November 5, 2001

• According to the latest issue of "Call to Justice," an Open Society Institute grant is enabling the Lawyers' Committee for Civil Rights Under Law to develop a civil rights litigation support Web site to provide legal resources to plaintiffs' and pro bono attorneys engaged in civil rights jurisprudence. This site will be integrated into the probono.net site, which contains varioous pro bono opportunities in areas such as asylum, death penalty, family justice, disability law, and community development. The litigation support Web site will include a brief bank, research memorandums, and other relevant documents to litigation civil rights cases. It will be accessible to civil rights litigators, including staff lawyers within civil rights groups, plaintiffs' attorneys, and pro bono attorneys. Passwords to access the site will be accessible from the Lawyers' Committee for Civil Rights Web Counsel for Legal Information.

October 17, 2001

• For the first time in history, a federal court of appeals has unambiguously held that the right to keep and bear arms belongs to individual citizens, and rejected the judicially regnant theory that Second Amendment rights belong to governments or can only be exercised in the service of a government.

  The case arose when Timothy Emerson was charged under a federal statute that imposed a firearms disability while he was subject to a state divorce court restraining order that forbade him to threaten or injure his wife. About two years ago, this prosecution was halted by a federal
  district court in Texas, who ruled that it violated the Second Amendment. According to that court, the statute was unconstitutional as applied because the state divorce court judge had never made a finding that Emerson posed a threat to his wife; thus, there was no constitutionally adequate basis for depriving Emerson of his right to possess firearms.

  The Fifth Circuit has now reversed that decision, but only because the court of appeals concluded that Texas law required that such restraining orders issue only when there is a real threat of injury to the protected party (here, Emerson's wife). This requirement, the court held, provided an adequate (though probably a barely adequate) nexus between the firearms disability and the government's interest in preventing lawless violence.

  The significance of the case lies in the court's exceptionally thorough analysis of the meaning of the Second Amendment; in its express and unambiguous rejection of the theory-which has long been the law in almost all the other circuits-under which the right to keep and bear arms is a "collective right" that American citizens cannot exercise without the government's permission; and in its apparent use of heightened scrutiny in reviewing the constitutionality of the challenged statute.
  
  To read the opinion, click HERE.

October 4, 2001

• The U.S. Justice Department dropped its support of a lawsuit brought by women who said SEPTA's running test for its police - which requires that they meet a stricter standard than the FBI and Secret Service have - was unfair to female applicants. Transit police applicants filed the suit four years ago, and it twice reached federal appeals court. For more information, see:
  http://inq.philly.com/content/inquirer/2001/10/02/local_news/03WOMEN.htm
  
• The Supreme Court denied review in Brown v. City of Oneonta. In 1992, After an elderly woman said she was attacked by a black male, police in Oneonta, N.Y., requested the names of all black students at the nearby state university and questioned or stopped more than 300 black males. State officials subsequently apologized for the incident, but some of the students sued. Lower courts said the searches did not violate constitutional guarantees of equal protection of the laws. For more details, CLICK HERE.
  

September 13, 2001

• This past August, the Eleventh Circuit Court of Appeals dealt racial preferences another setback, possibly setting up a Supreme Court showdown. In Johnson v. Board of Regents of University of Georgia, the court held that the University of Georgia’s affirmative action plan was not narrowly tailored because it had mechanically awarded bonus points on the basis of the applicant’s race. It, however, expressly declined to answer whether or not racial diversity can serve as a compelling interest. The opinion, written by Judge Marcus, is notable for its careful reading of the seminal case of Regents of University of California v. Bakke. First, it said that the concept of diversity must encompass more than just race. As the court put it, “a white applicant from a disadvantaged rural area in Appalachia may well have more to offer a Georgia public university such as UGA -- from the standpoint of diversity -- than a non-white applicant from an affluent family and a suburban Atlanta high school.” Second, the Eleventh Circuit followed the Fifth Circuit’s Hopwood opinion in noting that only Justice Powell had subscribed to the view that racial diversity is a compelling interest. The Eleventh Circuit held that this is an open question that the Supreme Court should resolve. If this case is any indication of the future, it might be high noon for affirmative action at the high court.
  

August 31, 2001

• Nearly five years after Californians passed Proposition 209 to end race and gender preferences in government employment and contracting, a legal trench warfare continues over just what that vote meant. The ballot measure's authors envisioned a colorblind government that would not classify individuals by race or gender when deciding whom to hire or which companies should get government contracts. It is every bit as discriminatory, they argued, to give a job to someone because he is black or she is female as it would be to deny either one an opportunity for the same reasons. For more on this story, visit http://www.sacbee.com/voices/news/old/voices04_20010823.html
  
• In a case with important implications for consent decrees involving racial and gender preferences, a federal appeals court ruled this month that New York City school custodians be allowed to challenge preferential employment and hiring policies for female and minority custodians. The custodians will argue that the preferences, which are part of a consent decree, are unwarranted and result in discrimination against whites and males in violation of the Constitution’s equal protection clause and federal civil rights laws. The case, Brennan v. New York City Board of Education, began with a lawsuit brought by the Clinton Justice Department, charging that the Board of Education’s practices and civil service exams had a discriminatory impact on recruitment, hiring, and promotion of female and minority custodians and custodian engineers. A settlement agreement resulted, in which the Board was to give women and minorities retroactive seniority, as well as preferences in promotions and test preparation. Despite more than 300 objections, a federal district court accepted the agreement after denying a request by three white male custodians to intervene in the suit. The three custodians, represented by CIR, appealed to the U.S. Court of Appeals for the Second Circuit. This month, the Second Circuit reversed the denial of intervention, noting that "the entire burden of the settlement ... is upon individuals like appellants." The appeals court remanded the entire case back to the district court, ruling that the three custodians must be allowed "an opportunity for discovery and the presentation of evidence as a party to the action." On remand, the custodians will show that neither New York City nor the U.S. identified any specific discriminatory recruiting practices, nor alleged intentional discrimination of any kind. Instead, the allegations use factors such as poor minority performance on the exams and a lack of female job applicants as supposed evidence of discriminatory impact. Such factors alone provide no legal justification for discrimination against whites and males, so the custodians will ask the court to rescind its consent decree and reject the preferences.

July 3, 2001

• AMICUS BRIEF OF THE CENTER FOR EQUAL OPPORTUNITY, THE AMERICAN CIVIL RIGHTS INSTITUTE, and THE INDEPENDENT WOMEN’S FORUM, Brief in Support of Plaintiff/Appellee Barbara Grutter Supporting Affirmance of the Judgment of the United States District Court for the Eastern District of Michigan, Grutter v. Bollinger

May 23, 2001

• In "Pistol Whipped: Baseless Lawsuits, Foolish Laws," Cato Institute Senior Fellow Robert Levy makes the argument: "Although Congress and the majority of state legislatures have resisted enacting draconian gun control laws, the courts are the final bulwark in safeguarding our constitutional right to keep and bear arms. Yet the courts of late have been the scene of unprecedented attacks on that right as gun control advocates have used the judiciary to make an end-run around the legislative process. Meritless litigation brought by government plaintiffs in multiple jurisdictions are just part of a scheme to force gun makers to adopt policies that legislatures have wisely rejected. Moreover, the suits are used by politicians to reward their allies—private attorneys, many of whom are major campaign contributors—with lucrative contingency fee contracts." See http://www.cato.org/pubs/pas/pa-400es.html for the full report.
• In the Spring 2001 issue of "City Journal," Heather Mac Donald writes on "The Myth of Racial Profiling." She writes, "There's no credible evidence that racial profiling exists, yet the crusade to abolish it threatens a decade's worth of crime-fighting success." See http://www.city-journal.org/html/11_2_the_myth.html

April 11, 2001

• Ruling Against Men’s Teams at Miami of Ohio Contains Good News As Well
  A federal judge ruled in January that Miami University did not violate the law when it eliminated three men’s teams in April 1999, in order to fulfill athletic gender quotas. The quotas require proportionality – that is, equal male and female participation rates in intercollegiate athletics – and arise from an interpretation of Title IX pressed by the Clinton Education Department. But U.S. District Court Judge Sandra Beckwith also ruled that the achievement of proportionality eliminates any alleged effects of past discrimination against women, at which point quotas are no longer required, and team selection "based solely upon the relative interests and abilities of students is desirable." This aspect of the decision was seen as good news for male athletes at the nation’s universities, which have effectively been prohibited from considering any differences in male and female interests levels. Judge Beckwith’s decision in Miami University Wrestling Club v. Miami University arises from a November, 1999 lawsuit by former members of Miami’s disbanded wrestling, tennis, and soccer teams. The athletes sued because they were prohibited from participating in varsity sports solely because they were men. They allege this discrimination violates their rights under both the Constitution and Title IX, a federal civil rights statute which states that no person shall "be excluded from participation" based on sex. Judge Beckwith’s decision, which granted summary judgment to the University, found otherwise. The athletes will likely appeal the decision to the U.S. Court of Appeals for the Sixth Circuit.

April 6, 2001

• MICHIGAN LAW SCHOOL DENIED RELIEF FROM INJUNCTION
  Having held the University of Michigan Law School’s racial preferences unconstitutional, a federal judge denied the University’s request to stay the injunction barring racial preferences pending appeal: "Defendants are not irreparably harmed by an injunction that requires them to comply with the Constitution."
• UNIVERSITY OF MARYLAND MEDICAL SCHOOL ENGAGES RACIAL PREFERENCES
  A new study released by the Center for Equal Opportunity, based on data gleaned through litigation, reveals that the University of Maryland Medical School uses significant racial preferences in favor of black applicants, to the detriment of more qualified Asian and white applicants. http://www.nationalreview.com/contributors/clegg040301.shtml
• SCHOOL CHOICE ADVANCES IN ILLINOIS
  For the second time in two months, an appellate court in Illinois has upheld that state’s provision of an education tax credit to parents. The constitutionality of the tax credit had been challenged by the Illinois Federation of Teachers. The teachers' union had argued that the law, which provides a credit against state income taxes for 25 percent of tuition, book fees or lab fees incurred by K-12 students at public or private schools up to a maximum of $500 per family, violated two provisions of the Illinois Constitution, dealing with the establishment of religion. The opinion written by Justice Philip J. Rarick emphasized two key points. First, the court concluded that "[t]he credit at issue here does not involve any appropriation or use of public funds." Rather, the court pointed out that the credit "allows Illinois parents to keep more of their own money to spend on the education of their children as they see fit." The court also concluded that the credit did not have the primary effect of advancing religion because it is "equally available to all parents of public or nonpublic school children" and "[f]unds become available to schools only as the result of private choices made by individual parents."
• COLORADO JUDGE INSTITUTES RACE-BASED CLERKSHIP
  Colorado Fourth District Judge Theresa Cisneros, Chairperson of the El Paso County Bar Association’s Diversity Committee, has stated her intention to consider only black applicants for two summer judicial clerkships. Applicants will be screened by the Sachs Foundation, sponsor of the clerkships. The Sachs Foundation determines who is, and is not, an African American, as follows: "We consider a person to be an African-American - if they are a member of the African-American race. Applicants with mixed racial and ethnic backgrounds must demonstrate their racial identity to be predominantly African-American and the Trustees will interview and make a determination as to qualification in those cases which are uncertain. Information as to philosophy, commitment to the African-American race and self-identify may also be considered in such cases." http://www.frii.com/~sachs/back.htm. A critique of this practice may be found here. http://frontpagemag.com/archives/racerelations/trapp03-30-01.htm
• MINORITY ENROLLMENT RISING AT UNIVERSITY OF CALIFORNIA
  In the wake of prohibitions of racial preferences at the University of California, enrollment of black and hispanic students continues to rise under a program admitting the top 4% of California high school students. Figures from the entering 2001 freshman class reveal "under-represented" minority enrollment has climbed for the fourth year in a row, nearing levels not seen since the days of racial preferences. While minority enrollment has declined at the university’s top Berkeley and Los Angeles campuses, overall minority enrollment has surged throughout the nine campus system.
• SAN DIEGO BANS USE OF WORD "MINORITY"
  The San Diego City Council has forbidden the use of the word "minority" in official discussions and city documents.
• APPEALS COURT MAY REHEAR KEY RACIAL PREFERENCES CASE
  The full U.S. Court of Appeals for the Ninth Circuit may reconsider a key question in the national debate over affirmative action, namely whether attainment of a diverse student body can justify reverse racial discrimination. The question arises in Smith v. University of Washington Law School, CIR’s lawsuit challenging the constitutionality of the Law School’s minority admissions preferences. In December, a three-judge panel of the Ninth Circuit ruled in the case that diversity can justify racial preferences. However, in an unusual move, the court directed the parties to file briefs on whether the case should be reheard by the full Ninth Circuit. CIR urged the court to rehear the case, while the Law School opposed the en banc rehearing. Katuria Smith and the two other white plaintiffs in the case were rejected by the Law School after being subjected to more rigorous admissions standards than those applied to minority applicants. The school claims that the resulting reverse discrimination is constitutionally permissible, because it was used to achieve a diverse student body, a rationale based on Supreme Court Justice Lewis Powell’s lone 1978 opinion in Regents of the University of California v. Bakke. But CIR notes that a majority of the Supreme Court has never supported this rationale and that recent Supreme Court precedent points towards the opposite conclusion. Indeed, the three-judge panel acknowledged that "the Court has not looked upon race-based factors with much favor." If the panel’s ruling on diversity stands, the suit will proceed to trial on the issue of whether the Law School’s racial preferences comply with Justice Powell’s standard, which forbids racial balancing, but allows race to be used as one of many factors designed to achieve a broad type of diversity. The plaintiffs also urged the Ninth Circuit to revisit two other rulings by the panel. One is a decision that Washington State’s voter initiative banning racial preferences mooted the plaintiffs’ request for an injunction against future discrimination. The other upheld decertification of the lawsuit as a class action, based on the mootness ruling.
• RULING AGAINST MEN’S TEAMS AT MIAMI OF OHIO CONTAINS GOOD NEWS AS WELL
  A federal judge ruled in January that Miami University did not violate the law when it eliminated three men’s teams in April, 1999, in order to fulfill athletic gender quotas. The quotas require proportionality – that is, equal male and female participation rates in intercollegiate athletics - and arise from an interpretation of Title IX pressed by the Clinton Education Department. But U.S. District Court Judge Sandra Beckwith also ruled that the achievement of proportionality eliminates any alleged effects of past discrimination against women, at which point quotas are no longer required, and team selection "based solely upon the relative interests and abilities of students is desirable." This aspect of the decision was seen as good news for male athletes at the nation’s universities, which have effectively been prohibited from considering any differences in male and female interests levels. Judge Beckwith’s decision in Miami University Wrestling Club v. Miami University arises from a November, 1999 lawsuit by former members of Miami’s disbanded wrestling, tennis, and soccer teams. The athletes, represented by CIR and Furnier & Thomas of Cincinnati, sued because they were prohibited from participating in varsity sports solely because they were men. They allege this discrimination violates their rights under both the Constitution and Title IX, a federal civil rights statute which states that no person shall "be excluded from participation" based on sex. Judge Beckwith’s decision, which granted summary judgment to the University, found otherwise. The athletes will likely appeal the decision to the U.S. Court of Appeals for the Sixth Circuit. March 28, 2001 A federal judge in Detroit ruled yesterday that the race-conscious admissions system of the University of Michigan's law school is unconstitutional, contradicting a December ruling in a parallel case that upheld the university's affirmative action policy for undergraduate admissions.

March 7, 2001

• University of Alabama at Birmingham Board of Trustees, et al. v. Patricia Garrett, et. al.,
  On February 21, 2001 the United States Supreme Court decided the consolidated Americans with Disabilities Act (ADA) cases filed by two state employees against the State of Alabama. A registered nurse, Patricia Garrett, and a security officer, Milton Ash, alleged violations of the ADA because the state employer would not accommodate their disabilities. Alabama argued that it should be immune from such suits, and while the District Court agreed, the Court of Appeals for the Eleventh Circuit reversed this decision. Following a familiar five-to-four split decision pattern, the United States Supreme Court reversed and held that the Eleventh Amendment barred state employees from suing a state employer for damages under Title I of the ADA. The Chief Justice’s majority opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Kennedy, joined by Justice O’Connor, also filed a concurring opinion. Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg joined Justice Breyer's dissenting opinion. The Court declined to consider the Title II claims (relating to access to programs). The Court found that the Eleventh Amendment barred these claims for monetary damages because Congress lacked the power to create substantive rights pursuant to the Fourteenth Amendment. Rather, Congress could enact remedial legislation that prohibited otherwise lawful state conduct only where there was pattern of constitutional violations by the states. The ADA’s legislative record failed to establish such a pattern. In effect, the Court ruled that the instances of discrimination were not sufficiently numerous to constitute a "pattern" of conduct by the states. Thus the Court did not reach the issue of whether the particular discriminatory acts in the legislative record arose to the level of "irrational" discrimination precluded by the Cleburne decision. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (holding that legislation that discriminates against the disabled must meet "rational basis" review). The Court’s ruling was limited to the portion of the ADA requiring employers to make "reasonable accommodations" for disabled employees, but may foreshadow future decisions regarding accessibility of government services and programs. Title II claimants will find it difficult, in light of Garrett, to show that Congress had an adequate record of a pattern of constitutional violations by the states against the disabled. This ruling continues a trend in recent Supreme Court Eleventh Amendment decisions limiting the power to Congress to create substantive rights pursuant to its powers under Section 5 of the Fourteenth Amendment.