Tag: Supreme Court

The Government Shouldn’t Tilt The Speech Playing Field in Its Own Favor

New Hampshire passed a law prohibiting the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing — a practice known as “detailing” — because it believes detailing drives up brand-name drug sales and, in turn, health care costs.  The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly. 

Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment.  See, e.g., Solveig Singleton, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (Cato Institute Policy Analysis No. 295).  New Hampshire also engages in gross viewpoint discrimination: it exempts insurers’ efforts to persuade doctors to use generic drugs, and runs an “academic detailing” program to discourage brand-name drug use.

Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment.  Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case.  Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition.

Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court’s holding that a state may restrict speech to “level the playing field” conflicts with the Court’s precedent regarding both commercial speech and campaign finance regulation.

The Supreme Court will be deciding over the summer whether to grant review, with a decision expected after the “Long Conference,” which precedes the beginning of the new term in October.

The Way to Stop Discrimination on the Basis of Race Is to Stop Discriminating on the Basis of Race

Today the Supreme Court heard argument in Ricci v. DeStefano, the “reverse discrimination” case in which the city of New Haven refused to certify the results of a race-neutral promotion exam whose objective results would have required, under civil service rules, the promotion of only white and Hispanic (but no black) firefighters.

The firefighters who were thus denied promotions sued the city, claiming racial discrimination under Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.

Remarkably, a panel of the Second Circuit Court of Appeals—including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily affirmed the district court’s ruling against the firefighters, though Judge José Cabranes (a Clinton appointee) later excoriated the panel for not grappling with the serious constitutional issues raised by the case.

The Cato Institute filed a brief, joined by the Reason Foundation and the Individual Rights Foundation, pointing out the absurd incentives at play: if the lower court’s ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

Today the Court seemed starkly divided.  The “liberal” justices hinted that an employer should be allowed to be “race conscious” to avoid Title VII lawsuits alleging “disparate impact” against minorities in hiring and promotions.  The “conservatives” were disturbed that the only reason the firefighters weren’t promoted was their race.  Nobody seemed persuaded by the government’s request—really an attempt to avoid taking a firm stand on a controversial issue—that the judgment be vacated and the case remanded for further factual development and legal rulings by the lower courts.  Justice Kennedy will likely be the swing vote, and I predict that he will side with the conservatives, albeit narrowly in a separate concurrence as he did in Parents Involved in Community Schools v. Seattle School District No.1, the race-based school assignment case from 2007.

It was in Parents Involved that Chief Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Quite so. The Supreme Court should thus reverse the Second Circuit, establishing that an employer can only discount test results when there is a “strong basis in evidence” that the test is somehow biased against a particular racial group.

9th Circuit Imitates Marcel Marceau

Last month, I warned that the 9th Circuit Court of Appeals would soon be handing the school choice movement a legal setback. Well, it’s here.

As expected, the 9th Circuit has reinstated a lower court challenge to Arizona’s scholarship donation tax credit program. The program allows taxpayers to contribute to non-profit Scholarship Tuition Organizations (STOs) that provide financial assistance to families choosing private schools. The taxpayers can then claim a dollar for dollar credit for their donation.

While this ruling leaves the program intact for the time being, it would almost surely require the tax credit program to be amended if it is allowed to stand. Fortunately, as I noted in my earlier post, the 9th Circuit is overturned as often as a caber at the Highland Games. Its ruling is unlikely to stand if appealed to the U.S. Supreme Court.

At issue is the fact that taxpayers are free to choose the STOs to which they donate their money, and private STOs are free to set criteria for the schools at which their scholarships can be redeemed. There are thus some STOs that offer scholarships only to religious schools. This is essentially the same situation that obtains when taxpayers claim deductions for contributions to non-profit charities. The charities can legally be religious or secular, and they can infuse the services they offer with religion, or not, as they choose. The whole thing is constitutional because it is the taxpayers, not the government, that decides which charity gets their funds. This is all settled law.

To get around the fact that the legal precedents were against it, the 9th Circuit decided to do a compelling impression of Marcel Marceau, pretending to hem itself into an invisible legal box. Specifically, the 9th Circuit decided to pretend that the constitutional restrictions limiting government expenditures (as in school voucher programs) also apply to the private funds at issue under tax credit programs.

That box, of course, does not exist. No government money is spent under the tax credit program, and the tax credits are themselves available on an entirely religiously neutral basis, in scrupulous conformance with the Establishment Clause of the First Amendment.

So here’s my next legal prediction: the constitutionality of the Arizona education tax credit program will ultimately be upheld by the U.S. Supreme Court, and opponents of educational freedom will have to resort to some new ploy in their efforts to herd American families back onto the public school plantation.

In English Learning Case, Families Will Lose Either Way

The Supreme Court is hearing oral arguments today in a case that will affect how and at what cost English is taught to non-native speakers in U.S. public schools. On one side are Hispanic parents from southern Arizona who sued their school district for failing to properly teach their children English, and on the other are district and state officials who want the courts to butt out and let them teach students in whatever way, and at whatever cost, they choose. I understand what these parents are going through – I grew up in an English-speaking family in the French-speaking province of Quebec – but it really doesn’t matter who “wins” this case: the families will lose either way.

Even if the parents “win,” and the Court orders their public school district to spend hundreds of millions of dollars more on English instruction, it won’t do any good. A 1985 federal court order compelled the state of Missouri to spend an additional $2 billion over 12 years to desegregate Kansas City schools and improve the achievement of African American students. Neither goal was achieved, and even the presiding judge eventually admitted his order was a failure. Extra spending and court pressure do not improve public school performance, because public schools don’t have to show improvement to get the money and because courts can’t dismiss ineffective administrators or teachers.

The real solution is to empower families to _leave_ the schools that are failing them and move their children to more effective ones. Fortunately, Arizona has an education tax credit program that makes scholarships available to defray private school tuition. Whatever the court’s verdict, these parents should be banding together to create a local scholarship fund that can accept tax-credited donations so their children can attend the private schools of their choice. They can then pick whichever schools demonstrate the most success at teaching English instead of spending their time in court.

New at Cato

Here are a few highlights from Cato Today, a comprehensive daily email from the Cato Institute. You can subscribe, here.

  • Doug Bandow weighs the usefulness of NATO in the American Spectator.
  • David Isenberg discusses the use of private military and security contractors in war for United Press International.
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School Strips Student of Clothes, Rights

A middle-school student who was caught red-handed with prescription-strength ibuprofen (in violation of the school’s drug policy) implicated another 13-year-old girl, Savana Redding. On the sole basis of this accusation, school officials searched Savana’s backpack, finding no evidence of drug use, drug possession, or any other illegal or improper conduct. They then took the girl to the nurse’s office and ordered her to undress. Not finding any pills in Savana’s pants or shirt, the officials ordered the girl to pull out her bra and panties and move them to the side. The observation of Savana’s genital area and breasts also failed to reveal any contraband.

Savana’s mother, whom Savana had not been permitted to call before or during the strip search, sued the school district and officials for violating her daughter’s Fourth Amendment rights to be protected from unreasonable search and seizure. The trial court and a panel of the Ninth Circuit ruled against her, but the en banc Ninth Circuit reversed, finding the search unjustified and unreasonable in scope, and therefore unconstitutional. The Supreme Court granted the school district’s petition for review.

Cato, joined by the Rutherford Institute and Goldwater Institute, filed a brief supporting the Reddings’ suit, arguing that strip searches, particularly of students, are subject to a higher level of scrutiny than other kinds of searches. Such searches are reasonable only when school officials have highly credible evidence showing that (1) the student is in possession of objects posing a significant danger to the school and (2) the student has secreted the objects in a place only a strip search will uncover.

In this case, there was insufficient factual basis for the strip search and the search was not reasonably related and disproportionate to the school officials’ investigation. The Supreme Court should thus affirm the Ninth Circuit and establish that such searches may be undertaken only when compelling evidence suggests a strip search is necessary to preserve school safety and health.

Safford Unified School District No. 1 v. Redding will be argued at the Supreme Court on April 21.

When the Government Takes Your Money, It Takes Your Property

When Daniel and Andrea McClung applied for a permit to build a small business on their property in Sumner, Washington, the city charged them nearly $50,000 to pay for improvements to the city’s entire storm drainage system.

The McClungs sued the city under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from “taking” private property for public use without just compensation.  They argue that the city cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system–and without any evidence that the impact was worth $50,000.

The Ninth Circuit ruled in favor of the city, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the city’s determination that the pipes needed upgrading was justification enough for the fees).  The McClungs have now asked the Supreme Court to review their case.

Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections.

Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use).  The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.