November 2010 Archives

In a decision with potential implications for school districts, the U.S. Supreme Court on Tuesday strengthened protections against municipal liability in federal civil rights lawsuits.

The justices ruled 8-0 in Los Angeles County v. Humphries (Case No. 09-350) that a 1978 high court decision about municipal liability for civil rights violations applies even when a plaintiff is seeking only an injunction or a declaratory judgment, in contrast to monetary damages.

The decision comes in the case of a California teacher and her husband who were wrongfully accused of child abuse and then found that once they were exonerated, they had no way to remove their names from a state child-abuse registry. They sued Los Angeles County and its sheriff, as well as the state, alleging a violation of their 14th Amendment right to due process of law.

Central to their case is the older Supreme Court decision, Monell v. New York City Department of Social Services, which held that cities, counties, and school districts could only be liable when a civil rights plaintiff could show that a violation stemmed from a muncipal policy or custom, as opposed to the government agency simply being the employer of someone who violated the plaintiff's rights.

The Monell case involved monetary damages, and the issue in the case decided on Tuesday was whether the policy or custom requirement also extended to when plaintiffs sought only prospective relief, such as an injunction or other court order.

Writing for every member of the court except for Justice Elena Kagan, who was recused, Justice Stephen G. Breyer said that the Monell requirement did apply to the broader category of civil rights cases.

The Supreme Court that decided Monell "thought that Congress intended potential [civil-rights] liability where a municipality's own violations were at issue but not where only the violations of others were at issue," Justice Breyer said. "The 'policy or custom' requirement rests upon that distinction and embodies it in law. To find the requirement inapplicable where prospective relief is at issue would undermine Monell's logic."

The case decided Tuesday stems from what a lower court called a "parents' nightmare," in which Craig and Wendy Humphries found that there was no procedure for removing their names from the state child-abuse index, despite a court declaration that they were "factually innocent" of the abuse charges.

Among the difficulties the couple faced in suing, court papers said, was that Ms. Humphries' inclusion on the child-abuse index threatened her ability to remain licensed as a special education teacher.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held last year that the county sheriff's department was potentially liable under the Monell decision for not adopting its own procedure for the falsely accused to remove their names from the child-abuse index.

Los Angeles County appealed the 9th Circuit ruling as to its municipal liability, and Tuesday's Supreme Court's decision is a victory for the county.

The high court's ruling appears to leave undisturbed part of the 9th Circuit's decision that required the state of California to develop a procedure for notifying people who were being added to the state child-abuse registry and to provide some form of hearing for those who seek to challenge their inclusion on it.

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The U.S. Supreme Court on Monday declined to hear the appeal of a Michigan special education teacher who claimed she was fired for complaining that the size of her teaching caseload kept her from providing the proper amount of instruction to each of her students.

The Traverse City Area Public Schools in Michigan declined to renew the probationary teaching contract of Susan M. Fox in 2007 because of what the district described as her deficiencies. Fox claimed that the adverse job action resulted from her complaints to supervisors that her caseload of special needs students exceeded what was allowed by law.

The teacher says in court papers that in addition to serving 21 special education students, she was asked to teach an elementary school reading program that brought her total number of students to 34.

Fox sued over her nonrenewal on First Amendment free-speech grounds, but both a federal district court and a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled against her in May. The 6th Circuit said Fox's complaints were covered by the Supreme Court's 2006 decision in Garcetti v. Ceballos, which held that on-the-job speech by public employees is not protected by the First Amendment.

Fox's Supreme Court appeal argued that her case presented a good opportunity for the justices to clarify whether Garcetti should apply to the on-the-job speech of lower-level public employees such as her.

"The effect of Garcetti is to put conscientious public employees who observe wrongdoing in a no-win position," the brief said.

The school district filed a brief saying that the 6th Circuit had made a "straightforward application" of Garcetti and had properly ruled against Fox.

The Supreme Court declined without comment to hear the teacher's appeal in Fox v. Traverse Area City Public Schools (Case No. 10-229).

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A high school gang was an "organization" within the meaning of New York state's anti-hazing law, and a prospective member of the gang may not consent to being hazed, a state appellate court has ruled.

A four-judge panel of the Appellate Division of the New York State Supreme Court, the state's mid-level appeals court, upheld a juvenile delinquency finding for a student who participated in the hazing of a young man who sought to join the "Lost Boys," a gang at their high school in the New York City borough of Queens.

According to court papers, to join the gang, the unidentified teenager had to submit to a "jumping in," an activity in which gang members surrounded him and repeatedly struck him with closed fists, or kicked him in the head and ribs when he fell. The juvenile charged in this case, identified as Khalil H., was the one who recruited the victim and videotaped his beating.

A Queens County family court ruled that Khalil H. committed acts that would constitute the crimes of conspiracy and attempted hazing, and he was placed in state custody for one year. An appeal on behalf of the juvenile argued that the Lost Boys was not an organization subject to New York state's anti-hazing law.

In its Nov. 9 decision in the Matter of Khalil H., the state appellate court disagreed, saying that the Lost Boys was organized for mutual protection.

"Members met in the park to carry out the [victim's] planned initiation ceremony, held meetings, and wore flags with black and white stars, as well as stringed black and white beads, to signify their membership in the Lost Boys," the court said. "Thus, we find that the Lost Boys gang is the type of 'organization' the Legislature contemplated when it enacted [the anti-hazing statutes.]"

The court also rejected Khalil H.'s argument that the victim willingly subjected himself to the initiation ritual and thus no crime was committed.

"Often, those who are victims of hazing are, to some degree, willing to accept humiliation and physical abuse from others in order to gain social acceptance," the court said, citing court rulings in other states against allowing victim consent to be a defense to hazing. "Students willingly subject themselves to these acts to be accepted. Many times, they have no idea of how bad the hazing will be until they are put in the situation. By then, it is too late and they accept the consequences rather than lose face by backing out."

The decision also includes an interesting history of New York state's anti-hazing laws and a description of an 1894 hazing incident at Cornell University that resulted in student injuries and the death of a cook.

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Washington state's highest court ruled on Thursday that sex between a high school teacher and an 18-year-old student meets a state law's definition of educator sexual misconduct with a minor.

The Washington Supreme Court ruled 5-4 that despite the use of the term "minor," the statute in effect at the time of a teacher's alleged actions unambiguously covered sexual misconduct with students up to age 21.

"We hold that the former statute's plain language unambiguously defines minor as a registered student and thus includes students up to the age of 21," said the majority opinion by Justice Debra L. Stephens in State of Washington v. Hirschfelder.

The Nov. 18 ruling came in the case of Matthew Hirschfelder, who was a 33-year-old high school choir teacher when he was charged with sexual misconduct with an 18-year-old female student shortly before the student's graduation. Hirschfelder has denied having a sexual relationship with the student. A trial judge denied his motion to dismiss the charges on the theory that the statute was intended to cover sexual misconduct only with students under the age of 18, but the judge authorized an immediate appeal of that issue before trial.

An intermediate appellate court ruled for the defendant, but that decision was overturned by the state supreme court's ruling. The state high court sent Hirschfelder's case back to the trial court for further proceedings.

Justice Stephens discussed in detail the meanings of various state statutes before concluding that the sexual misconduct law was meant to cover sex between K-12 school personnel and any student age 16 to 21. (Sex abuse of children younger than 16 is covered by separate statutes.)

"That the legislature saw fit to criminalize sex between school employees and high school students—even those who reach the age of majority while registered as students—is a policy choice that recognizes the special position of trust and authority teachers hold over their students."

The state legislature has since amended the law to clarify that it covers any sex between a school employee and an enrolled student up to age 21.

In a dissent, Justice Charles W. Johnson said the majority misapplied the state statute.

"We should not use the statute to criminalize conduct between two consenting adults where the legislature has expressly provided otherwise," Justice Johnson said.

(Hat Tip to How Appealing for this case.)

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A federal appeals court today upheld a Tennessee school district's prohibition of any display of a Confederate flag by students, the latest in a long line of such rulings that have backed administrators seeking to prevent racial conflict over the symbol.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled unanimously in favor of the Anderson County school system and its bar against students displaying the Confederate battle flag or other representations.

"Uncontested evidence in this case clearly indicates racial violence, threats, and tension in Anderson County schools," U.S. Circuit Judge Eric L. Clay said in Defoe v. Spiva. The appeals court upheld summary judgment for the school district in a free-speech challenge brought by a student and his father.

The court said the district has never completely escaped racial tensions since its schools were desegregated in 1956. Among recent incidents, when a black student displaced by Hurricane Katrina enrolled at predominantly white Anderson County High School in 2005, some students hung a large Confederate battle flag in a hallway, according to court papers.

And when Anderson County High's basketball team played another school which had a biracial player on its team, some students threw Oreo cookies onto the floor during warmups, the court said.

Judge Clay said the court's ruling was in keeping with a 2008 6th Circuit decision, in Barr v. LaFon, upholding restrictions on Confederate flag displays in the Blount County, Tenn., school district. I blogged about that case here.

He also cited rulings backing school restrictions on Confederate flag dispays by the U.S. Courts of Appeals for the 5th, 8th, and 10th circuits.

In a concurrence, Judge John M. Rogers said the Confederate battle flag may convey a noble message to some students, "for instance to signify honor for one's ancestors who fought bravely with their state compatriots for independence from the industrial North."

"But the Confederate flag on a T-shirt is doubtless perceived by many, if not most, student viewers in today's high schools in the United States as a statement of racial hostility—comparable to a slogan that says 'Blacks should be slaves' or 'Blacks are inferior.' "

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A federal appeals court has upheld a New Hampshire law that requires schools to set aside time daily for students to voluntarily recite the Pledge of Allegiance.

The ruling is the second by a federal appeals court this year sustaining teacher-led recitations amid challenges over the inclusion of the words "under God" in the Pledge.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled on Friday that the New Hampshire requirement does not violate the First Amendment's prohibition against government establishment of religion or other provisions of the U.S. Constitution.

"The New Hampshire School Patriot Act's primary effect is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation," said the unanimous opinion, by Chief Judge Sandra L. Lynch, in Freedom From Religion Foundation v. Hanover School District.

The challenge was brought by plaintiffs identified in court papers as the Doe family. The mother and father describe themselves as atheist and agnostic, respectively, with three children in the Hanover, N.H., school district who also question the existence of God. (The school district is a joint one with Dresden, Vt.)

Under a New Hampshire law passed in the wake of the Sept. 11, 2001, terrorist attacks, schools must set aside time for teachers to lead the pledge, but students are not required to recite it. (That would be in keeping with the U.S. Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette.)

The Doe family's suit alleged that the statute violates the establishment clause, as well as the First Amendment's guarantee of free exercise of religion. The family is being represented by California lawyer Michael Newdow, an atheist who has carried out his own longtime campaign against the inclusion of "under God" in the pledge and school-led recitations of the pledge.

A federal district court upheld the New Hampshire law in 2009, ruling that it has the permissible secular effect of "teaching our country's history to the elementary and secondary pupils of this state" and that it does not have the effect of coercing children to support or participate in religion.

The Freedom From Religion Foundation appealed the ruling to the 1st Circuit, and it enlisted Newdow to argue its case.

The statute was defended not only by the state of New Hampshire, but also by intervening students and parents, the Knights of Columbus, and the U.S. Department of Justice, which sought to defend acts of Congress that added "under God" to the pledge in 1954 and reaffirmed that version of the pledge in 2002.

In its Nov. 12 opinion, the 1st Circuit said the New Hampshire law passed muster under the Supreme Court's various tests for considering possible establishment clause violations.

"[The foundation's] premise is that children who choose not to recite the Pledge become outsiders based on their beliefs about religion," Chief Judge Lynch said. "That premise is flawed. Under the New Hampshire Act, both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary."

The court also turned aside arguments that the law coerces pupils into participating in the pledge because the students are young and impressionable and they are led by teachers whom they respect as authorities.

"Recitation of the Pledge is not a formal religious exercise" like the clergy-led graduation prayer struck down by the Supreme Court in the 1992 case of Lee v. Weisman, Lynch said.

The ruling in the New Hampshire case is the second this year by a federal appeals court upholding classroom Pledge observances.

In March, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled against Newdow and a group of California atheist parents who challenged school-led recitations of the pledge as an unconstitutional establishment of religion. The court said the pledge was predominantly a patriotic exercise. Newdow is seeking review by a larger panel of 9th Circuit judges in the case involving the Rio Linda Independent School District in northern California.

Newdow also was behind an earlier case challenging the pledge in his own daughter's school. The U.S. Supreme Court weighed that case, Elk Grove Unified School District v. Newdow, in 2004 but disposed of it on procedural grounds.

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In a case with implications for Alabama public schools, the U.S. Supreme Court on Wednesday considered whether a railroad could challenge a state sales and use tax on diesel fuel that rail carriers must pay, while motor and water carriers are exempt.

Alabama education groups filed a friend-of-the-court brief on the side of the state, arguing that the tax on railroads is critical because it helps fund the state's Education Trust Fund.

"The amount of [railroad tax] refund claims that could be resurrected by this case is potentially devastating to Alabama's public schools," says the brief filed by the Alabama Education Association, the Alabama Association of School Boards, and other groups.

In CSX Transportation Inc. v. Alabama Department of Revenue (Case No. 09-520), the Jacksonville, Fla.-based railroad is seeking to challenge the state's exemptions for motor and water carriers under a 1976 federal law called the Railroad Revitalization and Regulatory Reform Act, or 4-R Act.

Congress found that railroads were often subject to disparate state and local tax treatment because they were non-voting, non-resident businesses which couldn't easily pick up and leave a state. The law prohibited tax discrimination against railroads, particularly on property taxes, but also included a catch-all provision that bars states from "imposing another tax that discriminates against a rail carrier."

"You can't have this kind of a tax on us and not tax the motor carriers the same way," Carter G. Phillips, the lawyer representing CSX, told the high court. The specific question before the court is whether the railroad can challenge the exemptions under the 4-R Act.

CSX paid some $3 million to $4 million is sales and use tax on diesel fuel to Alabama before winning an injunction in 2008 that has barred the taxes. The school groups estimate that all railroads operating in the state pay about $20 million per year in such taxes, but several are seeking to invalidate the tax and win refunds.

The education groups say that a ruling for the railroad could end funding for 250 teachers or 1,400 support workers.

Corey L. Maze, Alabama's solicitor general, told the justices that the federal law's reference to "another law that discriminates" means "a tax that singles out railroads as compared to the general mass of taxpayers," which is not what the state is doing.

"We know that Congress didn't intend to make railroads the most favored taxpayers in any way," Maze said. "The intent was simply to put them on equal footing."

"Now one of the problems I see that the court has is this fear that the states are going to take a generally applicable tax and then all of a sudden start exempting everyone" except railroads, Maze said. "It's not going to happen for a very simple reason. Our sales and use tax funds our schools."

"At the moment we start exempting every single business, our schools don't have any money," Maze continued. "We are not going to pick on the railroads by exempting, exempting, exempting, exempting. The railroads, quite honestly, can't fund our schools. We are having a hard enough time funding them as it is, and we are not going to just target railroads by exemption."

Nineteen states filed a joint friend-of-the-court brief on Alabama's side, saying that a ruling for CSX could lead many other rail carriers to challenge sales and use taxes wherever some taxpayers benefit from exemptions.

"This court should require Congress to speak with considerably more clarity and precision if it intends to interfere with the states' fundamental power to impose taxes," the states' brief said.

A decision in the case is expected by next June.

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A full federal appeals court has declined to rehear a case over a lawsuit challenging a Hawaii private school's policy of serving only native Hawaiian students. The action prompted harsh dissents from judges who said the policy's challengers should be able to proceed in court anonymously.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, on Monday refused to disturb a panel decision that said the four challengers to the restrictive admissions policy of the Kamehameha Schools could not remain anonymous. Lawyers for the challenger have said the students faced threats for suing over the admission policy.

The panel's March decision is here, and I blogged about it here.

The Kamehameha Schools is a multi-campus private school whose policy of admitting only native Hawaiians has faced numerous lawsuits. Native Hawaiians are defined as those having any ancestry that can be traced to the indigenous population before the first landfall of Westerners in 1778.

Both Chief Judge Alex Kozinski and Judge Stephen R. Reinhardt dissented from the full 9th Circuit's refusal to rehear the case.

"It is entirely unacceptable to ask minors to test the seriousness of the 'undoubtedly severe' threats that have been made against them in order to gain access to the federal legal system," Judge Reinhardt said.

Chief Judge Kozinski cited some of the Internet threats directed at the four non-native Hawaiian challengers, such as "4 kids ... will need 10 bodyguards" and "Sacrifice them!"

"If threats like that were made against me or my family, I'd be worried," Kozinski said. "No litigant should fear for his safety, or that of his family, as a condition of seeking
justice."

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An Arizona program of tax credits for contributions to organizations that provide private school tuition scholarships, including to students attending religious schools, was defended in the U.S. Supreme Court today as a neutral program that does not offend the U.S. Constitution.

"Not a cent of [challengers'] tax money goes to fund religion" under the Arizona program, said acting U.S. Solicitor General Neal K. Katyal.

The state of Arizona made similar arguments that the 13-year-old program does not violate the First Amendment's prohibition against government establishment of religion.

"Arizona's tuition tax credit does not violate the establishment clause because it is a neutral law that results in scholarship programs of private choice," said Paula S. Bickett of the state attorney general's office.

But Paul Bender, a Phoenix lawyer representing Arizona taxpayers who have challenged the program on establishment-clause grounds, said, "Our claim is that state money is being given to the beneficiaries of a state spending program on the basis of religion."

The argument in Arizona Christian School Tuition Organization v. Winn (Case no. 09-987) was a lively hour in which the justices debated taxpayer standing, the state's mechanism for aiding its private schools, and whether the money withheld from a state under a tax credit or a deduction was the state's money or not.

Under Arizona's plan, taxpayers can receive a dollar-for-dollar credit of up to $500 (or $1,000 for married couples) on their state income-tax returns for donations to "school tuition organizations." The STOs must spend at least 90 percent of their annual revenues on scholarships or tuition grants. The organizations may not limit their grants to a single school, but they may limit them to religious schools, as several of the STOs do.

Last year, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that a majority of the Arizona scholarships go to students attending religious schools, and that some of the STOs restrict their scholarships to that purpose. The appeals court allowed the challenge to the tax-credit program to go forward.

In the Supreme Court on Wednesday, several justices saw no problem with the fact that some STO's limit their scholarship aid to religious schools. Justice Antonin Scalia said the decision to contribute to such a religiously affiliated STO was a private decision by the taxpayer, not raising the specter of religious discrimination by the government.

"It's not even discrimination between religion and nonreligion," Scalia told Bender. "It doesn't favor religion at all."

Justice Samuel A. Alito Jr. observed that "this is a very modest tax credit."

The Supreme Court in the 1983 case of Mueller v. Allen upheld a Minnesota tax deduction for money spent by parents on their own children, even when 97 percent of the tuition funds were going to religious schools. In Zelman v. Simmons-Harris, in 2002, the justices upheld an Ohio program providing vouchers for poor children in Cleveland to attend private schools, including religious schools.

Justice Elena Kagan, weighing her first education case as a member of the high court, told Bickett she found it "puzzling" that Arizona adopted such a complex tax-credit program instead of the straightforward tuition voucher of the type the court upheld in Zelman.

"This is so much more complicated and unusual," Kagan said of the tax-credit program.

Bickett replied that the program encourages contributions for tuition not just from parents, who cannot directly aid their own children under the program, but also from other taxpapers. Left unsaid was that Arizona adopted its program in 1997, when the federal constitutionality of religious school vouchers was still an unsettled question.

Justice Sonia Sotomayor told Katyal that it appeared that if the challengers can sustain their claim, "it would be taxpayer dollars paying for religion."

Justice Anthony M. Kennedy, possibly the court's critical center vote, appeared troubled that the STO's were so entwined with the government that their decisions on where to spend scholarship dollars amounted to "state action."

"The state has all sorts of rules about what an STO has to be," Kennedy told Pickett. "The state provides the mechanism through the credit for the funding."

Bender sought to stress that his view that the Arizona program was not one of private charity, but in essence a government spending program that aids the coffers of religious schools.

"The money in this case is not a charitable contribution," he said.

In an unusual move, Katyal, the chief courtroom lawyer of President Obama's administration, took the lead at oral argument in defending the state program. And a chief argument of Katyal's is that the challengers lack standing as taxpayers to challenge the program under the establishment clause.

"There is no taxpayer standing in this case," Katyal said.

In a 1968 decision, Flast v. Cohen, the Supreme Court created an exception to the general rule that barred challenges to government programs based on taxpayer standing alone. The court allowed taxpayers to challenge a program of direct grants to religious organizations. In subsequent decisions, most recently in the 2007 case of Hein v. Freedom From Religion Foundation, the court has made it more difficult for taxpayers to bring such challenges.

Bender argues that the challenge by his Arizona taxpayers fits well within Flast because the program amounts to direct aid to religion.

While Katyal was pressed by some of the court's more liberal members (who tend to favor a broad view of standing) on his argument against standing, the court's conservatives did not question Bender about standing, instead focusing on the constitutionality of Arizona's program

The justices should decide the case by the end of their term in June.

The briefs in the case are here.

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It was "Mortal Kombat" at the U.S. Supreme Court on Tuesday between the state of California, which is defending a law that restricts the sale of violent video games to minors, and game producers and sellers, who say the law violates the First Amendment.

California seeks to regulate games with a "deviant level of violence ... that can be no less harmful to minors" than the type of sexually explicit material that the court has said may be kept from minors, said Zackery P. Morazzini, a state deputy attorney general defending the law at oral argument.

Paul M. Smith, a Washington lawyer arguing on behalf of the video-game makers and retailers, said California has "not shown any problem, let alone a compelling problem, requiring regulation here in a world where parents are fully empowered already to make these calls" on whether their children should have access to violent games.

The two advocates faced a barrage of questions from the justices in Schwarzenegger v. Entertainment Merchants Association (Case No. 08-1448). Under California's 2005 law, never enforced, violent games are defined as those that include "killing, maiming, dismembering, or sexually assaulting an image of a human being," if the game lacks "serious literary, artistic, political, or scientific value for minors."

The law bars retail outlets from selling or renting such games to anyone under 18. Parents would not be barred from buying the games for their children.

Justice Antonin Scalia asked Morazzini what other media violence might be open to regulation under the state's theory about "deviant violence."

"Some of the Grimm's Fairy Tales are quite grim, to tell you the truth," Scalia said. "Are you going to ban them, too?

Morazzini said no, that the difference between violence in books, movies, and music, on the one hand, and video games on the other is the interactive nature of the games, "where the young person [playing the game] is the aggressor."

"What's next after [regulating] violence" in media, Scalia asked, images of "smoking? drinking?"

Five justices expressed at least some doubts about the constitutionality of the California measure.

"You are asking us to go into an entirely new area [of speech regulation] where there is no consensus," Justice Anthony M. Kennedy told Morazzini.

"Could you get rid of rap music?" Justice Sonia Sotomayor wanted to know, alluding to violent lyrics in that genre. Justices Ruth Bader Ginsburg and Elena Kagan also expressed concerns.

However, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel A. Alito, Jr., appeared sympathetic to California's efforts. (Justice Clarence Thomas didn't speak.)

The difference between violence in books and movies and that in video games "may be that in these video games the child is not sitting there passively watching something," Roberts told Smith. "The child is doing the killing. The child is doing the maiming, And I suppose that might be understood to have a different impact on the child's moral development."

Breyer said he examined the social science data cited by the California legislature and found that, while there is conflicting evidence and differing interpretations, it wasn't unreasonable for lawmakers to conclude that a problem existed with the violent effects of games.

"Why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so," to conclude that state has the right to tell that parent to "go buy it yourself," Breyer said.

Alito, alluding to games in which body parts are put through a meat grinder, said, "We have a new medium that could not possibly have been imagined when the First Amendment was ratified."

Throughout the argument, the justices confronted a technology and games with which they did not seem to have much personal experience. Justice Kagan said that probably half the court's law clerks spent their adolescence playing "Mortal Kombat," a popular and gory game that Kagan called "iconic." California does not say which games would be regulated by the law, so Kagan asked Morazzini whether the game "Mortal Kombat" would be covered.

"I believe it would be a candidate," he replied.The state has cited another violent game--Postal II"--as one example of a game that meets the law's definition.

Meanwhile, Kagan asked Smith whether all video games constitute speech, including the simple 1970's game "Pong."

"The games we're talking about have narratives and plot," Smith said, just like books and movies.

Earlier, Smith said video games were the latest new medium to attract scrutiny from lawmakers.

"We have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals," Smith said, citing 19th Century crime novels and 1950s comic books.

"There were hearings across the street in the 1950s where social scientists came in and intoned to the Senate that half the juvenile delinquency in this country was being caused by reading comic books," Smith said.

Morazzini stressed that "California's law really is not an ordinance that is directed to a plot of a game."

"It's expressly directed to games with essentially no plot, no artistic value," he said.

The justices will likely rule in the case by June.

Briefs in the case are available here.

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The U.S. Supreme Court agreed today to consider whether a juvenile burglary suspect who was interrogated at school by the police should have been given a Miranda warning about his rights.

The justices accepted an appeal on behalf of a North Carolina boy identified as J.D.B., who was 13-year-old special education student in 2005 when the police showed up at his school to question him about a string of neighborhood burglaries. The police had learned that the boy was in possession of a digital camera that had been reported stolen.

The boy was escorted to a school conference room, where he was interrogated by a Chapel Hill, N.C., juvenile crimes investigator in the presence of the school resource officer, an assistant principal, and a school administrative intern. J.D.B.'s parents were not contacted, and he was not given any warnings about his rights under the 1966 high court decision in Miranda v. Arizona, such as the right to remain silent or to have access to a lawyer.

After being confronted with evidence about the camera, and with the assistant principal urging him to "do the right thing because the truth always comes out in the end," J.D.B. confessed to the burglaries and wrote a statement describing the crimes. The police then obtained a warrant and recovered stolen items at J.D.B.'s home and elsewhere.

Lawyers for the boy sought to suppress his confession in a juvenile-delinquency proceeding charging him with two counts each of breaking and entering and larceny, but they lost in lower courts and before the North Carolina Supreme Court.

The state's highest court rejected the boy's claim that he was in custody during the school interrogation and should have been given a Miranda warning. In a 4-3 decision in December 2009, the court said it could not consider the boy's age or special education status in determining whether he was in custody, and because he was not in custody, he was not entitled to Miranda warnings.

"This court adheres to the view that the custody inquiry states an objective rule designed to give clear guidance to the police, while consideration of a suspect's
individual characteristics—including his age—could be viewed as creating a subjective inquiry," the North Carolina high court said in its opinion.

One of the dissenting justices said the police took advantage of the middle school's "restrictive environment and its psychological effect by choosing to interrogate J.D.B. there."

"It is troubling that in the instant case a public middle school, which should be an environment where children feel safe and protected, became a place where a law enforcement investigator claimed a tactical advantage over a juvenile," said the dissent.

The youth filed a pauper's appeal in J.D.B. v. State of North Carolina (Case No. 09-11121). His public defenders argued that the U.S. Supreme Court has never squarely decided whether a juvenile's age may be considered by courts in making a Miranda custody determination.

"Ignoring a juvenile's age in making the custody determination undermines Miranda's goal of protecting individuals from police coercion," the appeal on J.D.B.'s behalf says. "This is especially true when a juvenile is interrogated at school."

The case granted today is the seond of the term involving law enforcement conduct at schools. In October, the high court granted review in Camreta v. Greene (No. 09-1454), which will consider whether child-abuse investigators violate the Fourth Amendment rights of students by interviewing them at school without a warrant or parental consent about suspected child abuse.

The court will hear arguments in the North Carolina case early next year, with a decision likely by late June.

Separately on Monday, the court declined to hear the appeal of Georgia parents whose 13-year-old son committed suicide while he was in the "seclusion room" of a regional special education facility. The parents, Donald and Tina King, sued the Pioneer Regional Educational Service Agency, alleging that the agency violated their son Jonathan's civil rights by failing to protect him from taking his own life.

The parents lost in Georgia state courts, and the Supreme Court declined without comment to hear their appeal in King v. Pioneer Regional Educational Service Agency. (No. 10-108).

Posted by Mark Walsh at 1:27 PM | Permalink | Leave a comment | Recommend

A federal appeals court has ruled that a New Jersey moving company cannot recover more than $800,000 from the Philadelphia school district for alleged cost overruns on a moving project.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, overturned a lower court and said the school district deserved summary judgment in the suit by Wayne Moving and Storage of New Jersey Inc.

The company was the main subcontractor on a $1.4 million contract to help the district consolidate five administrative offices. (A professional relocation firm was the main contractor.) Wayne Moving was paid $840,000 under the contract, but it submitted invoices for an additional $834,000 for extra work stemming from delays, inoperable elevators at some of the district's facilities, and other difficulties. A district administrator, Frank Seifert, allegedly told the main contractor at one point not to worry about cost overruns as long as they were documented.

The School Reform Commission, the district's governing body, refused to pay anything beyond the original $1.4 million contract. Wayne Moving sued the district for "unjust enrichment." A federal district court granted summary judgment to the moving company in 2008.

In its Oct. 28 decision in Wayne Moving & Storage of New Jersey Inc. v. The School District of Philadelphia, the 3rd Circuit held that the Pennsylvania school code bars the moving company from recovering for unjust enrichment.

The court said the administrator who told the contractor to document additional expenses appeared to be under the impression that the total would still be within the original $1.4 million contract.

"Wayne Moving should have known that Siefert did not have the power to approve expenditures beyond those approved by the Board," the court said. "Wayne Moving [also] should have been aware that private companies that do business with the School District do so at their own peril and have an affirmative responsibility to inquire into the powers of the School District and its agents to enter into any contracts."

Those appear to be lessons the moving company learned the hard way.

Posted by Mark Walsh at 11:54 AM | Permalink | Leave a comment | Recommend