No Caste Here? Toward a Structural Critique of American Education

In his famous dissent in Plessy v. Ferguson, Justice John Marshall Harlan argued that in the United States, there was “no caste here.” Justice Harlan was rejecting the idea that American society operated to assign preordained outcomes to individuals based upon classifications, including racial classifications. This Article questions whether Justice Harlan’s aspirational assertion accurately reflects contemporary American education. Identifying: (1) multiple classification mechanisms, all of which have disproportionate racial effects, and (2) structural legal, political, and practical impediments to reform, the Article argues that the American education system does more to maintain the nation’s historical racial hierarchy than to disrupt it. This is so, the Article suggests, despite popular agreement with the casteless ideal and popular belief that education can provide the opportunity to transcend social class. By building the framework for a broad structural critique, the Article suggests that a failure to acknowledge and address structural flaws will preclude successful comprehensive reform with more equitable outcomes.

This article appeared in the Penn State Law Review.  The full article is available here.

The Endangered School District

The Endangered School District: The Promise and Challenge of Redistributing Control of Public Education

Abstract: One constant in American public education reform has been the existence of a single local entity – the school district – with operational responsibility. In some places, that is changing. Fueled by undercurrents in education reform such as the embrace of broader school choice and an increase in state involvement in local education, as well as federal political alignment supporting these undercurrents, some communities are embracing a radical structural reform that redistributes operational control across a series – or portfolio – of autonomous entities.

In such communities – typically large, urban school systems serving a student population that is largely poor and made up of minority students – the term “district” no longer applies. The broad, district-wide authority of a school board and superintendent is being dispersed to a variety of operators, including state education departments, private (i.e., charter school) operators, and the preexisting district itself. Each operator enjoys substantial or even total independence from other operators, generating an autonomy that has not existed within the traditional district structure.

The Endangered School District describes the causes and ramifications of such a substantial departure from the traditional district model and offers case studies from two communities – New Orleans, LA, and Memphis/Shelby County, TN – at the epicenter of urban education reform. Building on scholarship evaluating the theory of expanded school choice and operational autonomy, these case studies help demonstrate the practical challenges of applying these theories beyond isolated schools to entire educational communities.

There is great disagreement about the wisdom of transitioning toward a portfolio model for public education. The Endangered School District simply accepts the development as the emerging trend that it is and offers insight from two communities for making the most of such a radical structural change.

First, the article describes the undercurrents that are enabling the portfolio strategy and the ramifications – administrative, legal and philosophical – of moving away from the traditional district model. After introducing the case studies, the article next examines the respective new models in depth in order to evaluate whether either can deliver as a strategy to increase educational opportunities for students. Specifically, the article identifies the dangers that these structural reforms may simply reorganize the stratified educational systems they seek to eliminate or that they may not be financially, legally, or politically sustainable over time and on such a large scale. Rather than merely identifying these challenges, the article then goes on to identify legal structures – such as state laws or bilateral agreements between public school authorizers and public school operators or even among operators themselves – that can help minimize these risks.

This article appeared in the Boston University Public Interest Law Journal.  The full article is available here.

A Memphis Dilemma

A Memphis Dilemma: A Half-Century of Education in Memphis and Shelby County from Desegregation to Consolidation

Abstract: On May 17, 1954, the day that the Supreme Court handed down Brown v. Board of Education, essentially four separate school systems existed within the borders of Shelby County, Tennessee. Memphis City Schools (MCS) served students within the city limits, and Shelby County Schools (SCS) served the balance of students in the county; within each system were white schools and black schools. The next several decades saw the two districts grapple with implementation of the Supreme Court mandate to remove the vestiges of segregation from public education.

By 2010, both districts had achieved unitary status, freeing them from court supervision and adherence to judicially approved desegregation plans. However, there remained a sense in the community that public education remained very much separate - and that there was a continued racial component to that separation. Indeed, the demographics of the two districts supported this perception. Of the 100,000 students in MCS, nearly 90% were African American. Meanwhile, the majority of the county’s white students were learning in SCS. Coupling these demographic differences with the fact that the county schools performed better educationally, on average, by state accountability standards and the claims of separate, unequal schooling no different than what was confronted in Brown seemed even more legitimate.

This article appeared in the University of Memphis Law Review.  The full article is available here.

Accepting Justice Kennedy's Dare

Accepting Justice Kennedy's Dare: The Future of Integration in a Post-PICS World

Abstract: In the wake of the most important public schools case in decades, Parents Involved in Community Schools (PICS), the future of diversity in public schools is in doubt. This period of uncertainty comes at a moment when parents, educators, and employers are demanding high quality schools that prepare students for an increasingly globalized world. Justice Anthony Kennedy, in his PICS concurrence, recognized this and challenged districts to continue the important work of bringing different students together without resorting to unconstitutional means. Filling the void between what is essential to public education and what is constitutionally permissible after PICS, the public schools of Jefferson County (Louisville), Kentucky, one of the districts rebuked in PICS, have accepted Justice Kennedy’s dare by crafting a nuanced and race-conscious student assignment plan aimed at promoting broadly-defined diversity and increasing the quality of education across the district.

The article argues two distinct points. First, it argues that the new plan is a constitutionally permissible response to PICS. Second, it argues that the new plan’s broadening of both the definition of diversity and the mission of a school district represents the beginning of a new post-Brown era that is responsive to the realities of public education in the 21st century. By tethering its analysis of PICS - and specifically of Justice Kennedy’s concurrence - to a specific response to that decision, the article provides a detailed analysis of the new constitutional framework in this area. Ultimately, the article argues that because it is both constitutional and educationally-relevant, the new plan represents the future of integration for any district willing to make the commitment to providing the educational benefits of diverse public schools to its students.

This article appeared in the Fordham Law Review.  The full article is available here.

Supreme Court Notebook - Snyder v. Louisiana

In 1879, the Supreme Court heard a case regarding the murder trial of a former slave. The jury for that trial was, predictably and by law, made up entirely of white men. The defendant was convicted and sentenced to death. The Supreme Court was charged with interpreting the constitutional amendments adopted in the wake of the Civil War to determine whether American citizens, including emancipated slaves, had a right to a trial with a jury untainted by racial discrimination.

Justice William Strong answered with a rhetorical question: “How can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal protection?”

On the grounds that the state had impermissibly excluded black citizens from serving on juries, the Court vacated the defendant’s conviction and remanded the case.

Fast forward nearly 130 years from that step forward for civil rights – a time period that has included many steps forward in American race relations. Last week, the Supreme Court offered up evidence that steps forward in American race relations are small and often followed by steps back. See if this sounds familiar.

In 2008, the Supreme Court heard a case regarding the murder trial of an AfricanAmerican. The jury for that trial – in Louisiana, a state that is more than 30% African American – did not include any African Americans, the prosecutor having eliminated through peremptory challenge all African Americans in the final jury pool. The defendant was convicted and sentenced to death. The Supreme Court was charged with determining whether the prosecutor’s conduct showed impermissible discriminatory intent.

Obviously, the two cases are different – one is a challenge to a deliberately discriminatory state law, the other a challenge to an arguably discriminatory state prosecutor – but there were sufficient echoes in the contemporary case to give even today’s conservative Supreme Court pause.

Writing for a 7-2 majority, Justice Samuel Alito described the prosecutor’s allegedly non-racial reasons for dismissing one of the potential African American jurors as “suspicious.” The prosecutor’s non-racial explanation for the dismissal of that juror, a college student concerned about missing too much school, was that he looked nervous and might be eager to end the deliberations quickly by pushing for the defendant’s acquittal or conviction for a lesser crime so that he could back to school. To ease the prosecutor’s – and the juror’s – concern, the trial court contacted the juror’s dean who assured them that if the student were away only a week – as anticipated by the prosecutor himself – then jury service would not be a problem. The prosecutor was unconvinced and struck the juror.

What made this conduct “suspicious” to Justice Alito was that the prosecutor did not show similar concern for potential white jurors who likewise expressed the desire to avoid prolonged absence from employment or other responsibilities. The prosecutor’s “pretextual explanation naturally gives rise to an inference of discriminatory intent,” Alito wrote, concluding that the trial court committed a clear error in allowing the student to be dismissed.

Comparing these two cases, there are signs both of the significant progress that has been made on the race front and of the often subtle ways the race problem continues to manifest itself today. No longer are there state laws that exclude entire classes of citizens from the full benefits of citizenship, yet there remain juries without black members that convict black defendants. No longer must the Supreme Court deem obviously discriminatory conduct to be against the Constitution, yet the Court continues to confront cases of less blatant, though no less pernicious, discrimination.

In 2008, no less so than in 1879, courts and citizens alike continue the project of, as Justice Strong wrote in the 19^th century, “securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.”

Don't take my word for it - read the cases yourself.....

Strauder v. West Virginia – 100 U.S. 303 (1879)

Snyder v. Louisiana – 552 U.S. ___ (2008)

Ruling Can Light Way to Better Schools

When U.S. Dist. Judge Bernice Donald concluded last month that the Shelby County Schools district has not yet overcome the relics of segregation, the stunned reaction from school officials was unequivocal.

"Certainly we are disappointed by the ruling," said school board chairman David Pickler.

"It could have some very dramatic negative effects on the children of Shelby County," school attorney Rick Winchester added. Winchester went on to suggest that Donald's ruling could mean that education dollars would be diverted to busing and moving children to schools farther from their neighborhoods.

This practice of crying "bus" is a disservice to those the county schools serve and a distraction from what ought to be the goal of all parties involved -- providing the highest quality education to all Shelby County students. Compliance with Donald's ruling is -- forgive me -- not so black and white as the school officials seem to suggest.

Busing is not the only way for a school district to become unitary, and among the potential solutions, busing is probably the least appealing. Rather than frightening parents by alluding to the possibility of busing, school officials would do well to think outside of the busing box for creative ways to increase both the diversity and the educational quality in the Shelby County Schools. Where Winchester sees in the ruling the possibility of "dramatic negative effects," I see an unprecedented opportunity for Shelby County Schools to become a national model for equity and excellence in education.

Donald wrote that the true goal of any school desegregation plan is to provide equal educational opportunity to all students by eliminating racial isolation. For decades, as districts across the country were forced to comply with the mandate of Brown v. Board of Education, the focus was on the elimination of racial isolation. Educational considerations were too often only secondary considerations.

In the 1960s and '70s, eliminating legally sanctioned racial separation was very important. But in 2007, with the benefit of a half-century of hindsight, districts like Shelby County have the opportunity to move beyond simplistic solutions such as busing and implement desegregation plans that embrace both the educational and the social ideals of Brown.

Using a combination of neighborhood schools with carefully drawn attendance zones, magnet schools that provide a variety of educational choices for parents, and lenient transfer policies combined with racial targets similar to those in Donald's ruling, districts across the country have achieved increased diversity by lifting the quality of all schools. In some instances, transportation is necessary, but it is far easier to convince a parent to accept busing when his or her child will be bused voluntarily to an exceptional school than when the child will be bused across town to a school no better, or worse, than the neighborhood school.

There is no reason to think the county schools cannot come up with a similar plan tailored to Shelby County in response to Donald's ruling. Devising such a plan is far more difficult than simply imposing busing, but county school officials need look no further than the Memphis City Schools to see the devastating effects busing can have on a district. The challenge is for school officials to resist the temptation to defensively use the threat of busing to criticize Donald's ruling and instead to develop a thoughtful, multifaceted desegregation plan that creates a world-class school district.

"In those instances where the Board adopted the Court's goal as its own," Donald wrote, "it has progressed with remarkable speed." The district should not miss this opportunity to adopt the goal of improving education across the system while eliminating instances of racial isolation. The initial signs of such adoption are not positive -- the board has already said it will appeal Donald's ruling -- but if the district does embrace the spirit of the ruling, there is no reason it should not progress with remarkable speed.

Supreme Court Notebook - Ledbetter

How much do you know about the salaries of your coworkers? Talking among peers about compensation is always a little awkward and one-third of private employers actually prohibit such discussions of wages. The odds are that unless you are in charge, in the payroll department, or downright nosy, you probably don't know much about the compensation of your coworkers. This would make it nearly impossible for you to discover -- especially within 180 days of the time your pay is set -- that you are a victim of pay discrimination. Yet last week, the Supreme Court ruled that pay discrimination claims not brought within 180 days of setting the discriminatory salary are time barred. Unless you are nosy, you're out of luck.

The case, Ledbetter v. Goodyear Tire and Rubber Company, was brought by the only female supervisor at a Goodyear tire plant in Alabama. Ms. Ledbetter discovered late into her twenty year career at Goodyear that the salaries of males in the same position as her were higher -- the lowest paid man was paid $4,286 a month while Ms. Ledbetter earned only $3,727. In the trial court, Ms. Ledbetter was awarded $360,000 in back pay and compensatory and punitive damages, but that award was erased on appeal. Last week, the Supreme Court agreed with the appeals court, holding that Ms. Ledbetter brought her claim too late.

The law states that in order to bring an employment discrimination claim, the plaintiff must show that she suffered an "unlawful employment practice" in the 180 days prior to filing her complaint. Until last week's ruling, the Equal Employment Opportunity Commission operated under the theory that each paycheck distribution that reflected the discriminatory pay constituted a new "unlawful employment practice" that retriggered the 180 day clock. The Supreme Court, voting 5-4, disagreed.

Justice Ginsburg, notably the only woman on the Supreme Court (and someone who is paid the same amount as her male colleagues), read a blistering dissent from the bench. Justice Ginsburg wrote that even though Ms. Ledbetter had established that discrimination (as opposed to performance inadequacies) accounted for the pay differential, the Court's ruling "grandfathered" such discrimination in. "The unlawful practice," she wrote, "is the current payment of salaries infected by gender-based discrimination -- a practice that occurs whenever a paycheck delivers less to a woman than to a similarly-situated man."

I am not the first to criticize this decision and Senator Hillary Clinton has already pledged to introduce legislation that would render the decision moot. But it is disturbing that five members of the Supreme Court, including President Bush's two appointees, could be this out of touch with the purpose of discrimination laws. The world the Ledbetter opinion would create is one in which it is illegal to discriminate in pay based on gender, but only for the first 180 days after that pay is set. If an employer avoids a complaint during those first six months, the employer is free to discriminate for the rest of an employee's career.

The Supreme Court would dispute this characterization. They would argue that this is not so much a case about pay discrimination as it is about statutory construction. A theme of the more conservative members of the court -- including Justice Alito in this case -- is that it is not the Supreme Court's job to set public policy, but to interpret the law by strictly adhering to legislative text. The Bush Administration, however, who weighed in against the EEOC's interpretation, was singularly concerned with setting policy and the Supreme Court delivered precisely the policy the Administration sought. Even if the message the Supreme Court claims to have sent is "draft clearer legislation," the message they actually sent is "employers are free to discriminate if they are not caught in the first 180 days."

The advice to Americans is clear. For those beginning new jobs in the future, it would be wise on the first day to shake your coworkers' hands with the question, "And how much are you paid?" This will not only make you popular around the office, but if you do otherwise, the Supreme Court has ruled, you may simply be out of luck down the road.

Justice Being Served?

In American mythology, the part of Justice is often played by a blindfolded woman weighing competing evidence dispassionately. She is to reach her just conclusions without regard to the way an individual looks or what that individual thinks or which party that individual votes for.

At the Department of Justice, the blindfold has apparently been removed.

The recent firing of eight US Attorneys for what appear to be partisan purposes has led to an outright Washington scandal, complete with hearings and testimony and subpoenas. However, the US Attorney firings were merely a continuation of the practice of politicizing the Department of Justice that began the moment the Bush Administration – and with it, Attorney General John Ashcroft – took office.

DOJ is headed by political appointees, like Ashcroft, who serve at the pleasure of the President. These individuals set larger policies to ensure that the DOJ functions as part of the larger presidential administration but typically do not direct the thousands of cases being pursued by DOJ at any time. That task is left to the roughly 300 career attorneys who serve in DOJ regardless of who is in the White House. Through Republican and Democratic administrations past, there has been a mutual respect, if not always agreement, between the political appointees and the career attorneys.

By many accounts, that respect disappeared when the Bush Administration began shaping its Department of Justice, most significantly in the DOJ’s Civil Rights Division. The mandate of the Civil Rights Division is to enforce the nation’s civil rights laws, whether by suing an employer for a pattern or practice of employment discrimination or enforcing voting rights laws against a state that is disenfranchising minority voters. Through changes in the procedures for hiring new attorneys and shifts in the types of cases it undertakes, the Bush/Ashcroft/Gonzales DOJ has transformed the Civil Rights Division into a partisan tool.

Prior to 2001, job applicants would be hired by career attorneys subject to approval from the political appointees. Under Ashcroft, this practice was abolished in 2003 as career attorneys were removed from the hiring process completely. The results were predictable. According to the Boston Globe, only 42% of the career attorneys hired in the two years after 2003 had civil rights litigation experience, compared to 77% in the two years prior. In addition, of those 42% who had civil rights experience, half had gained it by defending employers against discrimination or arguing against affirmative action policies.

Similarly, the perspective of the career attorneys has been minimized in selecting the cases and positions taken by the Department. Despite career attorneys’ recommendations to the contrary, the DOJ has come out in favor of redistricting efforts in Mississippi and Texas that have benefited Republican candidates and recommended approval of a Georgia voter identification law that the career attorneys concluded would disenfranchise minority voters. The number of enforcement actions being brought for employment and voting discrimination is down, while the number of cases brought on the theory of “viewpoint discrimination” (i.e., cases claiming discrimination on the basis of religious beliefs) is up.

Career attorneys have been resigning in protest of these policy shifts throughout the Bush reign, but are only now gaining an audience in Congress. Last month, a House Judiciary subcommittee held hearings on the Civil Rights Division. At the hearing, Joe Rich, a 37-year veteran and a former chief of the Voting Rights Section in the Civil Rights Division who left in protest in 2005 testified that “the political decision-making process that led to the questionable dismissal of eight United States Attorneys was standard practice in the Civil Rights Division years before these recent revelations.”

In this context, the firing of US Attorneys who were reluctant to pursue a partisan agenda makes perfect sense. This Administration has never made it the goal of the DOJ to pursue justice, but has used the Department as part of a larger effort to create a permanent Republican majority. Only time will tell if it has succeeded in permanently removing the blindfold from DOJ.

Life and Death

I heard the news only hours after I left the courtroom following a hearing on whether my client, a death row inmate, could obtain DNA testing to corroborate his story of innocence. Tennessee Governor Phil Bredesen had issued a three-month moratorium on executions in Tennessee. I was at once relieved for my client, whose execution is now pushed back indefinitely, and pleased to see Tennessee join the growing number of states grappling to find the most appropriate way to impose the death penalty.

Although Governor Bredesen’s order offers hope for death penalty opponents, it certainly does not end the practice. In the very second sentence of his press conference announcing the moratorium, Bredesen proclaimed himself “a supporter of the death penalty” even as his executive order called into question the procedures for carrying it out. The executive order charges the Commissioner of Corrections with undertaking a comprehensive review of how the state carries out executions. Specifically, the review is to look at the actual administration of the death sentence – the lethal injection procedures and protocol – to ensure that Tennessee’s practice is consistent with moral and legal norms.

The action in Tennessee is part of what seems to be a quickly-expanding nationwide second look at the death penalty. In 1976, the US Supreme Court ruled that the death penalty was not cruel and unusual punishment, but in the last several years, several states have begun to reconsider whether that is the case. Both Florida and California are undergoing reviews of execution procedures similar to that ordered in Tennessee, but several other states have gone even further. In New York, the state’s highest court ruled the death penalty statute unconstitutional. In New Jersey, a commission recently recommended halting the practice, and the governor of Illinois commuted the sentences of all of that state’s death row inmates in 2003.

The driving force behind much of this review is the deeply felt need to get it right with the death penalty. In an age where DNA and other means have been used to exonerate several death row inmates, it is clear that the possibility of executing innocent individuals is very real. Governor Bredesen’s order is essentially an order to make sure Tennessee is getting it right when it comes to the actual administration of the death sentence.

However, there are numerous opportunities to go wrong before an inmate ever reaches the death chamber. Beginning with the collection of evidence at the crime scene, to the prosecution’s discretion to choose which defendants face the death penalty, to the competence of defense attorneys to confront the prosecution’s evidence, to complicated and often vague jury instructions, through post-trial appeals and into the science behind lethal injections, there are countless opportunities for the human beings involved in death penalty practice to make mistakes. And as humans are wont to do, mistakes are made. These mistakes don’t mean that every death row defendant is innocent. They simply mean that no death row inmate was sentenced without the potential for error.

Are there crimes for which the perpetrator deserves to be put to death? Absolutely. However, the death penalty does not serve either deterrence or economic goals. It may provide some comfort to victims’ families, but even that must be diminished when the death occurs a quarter-century after the crime, as is typical. Just because some crimes and criminals deserve a penalty of death does not mean that we, as a society, should overlook the inevitable flaws in our system to impose it.

Governor Bredesen’s impulse for review is laudable, but the review he has ordered does not go far enough. Rather than only focusing on what occurs in the death chamber, the state would be better served by reevaluating death penalty administration from start to finish. In my mind, there is no way to devise a system, administered by human beings, for taking human lives without creating the potential for grave errors. In these matters of life and death, there is no room for error.

In Defense of Habeas Corpus

You have probably never heard of the Uighur population in northwestern China. Uighurs (pronounced wee-gur) are Muslim-Chinese more closely aligned, ethnically and geographically, to the Afghans and other Muslim communities in Central Asia than to their traditional Chinese countrymen. In the grand scheme of world politics, Uighurs are small-time players, known mostly for being persecuted and systematically transplanted from their resource-rich homes by ethnic Chinese.

In the midst of fighting the war on terror, the United States came across several Uighurs in Afghanistan. By some accounts, the Uighurs were in Afghanistan to train to fight against the Chinese. By others, the Uighurs were seeking a way out of Chinese persecution into a friendlier environment so they could send money back to their families. By no account were these Uighurs involved in Al Qaeda or any anti-American terrorist training. Still, nearly twenty Uighurs ended up in American military custody in Guantanamo Bay, having been sold for ransom by locals to American forces.

American intelligence knew early on that the Uighurs, like many of those initially imprisoned at Guantanamo, were of little or no value in the war on terror. When it came time for prisoners to have their status reviewed, a number of the Uighurs were declared No Longer Enemy Combatant (NLEC) by the military (a more accurate designation probably would have been Never Enemy Combatant in the First Place, but let’s not get hung up on semantics). The Uighurs, however, were never told of this designation of innocence and, instead of being released, remained behind bars at Guantanamo.

Beginning in the summer of 2005, a group of lawyers assumed representation of several of Guantanamo’s Uighurs without knowing any of this history. The first step was to file a writ of habeas corpus in federal court, asking the government to declare the charges against the Uighurs or release them. The government delayed. And delayed. Ultimately, the lawyers discovered that their clients had already been designated NLEC and immediately opened up a relentless campaign for release. The campaign was complicated because the government, to its credit, refused to send the Uighurs back to China for fear that they would be tortured there. Meanwhile, the Uighurs remained in prison as the government refused all requests for temporary or supervised release of these innocent individuals. The search for a country to take the innocent Uighurs finally ended a few months ago and now there is a very small population of Uighurs in Albania.

The Uighurs’ story is one of the importance of habeas corpus. Without lawyers making noise regarding the unjustified imprisonment of these individuals, it is likely that the Uighurs would have remained in prison even longer than the nearly five years they already spent at Guantanamo. Without the power to demand charges be brought, the lawyers would have been handcuffed, unable to force the government to end an indefinite and unjustified detention.

Last week, Congress passed the Military Commissions Act of 2006, a law directly aimed at legalizing many of the actions undertaken by the Bush administration in handling so-called enemy combatants – actions declared unconstitutional earlier this year by the Supreme Court. The law is a mixed bag. Although it does require American personnel to treat detainees in accordance with the Geneva Convention (read: no torture), it does away with many of the traditional procedural safeguards meant to ensure a fair trial and prevent the executive from running amok. One such safeguard that is done away with is the writ of habeas corpus.

Passage of the Military Commissions Act is undoubtedly a victory for the Bush administration – with congressional authority, the President stands on much firmer constitutional ground than he did when these practices were first reviewed by the Supreme Court. The law, in effect, puts executive action in this arena beyond the review of the courts. However, as the experience of the Uighurs at Guantanamo shows, sometimes the executive gets it wrong. Without the courts and the protection of habeas corpus, where is there to turn next time?

Supreme Court Notebook

When I began this column project, I promised to review interesting court cases to make complex decisions more understandable. When the Supreme Court this week issued its most interesting decision of the John Roberts era, I found my first opportunity.

If you’ve already heard about this case, you probably know it as the case that upheld Oregon’s assisted suicide law. The case, however, was not really about assisted suicide. Instead, the Court confronted whether the Justice Department had the right to unilaterally revoke licenses of doctors who had prescribed lethal doses of medicine under the Oregon law. The case was more about federal power than assisted suicide.

The Facts: In 1994, Oregon voters enacted the Death with Dignity Act, a highly-regulated scheme allowing terminally ill patients to request lethal doses of medication in extremely limited circumstances. After several attempts by the federal government to curtail the law failed to pass in Congress, then-Attorney General John Ashcroft announced in 2001 his intent to revoke the licenses of any doctor proscribing medication used in assisted suicide. Oregon immediately filed this suit.

The Ruling: Noting that Ashcroft had made his decision “without consulting Oregon or apparently anyone outside the Justice Department,” the Court voted 6-3 to prevent the doctors’ licenses from being revoked. Justice Kennedy wrote the majority decision and was apparently disturbed that an Attorney General with no medical expertise had taken it upon himself to determine for the nation what was to be considered a legitimate medical purpose. At his whim, Ashcroft had declared a state-authorized medical procedure to be a federal offense. Justice Kennedy was unwilling to grant the Attorney General such extraordinary authority.

Why It’s Interesting: This case is a gem for a host of reasons. First, the way the justices voted is quite quirky. The more liberal justices, who generally argue for the federal government’s power to regulate, sided with Oregon, while the conservative justices, usually the champions of states’ rights, sided with the federal government. Justice Scalia, who generally abhors any effort by the federal government to usurp the power of the states, wrote a dissent based primarily on his personal conclusion that assisted suicide was not a legitimate medical practice. In other words, he agreed with Ashcroft’s judgment on the issue and voted accordingly. This is a far cry from the usual Scalia argument that Supreme Court decisions should be rooted in strict interpretation of the Constitution, not the opinions of the individual justices. The hypocrisy exhibited by both the liberal and conservative justices in arriving at their preferred result further undermines the ideal of an impartial, apolitical court.

The result is all the more quirky because only seven months ago, the Supreme Court considered a related issue – could the Justice Department prosecute those who grew medical marijuana consistent with California law – and came to the exact opposite conclusion. The sides were less clear cut along liberal-conservative lines, but a 6-3 Court ruled then that the Justice Department did have that power. Justice Thomas, the only justice on the losing side in both cases, wrote that this flip flop was “perplexing to say the least.” (Pay attention because I will not write the following sentence very often) Justice Thomas is right. Taken together, the California and Oregon cases provide little guidance on the reach of the federal government in regulating controversial drug treatments.

Perhaps the most significant take home point from this case, however, is what it says about the likely future of the Supreme Court. Chief Justice Roberts joined Justice Scalia’s dissent, setting off alarms for liberals who hoped he would prove more moderate than Scalia. With the apparently imminent addition of Samuel Alito to the Court, should Roberts regularly side with Scalia, Scalia may have a solid block of four votes for the foreseeable future. In addition, Alito’s addition and Justice O’Connor’s departure mean that Justice Kennedy, the author of this opinion will become the Court’s all-important swing vote. Thus, this decision could be a preview of the Court to come. Those concerned that Kennedy will prove less moderate than O’Connor may be comforted by the fact that Scalia’s dissent was characteristically condescending and dismissive of Kennedy’s balance-striking opinion. Such tactics pushed O’Connor away from the arch-conservative camp. Whether they will do the same with Justice Kennedy, the new swing vote, remains to be seen.

Truths About Guantanamo

The Adminstration this week unveiled its latest attempt to avoid all legal oversight of its activities at the military prison at Guantanamo Bay, Cuba. The Justice Department declared that it was seeking to have all suits brought by Guantanamo detainees dismissed from the federal courts. The federal courts should reject the Justice Department’s action and remind the Administration that it is not beyond the bounds of law.

Those detained at Guantanamo were swept up in broad raids in Afghanistan and Pakistan. There are some very bad guys there. But there are also some guys imprisoned by mistake. There are even some who remain imprisoned although the military has conclusively cleared them as non-combatants. The federal court challenges the Administration seeks to dismiss have been an effective way of separating those who should be imprisoned from those who should not. These suits, it should be noted, do not demand release of the prisoners. Instead, they ask the Administration to charge the detainees with offenses rather than imprison them indefinitely without ever explaining why. Over half of the current detainees have challenged their imprisonment in this way, though if the Adminsitration gets its wish, each of these cases will be thrown out.

Attempts to avoid legal review at Guantanamo began at the very inception of the facility, when, in 2002, Guantanamo Bay was transformed from a naval base to a sprawling military prison for individuals captured in the war on terror. The idea was that because Guantanamo was not American soil, the Administration need not obey American detention laws for those detained there. The Supreme Court rejected this conclusion, declaring that Guantanamo inmates could use the federal courts to challenge their indefinite detentions without charge.

Having lost the initial fight at the Supreme Court, the Administration renewed its attempts to shake off pesky legal oversight with its action this week. In seeking to have the cases dismissed, the Justice Department is relying on a vague provision in a military bill passed late last year that allegedly eliminates federal court jurisdiction over Guantanamo cases. It is far from clear, however, that is what Congress intended.

Senator Carl Levin, a co-sponsor of the provision, claims that the provision was meant to limit only future Guantanamo challenges without affecting cases currently pending. Levin said he rebuffed at least three administration attempts to make the law retroactive while the legislation was being written. “The Administration is now seeking to end-run the legislative process and achieve a result through the courts that it was unable to obtain in Congress,” Levin asserted.

The Administration’s action is simply the latest in a consistent stream of attempts to enlarge executive power and avoid oversight of executive actions – at Guantanamo and elsewhere. Whether it be domestic wiretapping or the Geneva conventions, this Administration has consistently considered itself above the law. Earlier this week, the President declared as he signed the recently-passed ban on torture by American intelligence personnel that he would interpret those restrictions in the context of his broader constitutional powers as commander in chief. In other words, President Bush will enforce the ban so long as he wants to. If the President can simply declare what a law means, then what is the point of writing and debating the law in the first place?

The Administration’s brazen attitude toward review of its activities reminds me of another famous, though fictional, Guantanamo character. In the film “A Few Good Men,” Jack Nicholson plays the above-the-law colonel in command of the Guantanamo naval base. When pressed for a description of his involvement in a hazing incident that led to a soldier’s accidental death, Nicholson feels no need to explain himself. Pressed by a pesky Navy lawyer, Tom Cruise, for the truth, Nicholson famously belts, “You can’t handle the truth!” So it is with this Administration. The Bush Administration feels no need to explain the prolonged detention without charge of hundreds of individuals at Guantanamo Bay. That, my friends, is something we truly can’t handle.

Raising Questions About Don't Ask

One of the more frustrating things about being a lawyer is when a very interesting case completely overlooks the larger context in which it is set. Such was the case this week when the Supreme Court heard arguments in a case over whether the government can legally cut federal funding to law schools who have banned military recruiters from campus on the basis that the military discriminates against gay and lesbian students.

The case stems from the Solomon Amendment, a statute that allows the government to restrict federal funding to aid recipients who do not allow equal access to federal recruiters, including the military. In the past, law schools banned military recruiters because the schools do not allow any recruiters who discriminate and because the military’s Don’t Ask, Don’t Tell policy does discriminate against gay and lesbian students. The most recent change to the Solomon Amendment, providing that such action by one part of a university could put in jeopardy federal funding for the entire university, was intended to put the squeeze on the law schools. It worked. Facing a loss of billions of dollars in funding for research and financial aid, universities forced their law schools to allow military recruiters on campus. Unhappy, a group of law schools sued.

The Court of Appeals found for the law schools, concluding that enforcement of the Solomon Amendment forced schools to propagate the military’s message of discrimination, thus violating the law schools’ collective right to free speech. The Supreme Court, however, appears to see things differently. In oral arguments on Tuesday, the justices seemed sympathetic to the government’s claim that they desire equal access, not any endorsement of military policies. Chief Justice John Roberts summed up the government position, “If you want our money, you have to let our recruiters on campus.” The schools could, of course, refuse the federal funding and continue to bar military recruiters, but a stand on this principle, the schools have determined, is not worth the large sums they would forfeit as a result.

Although this case may be interesting to constitutional law scholars, the debate about military access and free speech is really a legalistic offshoot of a separate and more interesting debate about the wisdom of continuing to ban gays from the military. The case provides an opportunity to reevaluate the root of this issue. Since 1993, the military has operated under the supremely silly Don’t Ask, Don’t Tell policy in which gay Americans could serve in the military so long as they do not engage in “homosexual conduct” – a category that includes admitting you are gay. If the military determined that this discriminatory policy were no longer useful, the debate about access to law schools would be rendered moot.

The military has been resistant to admitting gays in the past and remains so today. There is concern that gay soldiers could disrupt a military unit’s cohesion by creating tensions among soldiers and eroding morale. However, in the dozen years since enactment of the Don’t Ask, Don’t Tell policy, public acceptance of homosexuality has come a long way. In those same dozen years, more than 10,000 gay servicemembers have been discharged for being gay. At a time when troop recruitment is slumping and many of our soldiers are facing the prospect of multiple return trips to Iraq, the military may be more open to allowing all willing Americans, regardless of sexuality, the opportunity to serve.

On this issue, the United States is out of step with the majority of NATO militaries as well as that of Israel. In 1999, the United Kingdom lifted a ban on homosexuals and allowed gays to serve. The reaction to lifting the ban has been “less dramatic than expected,” according to Michael Codner of the Royal United Services Institute, a research group with close ties to the British military. Codner did acknowledge that acceptance varied by field: “If you’re a paratrooper and you’re gay, you probably keep your head down, whereas in other units, such as the medical services, it’s less important.”

The American policy has led to the discharge of 54 Arabic translators, an area of desperate need for the military, and an area where acceptance of gay service members would likely be high. Lt. Col. Allen Bishop, a West Point professor who has argued for the law’s repeal, wrote “The war in Iraq highlights the shortsightedness of discharging Arabic linguists who happen to be gay.”

To say that the presence of homosexuals in the military would erode morale underestimates the number of service members who would accept a gay peer and caters to the prejudices of the minority who would not. The military has always been a leader in providing opportunities to a diverse group of Americans. It is time not only to think about whether the military should be allowed to demand access to law schools, but more importantly, to rethink the wisdom of continuing to exclude gay Americans from serving their country.

Tort Reform 101

When you hear the word “torte” you probably think: Mmm. Yummy.

When you hear the words “tort reform” you probably think: Change the channel.

Tort reform is not a very delicious issue and it is one about which few Americans are well-informed. The tort system is important because it represents our effort as a civilization to address the wrongs, intentional and unintentional, that we inflict on one another from time to time. As some would say more crudely, “stuff happens.” The tort system is how we deal with it after stuff happens, balancing the needs of victims with practical considerations of the injuring party.

First, a refresher from the first year of law school. A tort is an injury to a person or property, not a layered cake (unless, that is, the cake is filled with shards of glass as one creative Torts professor allegedly served to effectively drive home the homonym). Without knowing it, we are all very familiar with torts. An auto accident injury, a medical malpractice claim, a suit against a tobacco company, a claim against McDonald’s for too hot coffee – these are all torts, and there are many more.

The debate on tort reform pits tort reformers, those who feel too many meritless suits are burdening our judicial system and too large jury awards are bankrupting good companies, against tort crusaders who see tort practice as a noble battle to gain deserved compensation to victims of wrongdoing or negligence. Currently, legislatures nationwide are considering tort reform efforts that may cap jury awards or immunize entire industries from suits. These efforts are throwing out the baby with the bathwater. Effective tort reform would seek to address the problems with the system while recognizing its strengths.

For strengths, tort crusaders cite the field of defective consumer products, where the tort system and the potential for heavy penalties encourages a high degree of care for consumer safety (some would say not high enough) and does a good job of making the consumers who do bring suits whole again. Although some would argue that the costs of defending these suits is debilitating to business, if a company is unable to affordably create a product that is safe enough to not harm people, maybe that company should not be making the product in the first place.

Tort reformers, meanwhile, can point to the field of medical malpractice as particularly illustrative of the problems with the system. When doctors make mistakes, patients’ first instinct is not typically to sue. Instead, they want to know what went wrong and why, and they do not want to worry about paying to fix the mistake. The tort system completely fails to address these concerns. Doctors, spooked that any acknowledgement of fault will translate into a future massive jury award, are reluctant to communicate openly when mistakes are made, making the apology and explanation the patient wants highly unlikely. Since, as Dr. Atul Gawande notes in this week’s New Yorker, the medical profession has come up with no alternative, patients’ next step is to find a lawyer. In the end, often both winner and loser finish the process dissatisfied.

Lawyers themselves are also part of the problem. Because of lawyers and the divergence in the interests of lawyers, their clients, and society at large, the current tort system suffers from a paradoxical problem – there are both too many and too few tort suits. Why too many? Lawyers, knowing the high cost of a suit to any defendant, count on the defendant’s willingness to settle even where wrongdoing is far from clear. Such lawyers bring faulty suits fishing for deep pockets. Conversely, lawyers refuse to bring many smaller, valid claims. Despite the outcry that doctors are overrun by meritless suits, 98% of patients actually harmed by doctors never bring suit. Lawyers will not take such cases because they are not interested unless the potential recovery is enormous. This situation leaves a large segment of the population with legitimate claims and without any means of addressing their grievances.

So, how to reform the system? Here are three suggestions:

- Discourage meritless suits without discouraging suits with merit. In England, losing litigants pay the winner’s legal fees. This system highly discourages bringing suits that simply fish for deep pockets since such plaintiffs may be stuck with the defendant’s legal bills, but it goes too far. “Loser pays” removes any incentive for a plaintiff, such as one harmed by an untested but well-marketed drug, to take a chance on filing a claim. A modified loser pays system recognizing that some losing cases are brought with merit could help both discourage meritless suits and pave a smoother road for cases that deserve to be heard.

- Line up the incentives of lawyers with the incentives of their clients. Lawyers should be rewarded for bringing cases of merit even where a large award is unlikely. Providing juries with the flexibility to assess a standard “lawyer’s award” for even small recovery cases would help provide access to tort victims who cannot currently find representation and must simply swallow their losses.

- Discourage litigation and encourage less adversarial mediation. This is probably the most important step. Dr. Gawande notes that this has been done with respect to vaccines, where a small surcharge is added to every dose of a vaccine, money that goes to a fund to help pay for the expenses of the few victims whose vaccines go awry. Because victims’ needs are met up front, there is no impulse to sue and relations between parties remain cordial and productive.

The tort system needs revamping, but efforts to cap awards and immunize industries from suit only benefit defendants without recognizing the good that the system serves. A more thoughtful debate on tort reform is worth having – perhaps over a delicious layered cake (hopefully without glass).