January 2012 Archives

A federal appeals court has revived the lawsuit of a Michigan graduate student who was expelled from her program in school counseling in a dispute over her refusal to treat gay clients.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled unanimously Jan. 27 that the student's case should go before a jury because her university may have discriminated against her based on hostility towards her speech and Christian faith.

The case involves Julea Ward, who had taught English and TV broadcasting at a suburban Detroit high school for 10 years when she decided to become a school counselor in 2006. She enrolled at master's degree in counseling program at Eastern Michigan University.

Ward soon clashed with her professors over her belief that her Christian faith would prevent her from affirming or validating the homosexual behavior of her clients, according to court papers. Her professors reinforced the view that as a counselor, she would be required to support her clients' sexual orientation.

When, in 2009, it came time for one-on-one counseling practicum sessions with real clients, Ward learned that one such client was seeking counseling on a same-sex relationship. Ward asked that the client be reassigned to another counseling student.

Ward's decision came under review at Eastern Michigan, with some faculty members telling her she had violated the ethics code of the American Counseling Association by imposing values that were inconsistent with counseling goals and discriminating on the basis of sexual orientation. She was expelled from the counseling program.

Ward sued on claims that the expulsion violated her First Amendment rights of free speech and free exercise of religion. A federal district court issued summary judgment to the university and various individual defendants, holding that it had enforced a neutral and generally applicable curricular rule.

In its decision in Ward v. Polite, the 6th Circuit court panel threw out the summary judgment and said Ward's free-speech claim deserved to go before a jury.

"Although the university submits it dismissed Ward from the program because her request for a referral violated the ACA code of ethics, a reasonable jury could find
otherwise—that the code of ethics contains no such bar and that the university deployed it as a pretext for punishing Ward's religious views and speech," Judge Jeffrey S. Sutton wrote for the panel.

"What exactly did Ward do wrong in making the referral request?" Sutton added. "If one thing is clear after three years of classes, it is that Ward is acutely aware of her own values. The point of the referral request was to avoid imposing her values on gay and
lesbian clients."

Sutton said counseling textbooks and even some experts who testified for the university seemed to accept values-based referrals. And the university's argument that it had a blanket rule against referrals for student practicum sessions was something a reasonable jury could find was an "after-the-fact invention," Sutton said.

"A reasonable jury could find that the university dismissed Ward from its counseling program because of her faith-based speech, not because of any legitimate pedagogical objective," Judge Sutton said. "A university cannot compel a student to alter or violate her belief systems based on a phantom policy as the price for obtaining a degree."

Sutton did take note of a recent ruling by another federal appeals court involving somewhat similar circumstances. On Dec. 16, a panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld Augusta State University in Georgia over its refusal to readmit a counseling student who refused to agree to a remediation plan over her attitudes about treating gay clients.

Sutton said that at first blush, the decisions look like "polar opposites," since a student won in the 6th Circuit case but lost in the 11th Circuit case. But there was less tension or disagreement than meets the eye in the two decisions, Sutton said.

The Georgia counseling student had stated her intention to recommend "conversion therapy" to gay clients and counsel them that they could choose to be straight. That approach would violate the ACA's ethics coe by imposing the counselor's values on the client, and the university was free to prohibit such conduct as part of its curriculum, the 11th Circuit held in Keeton v. Anderson-Wiley.

"While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward," Judge Sutton said in the 6th Circuit decision.

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A federal appeals court has reversed the conviction of a former Maryland school district chief for "honest-services fraud," but upheld counts involving evidence and witness tampering and obstruction of justice.

The decision came in a case involving Andre J. Hornsby, who was chief executive officer of the Prince George's County, Md., school system in 2004 when he was investigated regarding the award of a contract for educational technology. Hornsby was in a romantic relationship with a saleswoman for the contractor, LeapFrog SchoolHouse, and was charged with steering the $956,000 contract to her and later covering up e-mails and other evidence.

Hornsby was convicted in 2008 on six of 22 charges, including three of honest-services fraud, two of evidence and witness tampering, and one of obstruction of justice.

In a Jan. 25 decision in United States v. Hornsby, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., unanimously reversed the convictions on the three fraud counts but upheld the other three counts. The court set aside Hornsby's six-year prison sentence on each count, which were to be served concurrently, and ordered that he be re-sentenced on the three counts involving tampering and obstruction of justice.

The appeals court said the convictions on the honest-services fraud counts could not be upheld in light of the U.S. Supreme Court's 2010 decision in Skilling v. United States, which narrowed the scope of the federal honest-services statute. The high court said the statute was largely confined to fraudulent schemes involving bribes and kickbacks, and did not cover conflicts of interest.

"In light of Skilling, the government concedes that the district court erred when it instructed the jury that it could convict Hornsby for honest-services fraud based on a conflict of interest," the 4th Circuit court said. The court rejected arguments by federal prosecutors that Hornsby's lawyers had failed to raise and preserve objections to evidence and jury instructions centering on the conflict-of-interest theory.

The court added that while there was evidence of a kickback--the girlfriend gave Hornsby $10,000, or half of her commission on the sale, as a "thank you" for helping her with the contract--it could not be discerned whether the jury convicted him on that basis.

"While a reasonable jury could infer from this evidence that Hornsby's scheme to defraud was all along a scheme with [the girlfriend] to receive a kickback from the LeapFrog contract, we cannot say with fair assurance that the jury convicted Hornsby on this basis alone," the appeals court said.

The Washington Post reported on Thursday that federal prosecutors could re-try Hornsby on the charges that were tossed out, but they had not decided whether they would do so.

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The U.S. Supreme Court on Monday turned aside an appeal from an Oregon family seeking reimbursement for the private placement of a child in a school charging tuition of $5,200 per month.

The case is noteworthy because the justices in 2009 used it to decide that, in principle, the main federal special education law authorizes reimbursements for private school tuition even when a child has never received special education services.

The court that year ruled 6-3 in Forest Grove School District v. T.A. that 1997 amendments to the Individuals with Disabilities Education Act meant 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.

Writing in dissent, Justice David H. Souter, joined by Justices Antonin Scalia and Clarence Thomas, warned that the majority's decision could prove costly for school districts. "The more private placement there is, the higher the special education bill," then-Justice Souter said.

The 2009 decision was a victory at the time for the parents of a boy with attention deficit hyperactivity disorder who had clashed with the Forest Grove school district in Oregon before placing the child in the private Mount Bachelor Academy.

But the family's battle with the school district continued after the Supreme Court's decision, with a federal district court considering the "equities" on remand. The district court ended up denying any tuition reimbursement to the parents because they "appear to have enrolled T.A. in [Mount Bachelor] not because of any disability recognized by the IDEA but because of his drug abuse and behavioral problems," as the district court put it.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the district court in in a 2-1 decision last April.

In their appeal to the Supreme Court, the parents said the 9th Circuit's decision that the reasons for the private school placement can be the key factor in an IDEA reimbursement decision conflicted with a decision by another federal appeals court. The parents also argued that the lower courts should have considered partial reimbursement of the private school tuition.

The justices on Jan. 23 declined, without comment, to hear the parents' appeal in T.A. v. Forest Grove School District (Case No. 11-630).

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The U.S. Supreme Court on Monday ruled unanimously that police officers who entered a home in search of guns amid an investigation of a rumored threat of school violence were immune from a family's lawsuit alleging a constitutional violation.

The justices issued an unsigned opinion without hearing arguments in Ryburn v. Huff (Case No. 11-208). The court overturned a ruling of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that had denied qualified immunity to two officers from the Burbank, Calif., police department.

The case stems from an incident at Bellarmine-Jefferson High School, a Roman Catholic school in Burbank. According to court papers, on June 1, 2007, Burbank police officers Darin Ryburn and Edmundo Zepeda responded to a call from school officials concerned about rumors that a student had written a letter stating that he planned to "shoot up" the school.

The two officers had received training on investigation of school threats based on the 1999 Columbine High School shootings and other incidents. They knew that school shooters were often the victims of bullying and were absent from school for some length of time before shootings occurred.

The officers learned that student Vincent Huff had been bullied and had been absent for two days, and at least one classmate believed the student was capable of carrying out the threat. Still, no existence of the threat letter could be confirmed.

The officers went to Huff's home to interview him. After some difficulty in finding whether anyone was at home, Huff and his mother came to the front steps. Huff appeared to be aware of the rumors and told the officers, "I can't believe you're here for that."

Sgt. Ryburn asked the mother whether they could come inside to continue the conversation. She refused, which Ryburn thought was unusual in his experience as a juvenile investigator. Ryburn then asked whether there were any guns in the house.

Mrs. Huff responded by immediately turning around and running into the house, court papers say. Ryburn was alarmed by her response and entered the house behind her, followed by Zepeda and other Burbank officers. They remained in the house for five to 10 minutes, continuing to question Huff and his mother. They did not perform a search of the home, but they did conclude that the rumor about Huff was false.

The principal of Bellarmine-Jefferson High sent a letter to parents that same day, stating that the police "concluded, as did I, that [the rumored threat] was an example of vicious and irresponsible gossip. Unfortunately, a student and his family have been deeply hurt and upset."

The Huffs sued the police under a federal civil rights law, claiming that the officers violated their Fourth Amendment rights by entering their home without a warrant. A federal district court ruled that the officers merited qualified immunity because they were faced with a "rapidly evolving incident."

A panel of the 9th Circuit court ruled 2-1 in favor of the Huffs last year. The majority said it was unreasonable for the officers to believe they were in serious, imminent harm because Mrs. Huff "merely asserted her right to end her conversation with the officers and returned to her home."

In their appeal to the Supreme Court, the officers said that among the reasons the court should review their case was to provide better guidance to the police in school shooting investigations.

"Police should be given clear direction on the ... legal limits of their powers in conducting investigations which might prevent a future Jonesboro, Columbine, or Virginia Tech," the officers' appeal said. "No one wants another school shooting tragedy that could have been averted, but for the delay in confronting the suspect at his home—where the weapons are usually obtained."

In a brief that urged the justices not to take up the case, lawyers for the Huff family said the officers were "asking the [Supreme] Court to use the national issue of school shooting threats as the basis for diminishing the protections afforded to all citizens under the Fourth Amendment from unwarranted intrusions by police officers into one's home without a warrant, exigent circumstances, or an emergency approximated by probable cause."

In its unsigned opinion, the Supreme Court backed the officers, although the opinion said little about the context of a school shooting investigation as opposed to any other situation in which the police might have been concerned about a homeowner who rushed back inside when asked about guns.

"Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding chain of events that culminated with Mrs. Huff turning and running into the house after refusing to answer a question about guns, [the officers'] belief that entry was necessary to avoid injury to themselves or others was imminently reasonable," the high court said.

The justices reversed the decision of the 9th Circuit court and ordered that judgment be entered for the Burbank officers.

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The U.S. Supreme Court on Tuesday declined to take up the issue of prayers at school board meetings.

The justices declined to hear the appeal of a school board in Delaware, which had its practice of reciting prayers before its public board meetings struck down by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

Prayers before school board meetings are commonplace in the United States, though certainly not universal.

The Delaware case involved the 8,400-student Indian River school district, which has had prayers at its board meetings since its founding in 1969, court papers say. In 2004, the district formalized its board meeting prayer policy, which calls for board members to rotate in leading a prayer or moment of silence to "solemnify" formal meetings. The policy says prayers may be sectarian or non-sectarian, "in the name of a Supreme Being, Jehovah, Jesus Christ, Buddha, Allah," or any other entity.

Court papers say that, in practice, prayers have almost always been Christian.

Two families challenged the board prayers as a violation of the First Amendment's prohibition against government establishment of religion. A federal district court upheld the practice. But in its Aug. 5 decision, the 3rd Circuit court panel said the board's policy and practices cannot be squared with the establishment clause.

The 3rd Circuit court said the key question was whether the school board's meetings and prayers were closer to the legislative prayers upheld by the U.S. Supreme Court in the 1983 case of Marsh v. Chambers, or more like other school events in which the high court's cases have limited school-sponsored prayers.

The court noted that students are frequently present at board meetings, including student government representatives who regularly advise the Indian River board, as well as academic and sports team members who are recognized by the board.

The 3rd Circuit concluded that the board meetings are closer to other school events, such as graduation ceremonies, in which school-sponsored prayers have been held to have a coercive effect on students.

"The First Amendment does not require students to give up their right to participate in their educational system or be rewarded for their school-related achievements as a price for dissenting from a state-sponsored religious practice," the appeals court said.

The 3rd Circuit decision covers Delaware, New Jersey, and Pennsylvania. The court noted that one other federal appeals court has addressed prayers before school board meetings. In a 1999 decision, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held that prayers before board meetings in Cleveland were barred by the establishment clause.

While some courts have extended Marsh to permit prayers before city council and county board meetings, the educational emphasis of school boards distinguishes them from those other local bodies, the 3rd Circuit court said.

In its appeal to the Supreme Court in Indian River School District v. Doe (Case No. 11-569), the school district said the case would present a good vehicle to clarify the law on legislative prayer at the local governmental level.

"The Indian River School Board not only embraced this tradition of legislative prayer, it did so in a manner consistent with the highest ideals of religious pluralism and tolerance," the appeal stated.

The justices declined the appeal without comment, as they did a separate appeal involving public prayer at county commission meetings.

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The U.S. Supreme Court on Tuesday declined to take up major appeals involving student free speech rights on the Internet.

One appeal encompassed two cases decided in June 2011 by the full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

The appeal in Blue Mountain School District v. Snyder (No. 11-502) involves a 3rd Circuit decision that said students who ridiculed their principals online could not be punished by school authorities because the speech was created off campus and did not substantially disrupt schools.

The 3rd Circuit held in the Blue Mountain case that a Pennsylvania middle school student's 2007 MySpace parody depicting her principal as a sex addict and a pedophile was so outrageous that no one could have taken it seriously.

In a companion case, Layshock v. Hermitage School District, the 3rd Circuit court overturned the discipline of a Pennsylvania high school student who in 2005 had created a fake MySpace profile of his principal on a computer at his grandmother's house. The phony profile played on the principal's purported interest in "big" things, such as smoking a "big blunt," being a "big steroid freak," having stolen a "big keg," and having been drunk a "big number of times."

The 3rd Circuit court found that the profile did not create a substantial disruption in school, and the court rejected the school district's arguments that other facts created a nexus between the parody and the school.

The joint appeal on behalf of the Blue Mountain and Hermitage school districts told the justices that the cases presented "important and urgent First Amendment questions regarding the scope of school officials' authority over student online speech."

"At the moment, school officials are stuck between a rock and a hard place," the appeal said. "They are responsible for protecting students and teachers from online harassment, but in doing so, they might trigger a lawsuit from a student claiming that his or her First Amendment rights have been violated. School officials cannot afford to wait any longer for a definitive answer."

Meanwhile, an appeal in Kowalski v. Berkeley County Schools (No. 11-461) involved a West Virginia student who was disciplined for creating a MySpace page targeting not an administrator but another student at her high school.

Kara Kowalski was a student at Musselman High School, in Berkeley County, W.Va., in 2005 when she created a MySpace page that suggested another female student had herpes. School officials concluded that Kowalski had created a "hate" website in violation of school policies against harassment, bullying, and intimidation. She was suspended from school for five days and given a "social suspension" of 90 days, meaning she was barred from certain school activities, including the cheerleading squad.

Kowalski sued under the First Amendment, but both a federal district court and a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld school administrators. The 4th Circuit said in a July 2011 decision that "school administrators are becoming increasingly alarmed by the phenomenon" of harassment and bullying, and that "where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators' good faith efforts to address the problem."

In her appeal to the Supreme Court, Kowalski said, "This court has never addressed the appropriate First Amendment test for student speech that occurs entirely off school premises."

The justices declined on Jan. 17 to hear the cases without comment or recorded dissent.

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A federal judge this week ordered the immediate removal of a large prayer mural addressed to "Our Heavenly Father" in the auditorium of a Rhode Island high school.

Senior U.S. District Judge Ronald R. Lagueux of Providence said the mural, put up in 1963 at Cranston High School West, is an unconstitutional government establishment of religion.

"No amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that," Judge Lagueux said in his Jan. 11 opinion in Ahlquist v. City of Cranston.

The mural reads:

SCHOOL PRAYER

OUR HEAVENLY FATHER,

GRANT US EACH DAY THE DESIRE TO DO OUR BEST, TO GROW MENTALLY AND MORALLY AS WELL AS PHYSICALLY, TO BE KIND AND HELPFUL TO OUR CLASSMATES AND TEACHERS, TO BE HONEST WITH OURSELVES AS WELL AS WITH OTHERS, HELP US TO BE GOOD SPORTS AND SMILE WHEN WE LOSE AS WELL AS WHEN WE WIN, TEACH US THE VALUE OF TRUE FRIENDSHIP, HELP US ALWAYS TO CONDUCT OURSELVES SO AS TO BRING CREDIT TO CRANSTON HIGH SCHOOL WEST.

AMEN

The mural was challenged by Jessica Ahlquist, a self-described atheist and a junior at the high school, who has said she was offended by the mural and believed it was unconstitutional.

Ahlquist's complaints, and threatened legal action by the American Civil Liberties Union of Rhode Island, prompted a debate in the community, with the Cranston School Committee voting in 2010 to retain the mural, calling it an historical artifact of the school and a secular expression of morals.

Judge Lagueux said that "no amount of history and tradition can cure a constitutional infraction. The Court concludes that Cranston's purposes in installing and, more recently, voting to retain the Prayer Mural are not clearly secular."

The judge noted that at four public school committee meetings to consider the mural, community members spoke passionately about their religious convictions as their reason for supporting the mural.

"The School Committee endorsed the position of those who believe that it is acceptable to use Christian prayer to instill values in public schoolchildren; a decision that clearly placed the 'nonadherents' outside of the political community," the judge said.

Judge Lagueux offered some thoughts to "soothe those who may believe that this decision represents a harsh result over a minor Constitutional infraction."

He quoted Roger Williams, the founder of Rhode Island, on religious tolerance, and cited the Supreme Court's language in the 1963 school prayer decision in Abington School District v. Schempp.

"The Supreme Court urges us to remember that 'insistence upon neutrality, vital as it surely is for untrammeled religious liberty, may appear to border upon religious hostility," the judge said, quoting from Schempp. "'But in the long view the independence of both church and state in their respective spheres will be better served by close adherence to the neutrality principle.'"

The Associated Press said in a Thursday story the Cranston School Committee plans to discuss the decision at its school board meeting on Tuesday.

Photo: A prayer banner is seen on the wall of an auditorium at Cranston High School West, in Cranston, R.I., in 2011. (Steven Senne/AP)

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The U.S. Supreme Court on Wednesday ruled unanimously that the Constitution's religion clauses bar lawsuits against churches by their ministers, and it held that a Lutheran school teacher could not sue her church employer for discrimination because she was effectively a minister.

"The members of a religious group put their faith in the hands of their ministers," wrote Chief Justice John G. Roberts Jr. "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, ... interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs."

The ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (Case No. 10-553) was without dissent, which was a surprise given the sharp disagreement among interest groups that filed briefs and from the tenor of oral arguments in the case.

The dispute involved Cheryl Perich, a 4th grade teacher at Hosanna-Tabor in Redford, Mich., who mostly taught secular subjects but was a "commissioned minister" of the Lutheran faith. After she took a leave of absence during the 2004-05 school year because she suffered from narcolepsy, Perich sought to return to her job but clashed with church officials, who threatened to fire her.

When she threatened a lawsuit, the church dismissed her, and Perich complained to the EEOC. She claimed that the church violated her rights under the Americans with Disabilities Act of 1990 over its handling of her disability leave. The federal EEOC took up her case solely on the claim that the church had retaliated against her in violation of the ADA.

The church sought dismissal of the suit based on the "ministerial exception," a principle recognized in lower federal courts but never ruled on by the Supreme Court until Wednesday. Perich's suit was barred by the First Amendment's religion clauses, the church said, because the claims concerned the employment relationship between a religious institution and one of its ministers.

The church won in a federal district court but lost in the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which held that Perich was not a minister because her duties as a "called teacher" of the Lutheran faith were essentially identical to her duties as that of a lay teacher at the church school.

In his opinion for the court, Chief Justice Roberts noted that church-state controversies over religious offices go back at least as far as the Magna Carta, which sought to guarantee that "the English church shall be free."

Roberts said that by imposing an unwanted minister on a church, the state would infringe the First Amendment's guarantee of free exercise of religion, "which protects a religious group's right to shape its own faith and mission through its appointments."

Roberts went on to explain that there were numerous reasons why Perich qualified as a minister of the Lutheran church, and thus the church was entitled to the ministerial exception for its employment of her. Perich had formal religious training as a "commissioned minister" of the church, he noted, and she held herself out as a minister by accepting a formal call to service and by accepting a housing allowance available only to those in the ministry. She also taught her students religion four days a week and took them to chapel services once a week, the chief justice noted.

The lower appeals court erred by focusing on Perich's secular duties, Roberts said.

"It is true that her religious duties consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects," the chief justice said. "The issue before us, however, is not one that can be resolved by a stopwatch."

"The interest of society in the enforcement of employment discrimination statutes is undoubtedly important," Roberts said. "But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission."

Justice Clarence Thomas said in a concurrence that courts should defer to a religious organization's "good-faith understanding of who qualifies as a minister."

Justice Samuel A. Alito Jr., in a concurrence joined by Justice Elena Kagan, stressed that the ministerial exception was not limited to covering those church employees with formal religious training.

"It should apply to any 'employee' who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith," Justice Alito said. "While a purely secular teacher would not qualify for the 'ministerial' exception, the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones."

The decision sparked sharply differing reactions.

"The need of churches to have control over the selection of people who serve as their ministers and their religious teachers is pretty central to the First Amendment, and the Supreme Court agreed," said Douglas Laycock, a professor of law and religion at the University of Virginia at Charlottesville, a noted scholar of the religion clauses who argued the Michigan church's case before the justices.

Christopher C. Lund, a law professor at Wayne State University in Detroit, who wrote a friend-of-the-court brief on behalf of the Lutheran Church-Missouri Synod, which employs nearly 10,000 teachers at its nearly 1,100 parochial schools, said the two sides in the dispute "offered very different approaches to church and state, and the court adopted quite a sweeping view of religious freedom."

But the Rev. Barry W. Lynn, the executive director of Americans United for Separation of Church and State in Washington, said in an interview that the decision "allows a religious body to declare employees to be 'ministers' and then fire them or treat them shabbily for any reason, religious or otherwise. ... It's astonishing."

Leslie C. Griffin, a constitutional law professor at the University of Houston Law Center, who organized a friend-of-the-court brief by law professors on behalf of the fired teacher, said," I think this was a key place for the court to not say that religious employers can treat their employees any way they like. Why would you want to give religions the green light to discriminate?"

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The U.S. Supreme Court appeared inclined on Tuesday to rule against public-employee unions by requiring that they provide nonmembers with additional opportunities to object to special assessments or dues increases to fund political goals.

But members of the court also are weighing whether the case before it is moot—a question that dominated roughly half of the oral argument in Knox v. Service Employees International Union, Local 1000 (No. 10-1121).

The case involves the intricate area of labor law involving "agency fees," or service fees, that public-employee unions charge non-union members for collective-bargaining benefits and other permissible costs. Several of the Supreme Court's key precedents in this area involved teachers' unions, though the case argued Tuesday involves a unit of the SEIU that represents California state government employees.

The Supreme Court has sided with anti-union forces on related issues in several recent cases, and the new case could be highly relevant as teachers' unions and other public-employee labor organization gear up to respond to state legislative measures aimed at curbing their collective-bargaining rights. The National Education Association has filed a friend-of-the-court brief on the SEIU's side, as has the AFL-CIO, of which the American Federation of Teachers is a member.

The SEIU case involves a 2005 special assessment—or temporary dues increase, as the union characterizes it—charged to union members and non-members alike for certain political activities, including to fight two anti-union ballot measures backed by then-California Gov. Arnold Schwarzenegger.

The union approved the "Political Fight-Back Fund" for what one union document called "a broad range of political expenses, including television and radio advertising, direct mail, voter registration, voter education, and get out the vote activities in our work sites and in our communities across California."

Those who refuse to join public-employee unions must still pay "fair share" or agency fees because they benefit from collective bargaining. Under a 1986 Supreme Court decision known as Chicago Teachers Union v. Hudson, public-sector unions must provide an accounting to non-members and give them the chance to object to political spending or other non-bargaining-related costs (and thus not pay for them).

In its June 2005 "Hudson notice," the SEIU local reported that those nonmembers who objected to paying for costs that could not properly be charged to them would pay 56.35 percent of the full dues rate as their fair share fee. The union's full dues rate was 1 percent of gross income.

In September 2005, the union approved the temporary dues increase to 1.25 percent of gross income. It did not provide an additional Hudson notice to nonmembers, and it continued to charge objectors the same proportion of dues as before the increase. The union considered that some of the additional money raised would go for political activities and some for collective-bargaining. The next year's accounting under Hudson determined that only about one-quarter of the increase went for chargeable collective-bargaining expenses, meaning that the objectors got some of their money back.

Later that year, some non-members filed a class action backed by the National Right to Work Legal Defense Foundation, based in Springfield, Va. They argued that the special assessment was unconstitutional in the absence of a new Hudson notice and a chance to object to any political spending.

A federal district court ruled largely for the non-members, but a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held in 2010 that the June 2005 Hudson notice was sufficient to protect nonmembers' First Amendment right of association. The panel also held that not all political expenses would automatically be non-chargeable to objectors, and that one of the California ballot propositions was sufficiently related to collective bargaining to allow the spending to fight it to be chargeable.

After the Supreme Court granted review of that decision last year, the SEIU decided to offer non-members a 100 percent refund of the temporary dues increase. That meant the case was now moot, the union argued, because the class had received all of the relief it had sought in its suit.

Not so fast, said the National Right to Work Foundation. The "eleventh-hour" move "is a classic attempt to manipulate the [Supreme] Court's jurisdiction to insulate a favorable decision from review," the group said in court papers.

The mootness issue was clearly on the minds of several of the justices during oral arguments on Tuesday.

"Why did you give up once the case was granted here?" Chief Justice John G. Roberts Jr. asked of the lawyer representing the union, Jeremiah A. Collins, of Washington. Collins said the union's leadership, which has changed since 2005, "thought about the situation and came to the realization that they have no stake in the procedures that are at issue here. This is a local that had never done a mid-year increase in the past."

William J. Young of the National Right to Work group, says the case is not moot because "the union would be free to return to its old ways.

"The union made this wonderful and meaningful policy change" and "this argument was not raised until we were before this court," Young said.

On the merits, Young said, "We believe a that a new Hudson notice is required whenever there is a material alteration in the obligations that are imposed upon non-members."

Collins said challenges to special dues increases have been rare, and thus the need for special Hudson notices have been a "non-event in the real world."

"What we have here is ... a temporary dues increase which became permanent and which simply increased the total flow of dues and fees into the general treasury and which went for the usual, the kinds of activities the union had always funded," Collins said.

Justice Sonia Sotomayor wondered why an extra Hudson notice would be burdensome for the union. Collins said each notice could lead to disputes and litigation and add to the union's costs.

Justice Samuel A. Alito Jr. flipped the situation on the union, asking Collins what would happen if the proponents of the anti-labor ballot initiatives came to the SEIU seeking an interest-free loan "because we want to use this money to persuade the electorate to enact these, but don't worry, because we're going to pay it back right after the election, when we've achieved our electoral ends. Would the union provide the money because it's all going to come out in the wash?"

Collins appeared dumbfounded, saying, "I really can't answer the question. I don't know."

"Well, gee, I really doubt that it would," Alito said.

Justice Anthony M. Kennedy jumped on Collins as well.

"You're taking someone's money contrary to that person's conscience," Kennedy said. "And that's what the First Amendment stands against."

Kennedy said the high court should consider whether an "opt in" requirement would be preferable to the current system. The idea of reversing the status quo—having non-members opt in to paying fees, rather than requiring objectors to opt out each year—is anathema to public-employee unions. Because the current system requires affirmative action on the part of objecting non-members, it is usually just a minority who object to their agency fees. (Only 10.5 percent of non-members objected to the SEIU local's 2006 Hudson notice.)

Justice Stephen G. Breyer appeared most sympathetic to the union's position.

"The virtue of the present system" is that while it may result in some objectors making "forced loans" to the unions, "it does wash out in the wash, and it ends up being fair to the objectors," he said. "And it's simply hard to think of a better system that doesn't provide more administrative problems than the existing one."

A decision in the case is expected by late June.

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The U.S. Supreme Court on Monday declined to hear appeals in cases involving special education and Title IX.

In one case, the justices declined to hear the appeal of a school district that was ordered to provide compensatory tutoring because it failed to identify a student's disability.

In the other case, the high court refused to hear the appeal of a group that challenges the U.S. Department of Education's test for compliance with Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in federally funded education programs.

In the special education case, Compton Unified School District v. Addison (Case No. 10-886), the justices had asked the U.S. solicitor general's office for its views last April on a question under the federal Individuals with Disabilities Education Act: whether a parent may bring a claim in a due-process hearing that a district violated the law's "child-find" provision.

That provision requires that all children with disabilities who are in need of special education services be identified, located, and evaluated.

The Compton, Calif., district appealed lower court rulings that a mother had a valid legal claim under the IDEA that the district had failed to identify her daughter's disabilities.

According to court papers, when the student was in 10th grade, her teachers became concerned that her work was "gibberish and incomprehensible" and that she had failed every class. The school district referred the girl to a mental health counselor, who recommended that the student be evaluated for learning disabilities. The district did not follow the recommendation, and it promoted the girl to the 11th grade.

The mother later made a request for an individualized education program for her daughter, and the district determined that the girl was eligible for special education services for a learning disability.

The mother brought an administrative claim under the IDEA, arguing that the school district failed under the law's "child-find" requirement to identify the girl's disabilities sooner. An administrative law judge largely sided with the family, ordering as much as 150 hours of compensatory tutoring for the girl's lost educational opportunities.

In a brief filed Nov. 18, U.S. Solicitor General Donald B. Verrilli Jr. had told the court it should not take up the school district's appeal because, among other reasons, the Compton district was mistaken to argue that the child-find provision covers only a school district's refusal to act to identify eligible children, not its failure to act.

The justices declined the school district's appeal without comment on Jan. 9.

In the Title IX case, the group Equity in Athletics Inc. challenged the elimination of several men's sports teams at James Madison University in Harrisonburg, Va. The group also used the case to challenge the federal Education Department's test for compliance with Title IX, a claim the group has been unsuccessful in making before.

Under that 1979 test, an education institution is in compliance when, first, intercollegiate athletic opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; second, where members of one sex are underrepresented, opportunities are expanded; and third, the institution can show that members of the underrepresented sex have been fully and effectively accommodated by the present program. An institution need only meet any one of the three prongs of the test.

Two lower federal courts ruled against the suit filed by Equity in Athletics, with the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruling last year that the three-part test is consistent with the text of Title IX and satisfies equal protection principles under the U.S. Constitution.

The justices declined without comment to hear the group's appeal in Equity in Athletics Inc. v. Department of Education (No. 11-357).

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A South Carolina radio talk show host has won a round in an ongoing battle with the state school administrators' group over a Freedom of Information Act request he filed. But the host appears to be losing the war.

A federal appeals court this week ruled against the South Carolina Association of School Administrators, or SCASA, which was seeking a declaratory judgment that the state's information law did not apply to private groups such as it.

Rocky DiSabato, a conservative Charleston, S.C., radio host who is also known as "Rocky D," filed a public-records request with the association, seeking copies of anything related to the association's views on the Obama administration's economic-stimulus law.

The association had sued then-South Carolina Gov. Mark Sanford in 2009 over his refusal to apply for federal stimulus funds. DiSabato sought records from the administrators' group about its lawsuit, as well as records of all telephone calls made or received by association staff members over a seven-month period.

The association rejected DiSabato's records request, saying it was not a public entity and not subject to the state's FOIA law. The radio host sued the association in a state court, and soon after, the association sued DiSabato in federal court. The association alleged that the information law's broad disclosure requirements, if applied to the administrators' group, would chill its political speech and issues advocacy efforts in violation of the First Amendment.

Both a federal district court and a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled against the association's suit on the principle of "abstention." That is, the federal courts ruled that because a state court was considering the same issues raised by the association's federal suit, the federal courts should bow out.

And in its Jan. 4 decision in South Carolina Association of School Administrators v. DiSabato, the 4th Circuit panel noted that a South Carolina trial court had dismissed DiSabato's suit seeking to force disclosure from the association. The state court held that "the FOIA's open meeting and records disclosure requirements restrict SCASA's political speech and issue advocacy without a substantial relation to the purpose of the FOIA, and where narrower means are available to achieve the FOIA's purpose."

The 4th Circuit said that the association "clearly ... had an adequate opportunity to raise its First Amendment arguments before the state court," and thus the federal courts had good reason to abstain from getting involved. The federal appellate court points out that the state court ruling has been appealed, with South Carolina's attorney general intervening to defend the application of the state FOIA law to groups such as the administrators' association that receive state funds.

"In sum, SCASA has already obtained the relief it sought with this federal suit through its participation in an earlier-filed state suit," the 4th Circuit said.

Meanwhile, a South Carolina newspaper reports that DiSabato lost his radio gig last month.

"Rocky D, a scratchy-voiced conservative who jabbered during the afternoons as 'Radio Free Rocky D,' was told by [WTMA-AM] station management after his show Wednesday he would not be coming back," the Charleston Post and Courier reported on Dec. 2. "His departure ends one of Charleston's longest-running talk radio shows of recent times."

The action did not appear to have anything to do with Rocky D's battles with the administrators' group. The Post and Courier said several personnel changes were made after the station's ownership changed hands.

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Robert L. Carter, who as a civil rights lawyer argued the Brown v. Board of Education case both at the trial court in Topeka, Kan., and in the U.S. Supreme Court, died this week in New York City. He was 94.

Carter, who was a retired federal district judge in Manhattan, died on Tuesday morning, Jan. 3, from complications of a stroke, The New York Times reported.

Carter was a chief lieutenant to Thurgood Marshall at the NAACP Legal Defense and Educational Fund in the 1940s and 50s when the organization led the legal assault on racial segregation in American education. He was an advocate for using the research of psychologist Kenneth B. Clark, whose black and white "doll studies" showed how segregation created feelings of inferiority among black schoolchildren.

In 1950, Carter successfully argued in the Supreme Court on behalf of George McLaurin, a black doctoral candidate in education at the University of Oklahoma, who was admitted to the formerly all-white program under court order but faced segregation within the school. The Supreme Court, in McLaurin v. Oklahoma Board of Regents for Higher Education, ruled 9-0 that the university's treatment of the black student fell short of the "separate but equal" standard then still in effect. The decision, along with a similar ruling in Sweatt v. Painter (argued by Marshall and decided the same day in 1950), helped lay the groundwork for the attack on segregation in elementary and secondary education.

In 1951, Carter traveled to Topeka as the NAACP Legal Defense Fund's lead counsel in the Brown case. Thurgood Marshall did not participate in that trial, as the organization was pressing several cases around the country attacking segregated schooling.

According to Simple Justice, Richard Kluger's exhaustive 1975 account of Brown and its companion cases, Carter was joined in Topeka by Jack Greenberg, a white NAACP lawyer who would go on to succeed Marshall as leader of the Legal Defense Fund. Because of Jim Crow laws, Carter, who was black, could not stay in Topeka's main hotels, so he and Greenberg decided to stay together in a "colored" hotel. "They were stunned at its dirtiness," Kluger writes, and when Greenberg pulled on a light cord in the bathroom, part of the ceiling came down on him. The two lawyers moved to the home of a local NAACP board member for the duration of the trial.

Kluger provides a detailed account of the Brown trial before a three-judge federal district court, which in the summer of 1951 issued a unanimous decision upholding the Topeka school district's racial segregation policy. The judges were sympathetic to the NAACP's arguments, but they felt constrained by the Supreme Court's 1896 decision in Plessy v. Ferguson upholding the doctrine of separate but equal.

But Carter and Greenberg won a "consolation prize" from the Kansas court, Kluger said. In a finding of fact accompanying its opinion, the Kansas court echoed social science testimony presented by the NAACP lawyers and said, "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. ... A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system."

Carter would go on to argue the Topeka case in the Supreme Court in 1952, and the 1953 reargument. In his unanimous 1954 opinion for the high court in Brown, Chief Justice Earl Warren quoted the finding by the Kansas court about the detrimental effects on black children of separating them by their race. And in his own words, Warren said, "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

Carter won 21 of 22 cases he argued in the Supreme Court, the NAACP LDF said in an appreciation. He left the LDF in 1957 to become general counsel of the NAACP, with the two organization having separated by then.

Carter was appointed to the U.S. District Court in Manhattan by President Richard M. Nixon in 1972. The Times reported that he is survived by two sons, one grandson, and a sister.

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