of a specific case but rather an approach to the law which would treat us all as individuals with equal dignity and equal rights," Cornyn said."But let me ask you whether you agree with Martin Luther King when he said he dreamed of a day when his children would be judged not by the color of their skin, but by the content of their character. Do you agree with that?"

I think every American agrees with that," Sotomayor said. To which Sen. Cornyn replied, "Amen."

Posted by Mark Walsh at 11:52 AM | Permalink | 1 Comment | TrackBacks (0)

We're into the last day of questioning of Judge Sonia Sotomayor by the Senate Judiciary Committee. And while there are a lot of questions for her, there is also much speechifying by committee members, with the Supreme Court nominee not always having the chance to respond or react.

Sen. Lindsey Graham, R-S.C., expressed concerns again this morning about "society being changed by nine unelected people who have a lifetime appointment."

"There are all kinds of stories to tell in this country, and the court has, in the opinion of many of us, gone into the business of societal change not based on the plain language of the Constitution, but based on motivations that can never be checked at the ballot box," said Sen. Graham, who then cites the one case where even conservative Republicans would now agree that judicial activism was necessary.

"Brown v. Board of Education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do, certainly were not brave enough in my state," Graham said. "And if I had been elected as a senator from South Carolina in 1955, the year I was born, I would be amazed if I would have had the courage of a Judge Johnson [apparently a reference to the late Judge Frank M. Johnson of the U.S. Court of Appeals for the 11th Circuit] in the political arena."

"But the court went through an analysis that separate was not equal," the senator continued. "It had a basis in the Constitution after fact-finding to reach a reasoned conclusion in the law and the courage to implement that decision. And society had the wisdom to accept the court's opinion, even though it was contentious and literally people died."

Graham then turned to one of those "very difficult changes that are percolating in America," the question of gay marriage, without giving Judge Sotomayor the chance to chime in on his comments about Brown.

Posted by Mark Walsh at 11:24 AM | Permalink | 1 Comment | TrackBacks (0)

Below is the exchange from Wednesday afternoon in which a member of the Senate Judiciary Committee lauded Judge Sonia Sotomayor for her dissent that would have barred all strip-searches of girls in a juvenile detention center.

(As I noted in an earlier post, I had missed the exchange.)

As it turns out, the question from Sen. Patrick Leahy, D-Vt., the committee chairman, does not draw much response from Judge Sotomayor about strip-searches or student rights.

Leahy's basic logic appears to be this: Sotomayor once wrote a nice opinion against strip-searches. The Supreme Court had a case about strip-searches in schools, but at oral argument the men on the court weren't very empathetic about the intrusive search of the middle school girl. But Justice Ruth Bader Ginsburg makes her colleagues understand how bad this search was, and influences the case to the point where only one justice would have upheld the search. This, in turn, is why it is important to have diversity of gender (and other backgrounds) on the Supreme Court.

In response, Sotomayor agrees with the proposition that it is good to have a diversity of backgrounds on the courts.

Here is the exchange, as transcribed by me from C-Span:

SEN. LEAHY: In a different context, you sat on a three-judge panel on a case involving the strip-search of girls at a juvenile detention center. … In a dissent, you cited controlling circuit precedent, described what is involved in strip searches of these girls without individual suspicion, who had never been charged with a crime, … and warned that courts should be especially wary of strip searches of children, since youth is a time and condition of life when a person may be most susceptible to … psychological damage.

As a parent and a grandparent I agree with you. You also emphasized that many of these girls may have been victims of abuse or neglect, or were more vulnerable emotionally or mentally than other youths their age.

[Leahy notes that the Supreme Court this past spring considered a case about a strip-search in schools, Safford Unified School District v. Redding.]

During oral argument in that case, one of the male justices compared the girl’s strip search to changing for gym class. Several other of the justices’ reaction was simply laughter.

Justice Ginsburg, the sole female justice on the court, described the search as humiliating, something that most parents realize.

[Leahy notes that the court rules for student Savanna Redding, with Justice David H. Souter's majority opinion "adopting Justice Ginsburg’s position and reasoning."]

I believe these cases underscore the need for diversity. They underscore having judges with a different life experience on the federal bench, including the Supreme Court. It’s been said here several times deciding cases doesn’t just require a computer, it requires real people. It does require real people with different life experiences.

You are a role model and a mentor to many young people. … How do you think it affects these young people to see only one woman on the Supreme Court today? How might it affect the confidence in the judicial system of litigants like young Savanna Redding?

JUDGE SOTOMAYOR: Senator, I think it is one of the reasons that every president in the last, say, 20 or 25 years has attempted to promote diversity on a basic understanding that our society is enriched by a confidence that our legal system includes all members of society.

I know that Justice Ginsburg has spoken about the fact of how much she misses Justice O’Connor, and not because she does not have a good relationship with her colleagues. …

[It's important, Sotomayor says, that] Americans see [diverse] participation at every level of our legal system.

Posted by Mark Walsh at 12:26 AM | Permalink | 1 Comment | TrackBacks (0)

There were several factors that led the Supreme Court to overturn its “separate but equal” precedent with its landmark 1954 decision in Brown v. Board of Education, Judge Sonia Sotomayor said this afternoon.

“Brown v. Board of Education has often been perceived as a radical change by some, and the public viewed it as a radical change,” Sotomayor said to Sen. Herb Kohl, D-Wis., who had asked her about when it was appropriate for the Supreme Court to overturn its precedents.

“But if you look at the history over 20 years preceding” the Brown decision, Sotomayor said, “there were underpinnings that obviously gave the court some cause, some reason, to rethink this issue of ‘separate but equal.’”

She noted that the justices, in weighing the cases challenging segregation in K-12 education, had the famous dissent before them by Justice John Marshall Harlan in the 1896 case of Plessy v. Ferguson.

Harlan said “’separate but equal’ is just not consistent with the Constitution,” Sotomayor said.

Besides the factors that allowed the Brown court to overturn Plessy, Sotomayor said other factors were important when a Supreme Court justice weighs whether to overturn precedent, such as how many times the court itself has reaffirmed a particular ruling.

NOTE: I missed an exchange just before this one between Sen. Patrick Leahy and Sotomayor about the constitutionality of strip-searches of young people. (It came just after the committee had reconvened after a break.) I'll file an item after I have a chance to see the transcript of it.

Posted by Mark Walsh at 4:48 PM | Permalink | No Comments | TrackBacks (0)

Judge Sonia Sotomayor said that parenthood and the education system are the places for addressing the ills of society, not the courtroom.

“By the time a criminal defendant ends up in court, they've been shaped by their lives,” the Supreme Court nominee told Sen. Amy Klobuchar, D-Minn. “If you want to give people the best opportunity at success at life—it’s a message I deliver frequently to my community—it has to be through early childhood forward. If you're waiting to do that once they're before a judge in court, your chances of success have diminished dramatically.”

“And so one of my messages in many of my speeches to my community groups is pay attention to education,” Sotomayor continued. “It's the value mom taught me, but her lesson … was not lost on me when I became a prosecutor. And it's a lesson that I continue to promote because I so fervently believe it. The success of our communities depends on us improving the quality of our education of our children and of parental participation in ensuring that that happens in our society.”

“We cannot remedy the ills of society in a courtroom,” Sotomayor went on. “We can only apply the law to the facts before us.”

The hearing is plodding towards the end of its first round, in which each of the Judiciary Committee’s 19 members will have had 30 minutes to question the nominee. All of the panel’s seven Republicans have had their turn, so we are finishing up with the more junior of the 12 Democrats.

The first round is expected to end this afternoon, followed by a traditional closed-door session between the committee and Sotomayor to go over things like FBI background reports and financial disclosures.
Sen. Patrick Leahy, D-Vt., the committee’s chairman, says the second round, which could begin today, will allow for up to 20 minutes of questioning by any panel member who wants it.

Posted by Mark Walsh at 12:45 PM | Permalink | No Comments | TrackBacks (0)

The confirmation hearings of Judge Sonia Sotomayor veered into questions of diversity in education again this morning. For the second time, the Supreme Court nominee gave a lesson about the 2003 University of Michigan cases on using race in admissions.

But curiously, neither Sotomayor nor the senator who raised the question today, Benjamin L. Cardin, D-Md., bring up the Supreme Court’s more recent pronouncement on race and diversity in education: the bitter 5-4 decision in the Seattle and Louisville student-assignment cases in which the court sharply curtailed the permissible uses of race in K-12 education.

Sen. Cardin, noting that Sotomayor had fought for diversity issues as a student at Princeton University, said he wanted to “hear the importance from you of having different voices in schools.”

Sotomayor, after acknowledging the value to society of seeing people of diverse backgrounds on the judcicial bench, then again recapped the Supreme Court’s decisions in Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, the court upheld a race-conscious admissions policy at Michigan’s law school because it included individualized consideration of each applicant. But the court struck down a more mechanized race-conscious admissions plan for the university’s main undergraduate school.

And she noted, as she had on Tuesday (see my blog post here), Justice Sandra Day O’Connor’s hope expressed in Grutter that 25 years from then, the use of racial preferences would no longer be necessary in education.

“These situations are always looked at individually,” Sotomayor said.

But this probably would have been a good point to bring up the court’s later decision in Parents Involved in Community Schools v. Seattle School District, an opinion authored by Chief Justice John G. Roberts Jr. The decision was widely viewed as a major reversal of course on race in education, led by Roberts and his fellow new justice, Samuel A. Alito Jr. In opening statements, several Democrats on the Judiciary Committee mentioned or alluded to the Seattle decision as an example of an area of the law where they were hoodwinked by Roberts and Alito.

Meanwhile, Sen. Cardin also asked Sotomayor about a case in which, as Education Week’s Erik Robelen described it, the judge wrote a partial dissent from two fellow judges in a case alleging racial discrimination involving a black student in a Connecticut elementary school.

In Gant v. Wallingford Board of Education, Sotomayor had agreed with her 2nd Circuit panel’s rejection of a claim that the school had acted with “deliberate indifference” to racial hostility the student allegedly encountered at school, but she contended in her dissent that the student’s family had grounds for proceeding with a claim that their son’s midyear demotion from 1st grade to kindergarten was driven by race.

“I consider the treatment this lone black child encountered during his brief time in Cook Hill’s first grade to have been ... unprecedented and contrary to the school’s established policies,” Judge Sotomayor said in the dissent.
Cardin today lauded her for the dissent, saying, “If you ignore race completely, you’re ignoring an important element.”

In response, Sotomayor said: “In that case, there was a disparate treatment element, and I pointed out to the set of facts that showed or presented evidence of that disparate treatment. That's the quote that you were reading from, that this was a sole child who was treated completely different than other children of -- of a different race in the services that he was provided with and in the opportunities he was given to remedy or to receive remedial help.

“That is obviously different, because what you're looking at is the law as it exists and the promise that the law makes to every citizen of equal treatment in that situation,” she added.

One final note about Sen. Cardin’s exchange. Before bringing up the Gant case, Cardin told Sotomayor that he wants a justice “who will continue to move the court forward in protecting … important civil rights.”

He then cited some well-known cases of people who suffered violence because of bias based on sexual orientation or race.

“I [want] a justice who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay,” Cardin said. “I want a justice who will fight for women like a 28-year-old Californian who was gang raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd, who was beaten and dragged by a truck for two miles because he was black. So we need to continue that -- that focus.”

Sotomayor didn’t really have a chance to respond to those specific cases, as Cardin then raised the Gant case.

Posted by Mark Walsh at 11:25 AM | Permalink | No Comments | TrackBacks (0)

Sen. Dianne Feinstein this afternoon asked Sonia Sotomayor about cases in which the Supreme Court has struck down laws because Congress exceeded its powers under the Constitution’s commerce clause, including a 1995 ruling that invalidated the Gun-Free School Zones Act of 1990.

The court held in United States v. Lopez that a federal law barring possession of a firearm near schools exceeded the commerce-clause power because the statute did not regulate commercial activity and did not require that the gun possession have a connection to interstate commerce.

“Do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the commerce clause?” Sen. Feinstein asked Sotomayor.

The nominee said she couldn’t give a broad answer, but if Feinstein had one particular case in mind, she could address the framework the court had used. Feinstein cited Lopez.

Sotomayor then rather artfully described the holding in Lopez without really saying whether she agreed with it.

“The court was examining, as I mentioned, a wide variety of factors,” Sotomayor said. “They included whether the activity that the government was attempting to regulate was economic or non-economic, whether it was an area in which states traditionally regulated, whether the statute at issue had an interstate commerce provision to -- as an element of the crime, and then considered whether there was a substantial effect on commerce.”

She continued: “It looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the confluence of factors that it was looking at to find that … that particular statute was within Congress's powers.”

Feinstein pleaded for greater deference from the Supreme Court for Congress and its laws under the commerce clause power.

“It's just that Congress has to have the ability to legislate,” the senator said. “And in those general areas, it's the commerce clause that enables that legislation.”

Feinstein noted that Congress passed a new version of the law that sought to address the commerce clause concern by including more findings and requiring that prosecutors prove a nexus to interstate commerce for any gun charges brought under the act.

Posted by Mark Walsh at 2:48 PM | Permalink | No Comments | TrackBacks (0)

Sen. Herb Kohl, D-Wis., asked Judge Sonia Sotomayor today whether she agreed with Justice Sandra Day O’Connor’s prediction that race-based affirmative action would no longer be necessary 25 years after the Supreme Court’s 2003 decisions in the University of Michigan admissions cases.

“Do you believe affirmative action is more justified in education than in employment?” Sen. Kohl asked this morning.

“It is firmly my hope, as it was expressed by Justice O'Connor in her decision involving the University of Michigan Law School admissions criteria, that in 25 years, race in our society won't be needed to be considered in any situation,” Sotomayor said. “That's the hope.”

In Grutter v. Bollinger, the Supreme Court upheld the University of Michigan law school’s “narrowly tailored” consideration of race. Writing for the majority, Justice O’Connor said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Sotomayor today noted that “we’ve taken such great strides in our society” towards the goal of eliminating race-conscious government action."

“But there are situations in which there are compelling state interests and the admissions case that Justice O'Connor was looking at, the court recognized that in the education field,” she added.

The nominee went onto note that in the companion to Grutter in 2003, Gratz v. Bollinger, the Supreme Court struck down an undergraduate admissions plan at Michigan that had categorically assigned bonus points to members of certain underrepresented minorities.

In Gratz, Sotomayor said, “the court determined that a more fixed use of race that didn't consider the individual was inappropriate, and it struck down the undergraduate admissions policy. That is what the court has said about the educational use of race in a narrow way.”

Posted by Mark Walsh at 2:05 PM | Permalink | No Comments | TrackBacks (0)

Judge Sonia Sotomayor this morning defended her appeals court panel’s decision in a controversial race case involving employment testing.

The U.S. Supreme Court nominee was asked about the issue by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who told Sotomayor she has been attacked by conservatives as “biased and prejuduiced” for joining a decision that upheld the city of New Haven, Conn.’s action to discard a test for promotions in its fire department after African-American firefighters did not score highly enough to become eligible for promotion.

A group of white and Latino firefighters appealed the decision to the U.S. Supreme Court, which ruled 5-4 last month in Ricci v. DeStefano that New Haven violated Title VII of the Civil Rights Act of 1964 when it discarded the test results.

Today, responding to Sen. Leahy’s fairly friendly questions about the case, Judge Sotomayor said, “The issue in Ricci is what the city did or could do when it was presented a challenge to one of its tests.
This was not a quota case.”

Sotomayor said the city faced a possible “disparate impact” lawsuit from the black firefighters because the disproportionate results of the employment test.

“Given circuit precedent, the panel decided the city’s decision was lawful under existing new law,” Sotomayor said, adding that the Supreme Court’s decision set a new standard under Title VII.

Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, pressed Sotomayor further about the case.

“A lot of people were disappointed that the panel decision was so short,” Sessions says about what was indeed a short, unsigned opinion in the Ricci case by Sotomayor’s panel from the U.S. Court of Appeals for the 2nd Circuit. Also, Sessions says, Sotomayor’s withheld a vote that would have allowed the full 2nd Circuit to reconsider the case.

Sotomayor responded that the panel’s decision relied on a “very thoughtful, very thorough” 78-page opinion by the district court below.

“We were very sympathetic to firefighters who challenged the city’s decision,” Judge Sotomayor said of the three-judge panel, but the test clearly had a disparate impact, and under circuit precedent, the city could discard the test. The Supreme Court’s ruling changed the landscape on that, she acknowledged.

Posted by Mark Walsh at 11:00 AM | Permalink | 1 Comment | TrackBacks (0)

Judge Sonia Sotomayor said today that hard work and education have been the keystones to her success.

“On her own, my mother raised my brother and me,” Sotomayor said as she finally got to deliver her opening statement before the Senate Judiciary Committee on Monday. “She taught us that the key to success in America is a good education. And she set the example, studying alongside my brother and me at our kitchen table so she could become a registered nurse.”

She said she “poured myself” into her studies at Cardinal Spellman High School in the Bronx, at Princeton University, and Yale Law School, while her brother, Juan, went to medical school.

“Our achievements are due to the values that we learned as children, and they have continued to guide my life’s endeavors,” Sotomayor said. “I try to pass on this legacy by serving as a mentor and friend to my many godchildren and to students of all backgrounds.”

Sotomayor went on in her relatively short statement—just over seven minutes—to stress her commitment to “impartial justice” and “fidelity to the law.” She steered clear of answering senators’ opening statements or any of the controversial points raised in advance of the hearing.

She’ll have plenty of chances for that beginning Tuesday. The hearing resumes at 9:30 a.m. tomorrow.

Posted by Mark Walsh at 3:15 PM | Permalink | No Comments | TrackBacks (0)

The recent Supreme Court case involving the strip-search of a middle school student by school officials looking for drugs is getting some attention at Sonia Sotomayor’s confirmation hearing this afternoon.

Sen. Dick Durbin of Illinois, a Judiciary Committee member and the No. 2 Democrat in the Senate, told Sotomayor that at oral argument this spring in the case of Safford Unified School District v. Redding, “several justices asked questions that revealed a stunning lack of empathy” for the student at the center of the case.

One justice even suggested that a strip-search was no more intrusive into students’ privacy interests than when they have to change clothes for gym class, Sen. Durbin noted. He was referring to comments during the argument by Justice Stephen G. Breyer, a Clinton appointee to the high court. ("I'm trying to work out why this is a major thing," Justice Breyer said.) (My blog post here.)

Indeed, at oral argument, the justices did appear to sympathize more with school administrators than with student Savanna Redding. But when the decision came down in June, the court voted 8-1 that the strip-search in the case violated the Fourth Amendment and that such searches were legal only when administrators had specific reason to believe that a student was hiding contraband in his clothes.

Although she didn’t write the majority opinion in the case, Justice Ruth Bader Ginsburg spoke up at oral argument for the privacy interests of teenage girls, as well as afterward in an interview with USA Today in which Ginsburg suggested her male colleagues just didn’t get it.

Sen. Amy Klobuchar, D-Minn., today cited Justice Ginsburg’s public comments surrounding the strip-search case in telling Sotomayor that “being a justice for all of us may mean bringing some real-world, practical experience into the courthouse.”

Sen. Klobuchar also told the nominee that she appreciated the story about how Sotomayor’s mother saved up to buy her children—Sonia and her brother—a set of encyclopedias.

“It reminded me of when my parents bought a set of Encyclopedia Britannica in the '70s that always held a hallowed place in the hallway,” Sen. Klobuchar said. “For me, those encyclopedias were a window on the world and a gateway to learning, as they clearly were for you.”

“From the time you were 9 years old, your mom raise you and your brother on her own,” Klobuchar continued. “She struggled to buy those encyclopedias on her nurse’s salary, but she did it because she believed deeply in the value of education.”

Posted by Mark Walsh at 2:43 PM | Permalink | No Comments | TrackBacks (0)

Several members of the Senate Judiciary Committee have cited education law issues in their opening statements this morning at the confirmation hearing of Judge Sonia Sotomayor to the U.S. Supreme Court.

Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, said he was concerned about judges who push their own views.

“We have seen federal judges force their own political and social agenda on the nation, dictating that the words “under God” be removed from the Pledge of Allegiance and barring students from even silent prayer in schools.”

Sen. Sessions’s written statement even included footnotes. He cited an infamous 2002 ruling by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, which held that a school district violated the First Amendment by leading the Pledge because of the inclusion of the words “under God.” That decision, as Sessions noted in his footnote, was overturned by the Supreme Court, although on procedural grounds.

As for a ruling barring “silent prayer,” Sessions cited the Supreme Court’s 1985 decision in Wallace v. Jaffree, which struck down an Alabama law that authorized schools to have a one-minute daily period of silence “for meditation or silent prayer.”

Meanwhile, Sen. Dianne Feinstein, D-Calif., said that in her years of service on the Judiciary panel, she has found it increasingly difficult to know from a nominee’s answers to committee questions how they will actually “act as a Supreme Court justice.”

Some justices have been much more than “umpires calling balls and strikes,” she said, in reference to an analogy used by Chief Justice John G. Roberts Jr. in his confirmation hearing. She noted, without naming them, that Roberts and Justice Samuel A. Alito Jr. have “disregarded or overturned precedent” in at least eight cases, including “a case involving assignments to attain racial diversity in school assignments.”

She was referring to Parents Involved in Community Schools v. Seattle School District No. 1, a 2007 decision in which the court sharply curtailed the ways schools could consider race in assigning students to schools.

Sen. Herb Kohl, D-Wis., told Judge Sotomayor that he hoped to learn what she thinks about fundamental issues such as “civil rights, privacy, property rights, the separation of church and state, and civil liberties, to name a few.”

“As we continue to strive for equal rights in our schools and workplaces, we debate the tension between admissions policies and hiring practices that acknowledge diversity and those that attempt to be colorblind.”

Sen. Benjamin L. Cardin, D-Md., noted that Supreme Court decisions affect “each and every person in the nation,” and that it took the nation a long time to achieve “equal protection for all races.”

“I attended Liberty School No. 64, a public elementary school in Baltimore City,” Sen. Cardin said. “It was part of a segregated public school system that—under the law—denied every student in Baltimore the opportunity to learn in a classroom that represented the diversity of our community.”

The Supreme Court’s 1954 decision in Brown v. Board of Education, Cardin said, “moved our nation forward by correcting grievous wrongs that were built into the law.”

Posted by Mark Walsh at 12:25 PM | Permalink | No Comments | TrackBacks (0)

The confirmation hearing for Judge Sonia Sotomayor gets under way Monday at 10 a.m. Eastern time. The School Law Blog will be there, and we'll be on the lookout for questions about the Supreme Court nominee's views on education law issues.

As a reminder, Education Week's Erik Robelen reported on Judge Sotomayor's key education rulings here, and I blogged here about some additional cases.

In my experience covering five Supreme Court nominations, questions about education inevitably come up, although often deep into the days of the hearing.

However, one high-profile issue expected to come up early for Judge Sotomayor is her role in the case of Ricci v. DeStefano, which involved the city of New Haven, Conn.'s refusal to certify the employment tests of white and Hispanic applicants for promotion in its fire department because back applicants performed poorly on the exams.

Judge Sotomayor was on a panel of the U.S. Court of Appeals for the 2nd Circuit that upheld the city's action last year. The Supreme Court last month reversed the 2nd Circuit and held that the city's actions discarding the employment tests violated Title VII of the Civil Rights Act of 1964.

I blogged about the implications of that decision for education here.

The Republicans on the Judiciary Committee intend to call former New Haven firefighter Frank Ricci, the lead plaintiff who challenged the city's refusal to certify the tests, as a witness against Sotomayor. (The full witness list is on the committee's Web site.)

Also on the Judiciary Committee's Web site is a starting point for looking at Sotomayor's committee questionnaire and other background materials.

Meanwhile, the SCOTUSBlog Web site has a good collection of reports analyzing Sotomayor's judicial record, including many that touch on education cases that have come before her.

In a profile of Sotomayor in The Washington Post on Sunday, the paper touches on the judge's background at Cardinal Spellman High School in the Bronx. While other girls wore anti-Vietnam war buttons pinned to their school blazers, Sotomayor did not, the Post reports.

Posted by Mark Walsh at 1:15 PM | Permalink | No Comments | TrackBacks (0)

A federal appeals court heard arguments yesterday in a case involving a school district's restrictions on political messages on students' clothing.

The case involves a student who was barred from wearing a T-shirt that said "John Edwards '08" to school in the fall of 2007, according to this Associated Press story. The Waxahachie district says its dress code, which bars all non-school messages, promotes pride and reduces distractions to learning, the AP reports.

The audion of the argument in Palmer v. Waxahachie Independent School District, before a three-judge panel of the U.S.Court of Appeals for the 5th Circuit, in New Orleans, is available from this page.

Posted by Mark Walsh at 2:09 PM | Permalink | 2 Comments | TrackBacks (0)

The U.S. Supreme Court term that just concluded turned out to be quite a busy one for education, with several cases directly involving school districts and others with implications for districts as employers, for school administrators, and for teachers’ unions. Here are the Top Ten:

Fourth Amendment - Student Rights
Safford Independent School District v. Redding
The justices ruled 8-1 that the strip-search of a middle school student by school officials looking for prescription-strength ibuprofen violated the Fourth Amendment. The majority said such strip-searches were justified only when school officials had "specific suspicions" that a student was hiding contraband in his or her underwear or other "intimate parts." The court ruled 7-2, however, that the officials involved in the search of Arizona student Savana Redding deserved qualified immunity because the case law on strip-searches was unclear at the time.

Individuals with Disabilities Education Act
Forest Grove School District. v. T.A.
The justices ruled 6-3 that the main federal special education law authorizes reimbursement for private school tuition, even when a child with a disability has never received special education services from a public school district. The majority said that 1997 amendments to the IDEA intended to rein in the costs of private school placements did not remove the power of hearing officers and federal judges to order such reimbursements under the proper circumstances.

Title IX/Section 1983
Fitzgerald v. Barnstable School Committee
The court ruled unanimously that Title IX of the Education Amendments of 1972 does not bar victims of sex discrimination in schools from pursuing claims under an older federal civil rights law, known as Section 1983. The court said the two statutes sometimes cover different legal targets or offer different remedies, and the passage of Title IX was not meant to foreclose claims under the older civil rights law.

Equal Educational Opportunities Act of 1974
Horne v. Flores
The court ruled 5-4 that two lower courts did not properly consider changed circumstances in the delivery of English-language learning both in the state of Arizona and in the Nogales Unified School District when they found a violation of the federal Equal Educational Opportunities Act and ordered increased spending on the state’s ELL program. The majority ordered the lower courts to consider at least four factors on remand: a change in methodology at the state level for English-language learners; the role of the federal No Child Left Behind Act on the state’s program; the record of structural and management improvements in the Nogales district; and the role of an overall education funding increase in Nogales.

Title VII of the Civil Rights Act of 1964
Ricci v. DeStefano
The court ruled 5-4 that before employers may take a race-conscious action for the asserted purpose of avoiding an unintentional disparate racial impact, it must have a “strong basis in evidence” to believe it will face liability in a disparate-impact suit under Title VII. The majority held that the city of New Haven, Conn., had to abide by the results of a promotional exam for firefighters in which no black candidates scored high enough to qualify for promotion.

Crawford v. Metropolitan Government of Nashville
In a case involving a school district central office, the justices held unanimously that Title VII protects workers who face retaliation for participating in an internal investigation. In an opinion signed by seven members of the court, Justice David H. Souter said Title VII’s anti-retaliation provision covers a school system payroll specialist who complained about crude sexual conduct by her boss during an internal investigation launched on behalf of another employee. The payroll specialist, Vicky Crawford, was dismissed from her job, which she claimed was retaliation.

Public Employee Unions
Ysursa v. Pocatello Education Association
The justices ruled 6-3 that a state's restriction on school district and other local government employee payroll deductions for politics does not violate the free speech rights of unions. The case involved Idaho’s Voluntary Contributions Act, which prohibits school districts and other local governments from using their payroll systems to let workers voluntarily deduct amounts from their paychecks for political causes, such as for the unions’ political action funds.

Qualified Immunity for Public Officials
Pearson v. Callahan
The justices unanimously used a case challenging a police search to effectively overrule one of the court's precedents and make it easier for judges to grant educators, the police, and other government officials immunity from lawsuits challenging their official actions. The justices eased the requirements of a 2001 decision, Saucier v. Katz, that had required courts weighing qualified immunity claims against public officials to first decide whether a constitutional violation had even occurred.

Age Discrimination in Employment Act of 1967
Gross v. FBL Financial Services Inc.
The court ruled 5-4 that a plaintiff bringing a disparate-treatment claim under the age-discrimination law must generally prove that age was the central motivating factor for an adverse employment action. It said the statute did not permit the kind of burden-shifting exercise the court has approved for the main federal job-discrimination law--Title VII of the Civil Rights Act of 1964.

Voting Rights Act of 1965
Northwest Austin Municipal Utility District No. 1 v. Holder
The justices ruled unanimously that all local governments, including school districts, in states and jurisdictions covered by Section 5 of the Voting Rights Act, which requires federal approval of any changes in voting procedures, have the right to seek “bailout,” or exemption, from the requirements of the law. The ruling came in a case in which the justices suggested they had strong constitutional concerns about the 2006 renewal of the voting-rights law, but they stopped short of overturning it.

Posted by Mark Walsh at 11:25 AM | Permalink | 2 Comments | TrackBacks (0)