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October 13, 2000
- Court Allows Pupils Based On Race
WASHINGTON (AP) _ An experimental elementary
school that makes children's race a factor when selecting its
students survived a Supreme Court challenge Monday.
The justices let stand rulings that the school
run by the University of California has a justifiable reason for
considering race and therefore does not violate the rights of
the children it turns away.
The Corinne A. Seeds University Elementary
School, run by UCLA's Graduate School of Education and Information
Studies, has 460 students - 4-year-olds to sixth-graders. The
``laboratory school'' is used to study racial groups' learning
skills and recommend new teaching methods.
Aiming for a particular student population,
the school's officials take into account applicants' race and
ethnicity, sex, family income, dominant language and other factors.
The class of 4-year-olds that entered the school in 1995 was a
typical one - 39 percent white, 22 percent Hispanic, 13 percent
black, 9 percent Asian and the rest mixed-race.
About 150 applicants were turned away, among
them Keely Tatsuyo Hunter. Her parents sued, contending that the
school's consideration of race violated the Constitution's guarantee
of equal protection.
A federal judge said the school's use of race
in admissions served a ``compelling interest,'' improving
the quality of education in urban public schools. A three-judge
panel of the 9th U.S. Circuit Court of Appeals upheld the school's
policy by a 2-1 vote last year.
The panel called the school ``a valuable resource
to California's public ucation system.'' It said the school's
use of race and ethnicity for esearch was similar to a medical
school's use of Jewish patients to study Tay-Sachs disease, or
blacks to study sickle-cell anemia.
But the dissenting judge, Robert Beezer, said
the ruling betrayed ``a disquieting renewed tolerance for the
use of race in government decision-making.''
In the appeal acted on Monday, lawyers for
the Hunter girl's parents said other research-oriented schools
will spring up now that they have ``the green light to enforce
``Once the downhill slide has started, there
is no delineated stopping point until the slide bottoms out in
race-based preferences in all sectors of society,'' the appeal
In a series of 5-4 decisions over the past
several years, the nation's highest court has curtailed government's
ability to make race a consideration when awarding contracts and
drawing election districts. The case is Hunter v. Regents of University
of California, 00-135.
- The Southern District of New York now has
before it a class action lawsuit for violation of federal law
and international human rights standards, brought against Robert
Mugabe, the President (and dictator) of Zimbabwe, several of his
colleagues and cohorts, and his political party, the Zimbabwe
African Nation Union -- Political Front (ZANU-PF). The action
is based on the Alien Tort Claims Act, 28 USC sec. 1350, and the
Torture Victims Protection Act, and seeks compensatory and punitive
damages from Mugabe and his codefendants in their personal capacities
for acts of extra-judicial killings, political harassment and
torture, and deprivation of civil rights and property, all in
violation of international norms and standards as codified in
the International Convention Against Torture and other human rights
A private process server personally served
Mugabe in Harlem, New York, as he was entering a church where
he was scheduled to speak. Mugabe kept the summons and complaint
in hand as he entered the church. A colleague and fellow officer
of Mugabe named Stan Mudenge was personally served on the street
in Manhattan the next day. Both men are officers of ZANU-PF,
in addition to their personal capacities in the Zimbabwean government.
The personal service presented considerable
personal risk to the process server, as the scene was replete
with NY Police, Secret Service officers, as well as Minister Louis
Farrakhan's security entourage. On filing the complaint, counsel
for the plaintiffs had moved eds parte for, and received, an order
form the US District Court permitting alternate forms of service
by serving the Secret Service Agent in Charge on the scene, who
would then have been required to personally deliver the papers
and make a return of service to the Court. The US State
Department, however, acting through the US Attorney for the Southern
District, intervened the next day and successfully moved to vacate
the order permitting alternate means of service. The plaintiffs
and their counsel have complained that this was an unjustifiable
and needless intrusion by the Government that had no real interest
or standing and put the individual process server at great risk
of personal harm.
The plaintiffs are five residents of Zimbabwe
(four African and one Caucasian), who were personally harassed,
beaten or tortured for their actives in support of the Movement
for Democratic Change (MDC), the nascent opposition political
party in Zimbabwe. The plaintiffs also represent the estates
of deceased spouses and relatives who were campaigning for MDC
or merely owned private farms in Zimbabwe, when they were dragged
off by ZANU-PF operatives at the direction and orders of Mugabe
and his officers, tortured and then killed. Counsel for
the plaintiffs is Theodore M. Cooperstein, a Washington, D.C.
attorney who litigates in federal courts. (Cooperstein is also
Vice-Chair of the Civil Rights Practice Group of the Federalist
To date, no answer or other response has been
filed or served on behalf of Mugabe and the defendants. In press
releases form Harare, Zimbabwe, Mugabe spokesmen are reported
as saying the American press is mistaken and that there was no
service of process. Later, the same spokesmen added that
they felt the service of process had no legal validity.
The Alien Tort Claims Act was enacted by the
First Congress as part of the Judiciary Act of 1789. The
statute gives federal court jurisdiction to any action in tort
brought by an alien for "violation of the Law of Nations."
The statute has seen renewed life in the past
decades, including a case brought against
Chinese leader Li Peng and also against the leader of the self-proclaimed
Bosnian Serb Republic, Radovan Karadzic, who suffered a Southern
District of New York jury verdict in excess of $45 million in
the past months. The Second Circuit, among other courts, has interpreted
the Alien Tort Claims Act to encompass standards of human and
civil decency incorporated in customary international law, to
include The International Covenant on Civil and Political Rights
as well as conventions against torture and extra-judicial killing
committed under color of official governmental authority.
The Torture Victims Protection Act, codified at 28 USC sec. 1350,
was Congress's implementation legislation enacted to enforce the
International Convention Against Torture, and Other Cruel, Inhuman
or Degrading Treatment or Punishment which the United States
ratified in 1990.
September 27, 2000
- VOTING RIGHTS FOR FELONS
Just as Florida is proving to be a crucial "battleground"
state in the upcoming election, a lawsuit has been filed challenging
the constitutionality of that state's law forbidding convicted
felons from voting. Attorneys from New York Law University
School of Law's Brennan Center for Justice, acting in conjunction
with the Lawyers' Committee for Civil Rights Under Law, claim
that forbidding felons from voting has an intentional, disproportional
impact on black males. http://washingtonpost.com/wp-dyn/articles/A57036-2000Sep21.html
September 13, 2000
- Governor Jeb Bush and Chancellor Adam Herbert announced a dramatic
12 percent increase in the number of minority students entering
the state university system as first-time-in-college students.
Preliminary enrollment figures provided by Florida's 10 public
universities and the Board of Regents indicate that an additional
1,234 African-American, Hispanic, Asian and Native American students
have entered the university system compared with last year's entering
September 7, 2000
- The Institute for Justice recently published State
of the Supreme Court 2000: The Justices Record on Individual
Liberties. Visit http://www.ij.org/publications
to view the publication.
- Kozmo to face discrimination claims in D.C.
Days after a federal court dismissed a discrimination lawsuit
against Kozmo.com, the plaintiffs are preparing to file a similar
suit at the state court level. Andrew Marks, the lawyer for two
Washington, D.C., residents and a Washington, D.C.-based civil
rights group, today said he will file a new lawsuit this week
in the District of Columbia. The suit alleges that Kozmo refused
to deliver goods to predominantly black communities. The suit
also alleges that the online convenience store violated the D.C.
Human Rights Act, a local anti-discrimination measure.
September 4, 2000
CREDIT WHERE CREDIT IS DUE
In 1996, California voters approved Proposition 209, the California
Civil Rights Initiative, forbidding race and gender preferences
in public education, hiring and employment. In response to Proposition
209, the City of San Jose re-styled its program of preferences
into a program that purportedly mandates targeted outreach. City
contractors must either meet goals for employing "disadvantaged"
groups, or prove that they made efforts to recruit members of
such groups. Failure to meet these requirements, claims the City,
might be evidence of discrimination. Under the City's logic, preferences
must be granted to ensure that Proposition 209's prohibition on
preferences is maintained.
At the behest of University of California Regent Ward Connerly,
California Governor Gray Davis (D) exercised his line-item veto
authority to delete from the state budget an appropriation of
$380,000 for targeted minority outreach at UCLA's Medical School.
The Governor's veto message noted that targeted minority outreach
is suspect under Proposition 209, California Constitution art.
I, § 31, forbidding preferences in education on the basis
of race. Governor Davis noted it would be unwise to engage in
such a practice while the constitutionality of targeted outreach
is under review by the California Supreme Court.
Not satisfied with the City's new program of granting preferences,
contractor Hi Voltage Wire Works challenged its constitutionality
under Proposition 209. A trial judge agreed, striking down the
program. This decision was, in turn, unanimously affirmed by a
panel of the California Court of Appeal, Hi-Voltage Wire Works
v. City of San Jose, 72 Cal.App.4th 600 (1999). Last year, the
California Supreme Court unanimously granted review of the case.
A ruling is expected sometime this year.
Although federal courts have already upheld the constitutionality
of Proposition 209, the U.S. Justice Department has filed an amicus
brief in the case claiming that applying Proposition 209 would
prevent the City from fulfilling a federal duty to grant preferences.
- FLORIDA CIVIL RIGHTS SETBACK
On July 13, the Florida Supreme Court, as expected, ruled
that the Florida Civil Rights Initiative could not proceed as
a ballot measure. The initiative already had been postponed from
the 2000 ballot because of the pending legal challenge. The decision
can be accessed at http://www.flcourts.org.
- RACE AND GENDER PREFERENCES IN ARMY RETIREMENT PROGRAM STRUCK
Last month, the United States Court of Claims struck down the
Army's rules granting preferences to minority and women officers
who seek to avoid mandatory early retirement. By establishing
a "goal" for retaining certain proportions of minority
and female officers, and subjecting officers to different evaluation
procedures based on an individual officer's race and sex, the
Army violated its officers constitutional right to equal treatment
under the law. The case is Christian v. United States http://www.law.gwu.edu/cofc-data/smith/00/christian.pdf
- MASSIVE RESISTANCE, TEXAS-STYLE
In 1996, the United States Court of Appeals for the Fifth
Circuit issued its landmark decision in Hopwood v. University
of Texas Law School, rejecting race preferences in law school
admissions as unconstitutional violations of the right to equal
protection of the law. The Appeals Court returned the case to
the District Court to determine the appropriate extent of relief.
Having failed to persuade the Supreme Court to review the decision,
Texas officials continue to resist compensating the plaintiffs,
as well as the adoption of race-neutral admissions policies.
The District Court ordered Texas to stop discriminating on the
basis of race, but declined to order the aggrieved plaintiffs
admitted to the school, finding that the plaintiffs would not
have likely been admitted absent the unlawful discrimination.
The plaintiffs received $1 for having been subjected to a discriminatory
policy. Successful civil rights plaintiffs are entitled to their
attorney's fees, but this claim was severely restricted as well.
Both sides are appealing the order. Plaintiffs seek admission
to the law school and greater compensation, as well as a larger
attorney fee recovery. The state seeks to throw out the injunction
forbidding it from discriminating against law school applicants,
arguing that since discrimination is allowed in other jurisdictions,
Texas schools cannot effectively compete for minority students.
Oral arguments on the appeal were heard June 7.
August 19, 2000
- Respondents Hi-Voltage Wire Works, Inc., and Allen Jones hereby
submit their reply to the amici curiae briefs filed by the State
of California (State), NAACP Legal Defense and Educational Fund,
Inc. (NAACP), Mission Hiring Hall, et al., and National Asian
Pacific American Legal Consortium, et al. (NAPALC).
August 16, 2000
- Police Alcohol "Sniffer" Raises New Questions
Virginia State police are employing the PAS III "Sniffer"
to detect drunk drivers at checkpoints and traffic stops. Surreptitiously
concealed inside a flashlight or a clipboard, the device automatically
checks the blood alcohol level of all drivers and has alarmed
many civil libertarian groups. For more
August 1, 2000
- The National Federation of the Blind withdrew its lawsuit against
America Online Inc. in order to give the company time to make
its Internet service accessible to the blind, the company and
the Federation said Wednesday. See for more details: http://legalnews.findlaw.com/legalnews/s/20000726/techaol.html
- The University of Georgia's practice of granting racial preferences
in admissions has been struck down as unconstitutional.
- Race ruling slams UGA
Bill Rankin - Staff ----- Tuesday, July 25, 2000
The University of Georgia's race-conscious admissions program
is unconstitutional, a federal judge ruled Monday. In a strongly
worded opinion, U.S. District Judge Avant Edenfield of Savannah
rejected UGA's arguments that the promotion of diversity in higher
education is a compelling state interest.
"To base racial preferences upon an amorphous, unquantifiable
and temporarily unlimited goal is to engage in naked racial balancing,"
The judge ruled in favor of three white women denied admission
to UGA in 1999. He also ordered the university to offer the women
admission and to compensate them for having to pay more money
to attend other schools.
UGA President Michael Adams called Edenfield's ruling "another
step" in the legal process.
"We respect the court and we want UGA admissions to comply
with federal law," he said. "We also want to be as aggressive
as possible within the law in attracting people of all races and
Adams said he needs to consult with legal counsel before deciding
whether to appeal the ruling and determine what impact it will
have on admissions policies for future classes.
UGA has admitted about 90 percent of its students strictly on
academic performance. The rest were accepted on a combination
of up to 12 characteristics, including race and gender.
The three white female plaintiffs --- Jennifer Johnson, Aimee
Bogrow and Molly Ann Beckenhauer --- would have been considered
for admission had they been UGA no longer gives preferences to
male applicants. But in September, Adams said the school will
continue to use race-based preferences so UGA will be accessible
and representative of the total state population.
The university has modeled its admissions program on the 1978
U.S. Supreme Court decision, Regents of the University of California
vs. Bakke, in which the late Justice Lewis Powell wrote that diversity
in higher education is a compelling state interest.
But Edenfield noted that Powell said this was necessary to overcome
the lingering effects of past discrimination, and UGA is not making
such an argument. UGA's defense, Edenfield said, is at odds with
more recent Supreme Court decisions and involves unconstitutional
July 26, 2000
- Charles J. Cooper, Michael W. Kirk, and Noel J. Francisco, of
the law firm Cooper, Carvin, & Rosenthal, have just completed
the trial of a school desegregation case in Rockford, Illinois.
In this case, a local school district is seeking "unitary
status," i.e., an end to federal judicial control of the
school system. Rockford's schools are in near perfect racial balance,
and the school district has already spent several hundred million
dollars in furtherance of the Court's orders. A decision in this
case is expected sometime this Summer.
- Insurance Redlining and Disparate Impact: The Application
of a Federal Civil Rights Doctrine to Homeowners Insurance By
Robert R. Detlefsen
Allegations of inner-city insurance redlining are increasingly
facilitated through the jurisprudence of "disparate impact,"
a legal doctrine holding that a policy or practice based on race-neutral
criteria may nevertheless constitute illegal discrimination if
it has a disproportionate adverse impact on racial minorities
or women. Disparate impact analysis would require insurers to
document a precise cause-and-effect relationship between a challenged
underwriting variable and its associated risk. Moreover, they
would be required to show that no "less discriminatory"
risk-assessment technique is available. If it is not possible
- or too costly - to meet this burden, insurers will have no choice
but to abandon the use of those risk-selection practices and cost-based
pricing mechanisms that yield a disparate racial impact. This
will result in higher premiums and less insurance availability
for consumers. Furthermore, dubious charges of unfair discrimination
will exacerbate racial tensions and divert attention from the
social and economic pathologies of which insurance costs are merely
To read the executive summary click here: http://www.ceousa.org/html/hud.html
- Approximately 10,000 protestors took to the state Capitol in
Tallahassee, Florida March 7, protesting against Governor Jeb
Bushs "One Florida" plan to eliminate preferences
in state contracting and university admissions. The Governors
plan was proposed in an attempt to thwart a more comprehensive
proposed ballot initiative abolishing preferences altogether,
in the fashion of Californias Proposition 209 and Washington
States Initiative 200. Indeed, at least with respect to
university admissions, "One Florida" is race-conscious
in that it is tailored to achieve the same artificial racial balance
created by the more overt preferences it replaces. Judging by
the reaction of the crowd in Tallahassee, angrily denouncing "Jeb
Crow," even abolishing preferences in name only is too much
for preference proponents.
- On March 6, the day before the anti-"One Florida"
rally, the Florida Supreme Court heard arguments on the Florida
Civil Rights Initiative ("FCRI"). Florida applies severe
procedural requirements for ballot initiatives, and this is a
major hurdle for FCRI to appear on the Fall 2000 ballot. Preference
proponents are arguing that in addressing discrimination on the
basis of race and sex, in public education, employment,
and contracting, the initiative targets multiple subjects
and thus violates the requirement that initiatives address only
a single topic.
- While Florida struggles with the question of whether preferences
make for good public policy, courts throughout the land continue
to find that preferences are unconstitutional. In December, the
Fifth Circuit Court of Appeals struck down Jackson, Mississippis
15% quota for utilizing minority firms in city contracts. The
set-aside was not saved by a provision excusing prime contractors
from meeting the quota by demonstrating "good faith efforts"
to meet the "goal." W.H. Scott Construction Co. v.
City of Jackson, Mississippi, 199 F.3d 206 (5th
Cir. 1999). On February 8, 2000, a federal judge in New Jersey
enjoined enforcement of a law that required a 15% minority "goal"
in contracts for the provision of goods and services to casinos.
Association for Fairness in Business, Inc. v. New Jersey,
82 F.Supp.2d 353 (D.N.J. 2000). On February 16, 2000, a federal
judge in Baltimore found that citys 20% minority and 3%
woman set-asides in construction contracts unconstitutional. Associated
Utility Contractors of Maryland, Inc. v. Mayor and City Council
of Baltimore, 83 F.Supp.3d 613 (D.Md. 2000). And on the day
of the anti-"One Florida" rally in Tallahassee, a federal
judge in Denver struck down that citys race and gender preference
scheme for public works projects as unconstitutional. Concrete
Works of Colorado, Inc. v. The City and County of Denver,
__ F.Supp.2d ___, 2000 WL 266307 (D. Colo. March 7, 2000).
- The impact of abolishing preferences at Californias public
universities continues to be measured. At the University of Californias
more competitive campuses Berkeley, Los Angeles, and San
Diego blacks and Latinos are being admitted at far lower
rates than they were prior to the abolition of preferences. However,
system-wide, Latino admissions are actually up since the abolition
of preferences. Asians now constitute the largest group of incoming
students at Berkeley, UCLA, UC San Diego, UC Irvine, and UC Riverside.
Without any preferences, 56% of admission offers to the University
of California system are extended to women. http://www.latimes.com/print/asection/20000404/t000031397.html
- The Downey, CA Unified School District agreed to sell advertising
inside its baseball stadium. However, the school district refused
to allow an ad which contained the text of the Ten Commandments.
School officials claim that such an ad would have them establishing
religion, in violation of the First Amendment. Edward DiLoreto,
the construction executive who sought to buy the offending ad,
believes the school's refusal to allow his display of the Ten
Commandments violates his First Amendment Right of free school
by censoring his speech in a public forum based on its content.
The Ninth Circuit sided with the school district. Mr. DiLoreto
will likely seek review in the U.S. Supreme Court.
- Since 1990, Texas has required high school students to pass
an exit examination as a condition of receiving their diplomas.
Following approximately five weeks of trial, the U.S. District
Cout in San Antonio rejected a lawsuit claiming the exam is impropertly
discriminatory merely because minority students tend to fare less
well on the exam than their white classmates. State officials
stress that the disparity in performance is attributable to societal
factors, and that the gap between minority and white students
- Two new studies have documented a strong anti-firearms bias
in the national media. According to a Jeff Jacoby report, Brian
Patrick of the University of Michigan used 16 different categories
of bias, and concluded that the national print media provide heavily
slanted coverage of the gun control issue.
- Similarly, the Media Research Center found a very heavy slant
in favor of gun control the major television networks. For the
complete report, see http://www.mrc.org/specialreports/news/sr20000105.html
- The end of affirmative action at the University of California
has not, as some had feared, dissuaded minority high schools students
from seeking admission. For example, Latino and black applications
to the University's Berkeley campus increased by 20% and 9.7%,
respectively, compared to 7.3% and 0.8% increases in applications
from Asians and whites, respectively. University officials attribute
the numbers to increased outreach efforts.