1st Amendment in the schools: Are “Boobies” bracelets lewd?

Are these bracelets inappropriate for students to wear in school?

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SCOTUS may have to decide after the Easton, Pennsylvania school board voted 7-1 to appeal the decision from the 3rd U.S. Circuit Court of Appeals.  In this potential case, two girls were suspended from their junior high school for wearing the famous “Boobies” bracelets, allegedly to promote breast cancer awareness.  These particular bracelets seem to be very popular with junior high and high school students as the teachers at SB assert.  Maybe it’s the fun, jelly-ish feel and vibrant colors that make them enticing to kids, or the fact that the message raises awareness in a way sure to arouse the ire of parents, teachers, and administrators.  Whatever the reason, schools have banned them and parents have been supportive of such school policies, despite breaching the free speech rights of the students, out of fear the bracelets promote an oversexualized message in a school setting.

Our fingers are tightly crossed in hopes the SC grants cert, should this case be appealed.  We will stay tuned.

What we’re following & reading while waiting for Homeland tonight and the big SC cases next week…

Sunday night is Homeland night.  This is a non-negotiable.  Although Carrie Mathison’s window into the secret, manic, covert world of the CIA is fictitious, we always wonder how closely they toe the line.  According to Dick Cheney, it’s pretty close.  The NSA and Edward Snowden story is the closest we can probably get to what really happens inside the federal security agencies.  This is what we’re reading while we wait to find out what Saul and Dar Adal are cooking up.  This case involves the very timely topic of warrantless surveillance of a man suspected of having ties to a Pakistani terrorist organization known as the Islamic Jihad Union.

SB is busy researching and preparing our posts for Bond v. U.S. and Town of Greece v. Galloway next week, lesson plans to go with some of our cases, and more – yes, finally – MORE podcasts are coming very soon.  Stay tuned.

We’re also reading our most recent shout-out compliments of Legal History Blog.  Thanks LHB!  Back at ‘ya with our shout-out and a hat tip to you for the great resources.

They're reading some great stuff too.  Bookmark this site, folks.

They’re reading some great stuff too. Bookmark this site, folks.

The Declining Public Opinion of the Court

It’s political, like everything. If you look at the data, provided by a recent Pew Research Center study, clearly public opinion of the SC is declining in light of recent decisions about the Affordable Care Act, voting rights, campaign finance (Citizens United), and same-sex marriage.

They're not Congress-level bad, but they're not good.

They’re not Congress-level bad, but they’re not good.

No less, the Court’s approval rating is still higher than the Presidents (44%) and – obviously – significantly higher than Congress’ approval rating (-75%…just kidding. It’s 12%. No joke.  Source: RealClearPolitics Polls)

RealClearPolitics' PollsRealClearPolitics' Polls

Based on the results of the study, the steady decline appears to have begun shortly after the election of President Obama.

Pew Research Center Survey

Initial thoughts about these survey results:

1. Ideologically – which is really all we have to work with in this survey – Conservatives are considerably more unhappy with the SC than Liberals are.  Liberals are only marginally liking the Court more than they did in 2005 compared to Conservatives who really, really aren’t liking it. Long term (if a study spanning eight years can be qualified as long-term), Liberals’ approval of the Court has increased roughly 3 points in as many years, whereas Conservatives’ approval of the SC has declined 14 points. It’s no surprise given the majority of time this survey was conducted President Obama has been in office, he’s put two left-leaning Justices (Sotomayor and Kagan) on the bench, and the Court upheld the constitutionality of “Obamacare.”
2. Beyond what Conservatives and Liberals think of the Court, a bit more drilling-down into the different subgroups is needed to find out why overall public opinion is declining. One traditionally Liberal subgroup was briefly mentioned revealing a sharp decline (-17 points) in support of the Court among Blacks:

“Opinion of the court among blacks plummeted after the June decisions [Voting Rights & Affirmative Action in public education], which included the closely-watched voting rights case. In March, 61% of blacks regarded the court favorably, a number that dropped to 44% in July. This was among the lowest favorable ratings for the Court among blacks in polling dating to 1985.”

I’m sure more analysis of this data will come out in various follow-up stories.  In the mean time, it being our favorite branch of government, we give it a 100% approval rating.

Post-KS v. Cheever oral arguments – Justices “skeptical” of meth defense

Well, it’s not looking good for Scott Cheever, the meth user who shot and killed Sheriff Matt Samuels in 2005.  Reports coming out of the Court indicated the Justices were “skeptical” of Cheever’s claim that he did not waive his 5th amendment right, which protects him from self-incrimination. [See full KS v. Cheever post by SB]  Apparently Cheever’s attorney Neal Katyal – former Solicitor General who’s been to this rodeo before – had this comment to respond to from Justice Sotomayor:

“Assuming the incredulity of my colleagues continues with your argument,” Justice Sonia Sotomayor instructed Cheever’s attorney at one point, “which way would you rather lose?”

Respectfully, Justice Sotomayor – Burn.

Read more here from an article from the Kansas City Star.  A photo montage of the victim and accused are in the article.

Nina Totenberg on Schuette v. CDAA

Nina Totenberg of NPR – the high priestess of Supreme Court Journalism – on the affirmative action case from this week Schuette v. Coalition to Defend Affirmative Action.  We got a correct pronunciation of the petitioner’s name (“Shut-ee”), an explanation of the somewhat complex political structuring doctrine, and Mr. Schuette’s perspective on the case in a phoned-in interview.

The 4-minute explanation of the case is below.  Give it a listen.

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While you’re listening, check out the old photo we discovered of Nina and click to see the article.  Wow!

Nina Totenberg - NPR's intrepid SC Correspondent - with her trademark style in full effect.  Well done, #Totes!

Nina Totenberg – NPR’s intrepid SC Correspondent – with her trademark style in full effect. Well done, #Totes!

On the 5th Amendment and Kansas v. Cheever [Updated with decision]

The other case SB is watching this week is a 5th Amendment case to come out of Kansas.  Oral arguments are scheduled for Wednesday, October 16th.

The 5-cent explanation:  This case sounds like an episode of Breaking Bad that came to life and went horribly, horribly wrong (or just ended up like a lot of Breaking Bad episodes actually did). Scott Cheever shot and killed Greenwood County Sheriff Matt Samuels in January of 2005.  Cheever was taking and making methamphetamine when he was busted by police.  He confessed to the shooting, was moved to a federal court, and claimed he lacked the pre-meditation classification of a first degree murder charge, a capital offense.  In Cheever’s opinion, he was so high on meth that it compromised his ability to reason therefore his altered state negated any pre-meditation, and he should not have to face a death penalty.  A federal court ordered a psychiatric evaluation but the case was later moved to a state court where another evaluation was ordered.  The question in this case is whether or not his words shared with the first psychiatrist can be used against him at the state court where he’s looking at the death penalty.  A lower court judge said Cheever’s words could be used against him, that his 5th Amendment right was waived, but the Kansas Supreme Court overturned that ruling and ruled that his words to the first psychiatrist were privileged and could not be used against him.

The 10-cent explanation:  Scott Cheever, 32, shot and killed Greenwood County Sheriff Matt Samuels in January of 2005.  Cheever had been taking meth for nine days, had little to no sleep, and had something like 150 units of meth in his system around the time of the shooting (scary note: According to his attorney and former Solicitor General Neal Katyal, it can only take 80 units to kill a human.)  Sheriff Samuels arrived to bust Cheever and his friends taking and making meth at a residence, at which time Cheever hid in a closet at that residence.  Cheever shot Samuels at point-blank range when the sheriff opened the closet door and found him inside.  He confessed to the shooting, was moved to a federal court, and claimed he lacked the pre-meditation classification of a first degree murder charge.  First degree murder is obviously the kind of capital charge that can carry a sentence of death in some states if one is found guilty.  In Cheever’s opinion, he was so high on meth that it compromised his ability to reason, therefore his altered state negated any pre-meditation, and thus he should not have to pay the ultimate price of death.

The federal court ordered a psychiatrist to evaluate him to determine Cheever’s mental state.  After a five-hour evaluation, the psychiatrist determined Cheever knew what he was doing when he fired the weapon killing Samuels and that he satisfied the pre-meditation requirement.  However, after a change in courts, Cheever’s case was pushed back to the Kansas state court.  Cheever entered the same compromised frame-of-mind defense, but was now definitely looking at a capital charge, as Kansas had recently reinstated the death penalty.  The state court also ordered a psychiatric evaluation, but this time a different psychiatrist “testified that Cheever’s use of meth kept him from making sound decisions [and] told the jury that Cheever’s meth use left him ‘no judgment at all’ on the day he killed Samuels.” [The rest of this article from the Wichita Eagle is here]

This case is technically not about the medical experts’ opposing evaluations, the death penalty, or Cheever’s  state of mind – it’s about Cheever’s 5th Amendment right.  The 5th Amendment protects you from incriminating yourself, or saying something that would further an appearance of guilt or wrong-doing giving the impression that you are guilty.  It’s why, in many criminal cases, defendants do not take the stand to testify on their own behalf.  OJ Simpson, Scott Peterson – these guys invoked their 5th Amendment right when they chose not to take the stand for fear their words would hurt their chances of getting a fair, impartial trial.  In some cases, words could be taken out of context and hurt a defendant.  In other cases, they can be the silver bullet that frees a wrongly accused defendant.  This case isn’t going to result in the latter – Cheever admitted his guilt – but the former is of concern to him and his attorney.  Testimony from Cheever’s first psychiatrist – the one he spent 5 hours talking to – was called into the state court and was used against him.

Essentially the question in this case is whether or not the words Cheever shared with the first psychiatrist can be used against him at the state court where he is looking at a death sentence.  A lower court judge said his words could be used against him, that his 5th Amendment right was waived, but the Kansas Supreme Court said his words could not be used against him.  The Attorney General for Kansas petitioned the U.S. Supreme Court which is how it arrived on SCOTUS’ docket today.

Neal Katyal, attorney for the defendant, explains the case in this video:

Neal Katyal, former Solicitor General and pro bono attorney for the defendant, Scott Cheever.

Neal Katyal, former Solicitor General and pro bono attorney for the defendant, Scott Cheever.

Link to the audio of the oral arguments is here, thanks to Oyez.

UPDATE: Unanimous SCOTUS opinion finds testimony of the first psych evaluation can be used against Cheever and is not a violation of his 5th Amendment rights.  Justice Sonia Sotomayor wrote the opinion and had this to say about the defendant’s invocation of the 5th Amendment in his criminal proceedings:

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The link to the long form version of the decision is embedded in this pic. Check it out.

5-cent explanation of this decision:  Scott Cheever submitted to the first psychological evaluation when it was ordered by the federal court.  After a 5-hour discussion with Cheever, the evaluator, Dr. Michael Welner, stated Cheever’s motivations were the result of “antisocial behaviors,” not the product of brain damage caused by Cheever’s use of high doses of methamphetamine.  When the case was moved from federal court back to the Kansas state court, he submitted to another psych evaluation and this time the evaluator, Roswell Lee Evans, found Cheever’s actions in shooting Samuels were the result of significant brain damage likely caused by the drugs.  These two expert opinions are critical to determining whether or not Cheever’s actions were premeditated.

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If the opinion of one expert (who provides favorable testimony) can stand trial, then so can the other (who doesn’t).  In other words, the court can’t allow only the testimony of those that help your case without allowing equally relevant testimony that doesn’t help your case.  This would be unbalanced and a detriment to the prosecution, whose job it is to prove guilt.  In both cases, Cheever’s words were willingly given to the evaluators and their subsequent findings and testimonies do not violate his 5th Amendment right.

This is a loss for Cheever and positive news for the family of the deceased (Sheriff Samuels).  However, in the last lines of the Court’s decision, they remanded the case back to the Kansas Supreme Court for further proceedings, likely regarding the death sentence, but add that such proceedings should not be “inconsistent with this opinion.”  According to Scott Cheever’s defense team, quoted in the Wichita Eagle, they’re looking at appealing and stalling a potential execution for as much as a decade.

On Schuette v. Coalition to Defend Affirmative Action and Circuit Splits

On the docket this week are two cases that we’re interested in.  The first case, appearing before the Court Tuesday (October 15th) at 1pm, is called Schuette v. Coalition to Defend Affirmative Action.

The 5-minute explanation of the case:  This case is different from the affirmative action case of last season (Fisher v. University of Texas).  The state of Michigan struck down affirmative action in response to a controversial U.S. Supreme Court case in 2003 about admissions practices at universities.  In that case (Grutter v. Bolinger), Justice Sandra Day O’Connor said the use of race was permissible as one factor, among several, in a holistic approach to admissions practices at public schools.  In 2006 Michigan amended their state constitution banning affirmative action by way of a ballot initiative (the voters decided, if you will).  The question this case asks is: Can a state abolish affirmative action programs through ballot initiative if the U.S. Supreme Court and federal government say affirmative action programs are constitutional?

The 15-minute explanation of the case:  This case was granted certiorari (the official term for when the Court says “Ok, we’ll hear your complaint” to petitioners) likely because of a circuit split.  There are 13 federal district courts of appeals, with several states falling under the jurisdiction of one federal court.  Here’s a map to explain it better:

Which Federal Circuit Court is in your state?  Which Circuit has the greatest amount of states in its jurisdiction?  What problems are likely the result of circuits having bigger jurisdictions than others?

Map courtesy of USCourts.gov. Which Federal Circuit Court takes your state’s cases? Which Circuit has the greatest amount of states in its jurisdiction? What problems are likely the result of circuits having bigger jurisdictions than others?

A circuit split is when one federal court renders a decision that is different from another federal court on a similar matter.  When circuit courts split, it’s a very good sign that the U.S. Supreme Court – the last court of appeals – will take the case to iron out the wrinkle between two parts of the country.

In 2003, the Supreme Court decided, in Grutter v. Bollinger, that affirmative action efforts, like using race as one of several factors when considering applicants for admission to the University of Michigan, was permissible.  Three years later, in a clear reaction to the Grutter decision, a ballot initiative known as Proposition 2 was passed by a majority of Michigan voters abolishing affirmative action programs.  The state’s constitution was amended to reflect successful passage of Prop. 2.

Ok, so here is where things get a little sticky, so stay with us.  Proposition 2 was challenged by a group called Coalition to Defend Affirmative Action By Any Means Necessary (aka BAMN…or “BAMn!!”) to the 6th Circuit Court of Appeals .  As you can see from the map above, Michigan falls under the jurisdiction of the 6th Circuit.  BAMN won in the 6th Circuit when they challenged the constitutionality of Prop 2 saying that it violated the Equal Protection Clause of the 14th Amendment. Here’s the explanation of the 6th Circuit’s ruling, courtesy of SCOTUSblog:

The passage of Proposal 2 violated a rarely used doctrine called the political restructuring doctrine.  Here is the crux of the respondents’ argument, accepted by the Sixth Circuit:  if an applicant to the University of Michigan believes that legacy status or some other non-race-related quality should be taken into account in admissions, he can petition the Board of Regents to include that quality as a factor to be considered in admissions.  If a person of color believes that race should be taken into account in admissions, he can no longer ask the Board of Regents to adopt that policy, but instead must seek an amendment of the state constitution.” [the rest of SCOTUSblog writer Melissa Hart’s article is here.]

What does this mean?  We think BAMN’s point was that preferences – be they familial, racial, athletic, or geographic – already exist, but legally banning one class of individuals from taking advantage of a preference is no fair.  Maybe it’s a bit easier to explain using a hypothetical.

Let’s say you’re a high school student who wants to help your chances of getting into the University of Michigan by advocating to the admissions Board of Regents that you’re the child of a U of M graduate.  Lots of college applicants are the children of graduates and hope their familial relationship might give them an extra advantage and acceptance. This would classify you as a legacy applicant, which some universities have a preference for, and the Board could take your request into consideration.  Or, maybe you’re from a part of the state that rarely represents the student body at the university and want the Board to give you a preference for this geographical void.  You also can petition the Board requesting special consideration, a preference if you will, for acceptance.  However, if you’re a student of color who wishes to self-advocate on the basis of race, you would first have to amend the constitution before you can petition to the Board of Regents.  This is harder.  A lot harder.  Hard enough that the 6th Circuit felt it denied certain citizens (in this case, applicants of color) equal protection under the law.

Ward Connelly, an affirmative action opponent, and the Attorney General of Michigan, Bill Schuette (pronunciation of his name has varied between “Shut-ee” and “Shoe-ett”), are petitioning the Supreme Court to overturn the 6th Circuit Court decision, which found in favor of BAMN.  Schuette thinks the “Michigan law promotes equal protection by prohibiting affirmative action, and therefore cannot violate the Equal Protection Clause.”  BAMN, conversely, “argues that equal opportunity affirmative action policies are anti-discrimination measures designed to secure equal protection of the laws.”  Although the use of race in deciding who gets into a state school or gets a state job is not exactly treating all candidates the same, BAMN’s position is that affirmative action programs are the only proven way groups that were historically denied access to education and employment can get such opportunities.  Further, their point is that if preferences in admissions or hiring practices already exist, why should racial preferences have a special constitutional ban?  The 6th Circuit agreed in a 7-6 decision. California had a similar ballot initiative (Prop 209) that was brought to the 9th Circuit Court. In this case, the court ruled different from the 6th (i.e. that the law did not violate the 14th amendment), hence the split in the two circuits and the reason the SC is hearing this case.

It’s important to understand the SC isn’t going to rule explicitly on affirmative action in all admissions practices at universities or hiring practices at state government offices. But it is going to teach us more about the political restructuring doctrine (referenced above), which comes from Justice Blackmun’s opinion in a case involving busing in Seattle (1980s).  It’s worth noting that only two previous SC cases have referenced this doctrine (legal trailblazing = cool!).  Finally, for whatever stock you put into records, the 6th Circuit doesn’t have the best one at the SC.  According to former SG Neal Katyal, 25 of the last 26 cases to come out of the 6th Circuit have been struck down by the SC.

Here’s a video to help you understand more about the case:

Jess Bravin from the Wall Street Journal on Schuette.

Jess Bravin from the Wall Street Journal on Schuette.

Decision update:  6-2 voted in favor of upholding the ballot initiative (Prop 2) in Michigan.  The majority, of which there is a patchwork quilt of different Justices agreeing to portions of the decision and thus three concurrences, agreed with the voters’ efforts to ban race-based affirmative action programs in universities.  The two dissenters were Justices Sotomayor and Ginsburg.  Justice Kagan recused herself in this case.

Justice Kennedy read the majority opinion which was rooted in a confidence that the will of the voters to impact state law by putting an issue to a vote is compelling enough to support the outcome of that vote.  In this case, the will of the voters of Michigan was to ban the use of race as a factor in state college admissions acceptance processes.  “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it….The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow.”  As for ruling on the precedent set in the 1980s, Kennedy said “The theory was not essential to the result in that case, and was itself a form of encouraging an unhealthy tendency to group minority individuals together as if they commonly shared the same views on public policy.” (Source: Lyle Denniston)

This decision is a win for anti-affirmative action supporters who criticize repairing the wrongs of historical discrimination with state or federal action based on race that in turn discriminate.  It’s also a victory for Schuette and organizations like the Project on Fair Representation – the group that helped get Abigail Fisher’s lawsuit against the University of Texas in 2013 to the SCOTUS – who can use this decision to lay the groundwork to chip away at hiring practices and contract rewards that use race as a factor.  Momentum is evident in that there have been three cases over the last year in which race was at the center or periphery of each one.  Edward Blum’s Project on Fair Representation provided the financial backing to get two of the three in the SCOTUS (Fisher & Shelby County).  He’s been called a Supreme Court “matchmaker” and is not alone among private interest groups who match litigants with sterling attorneys marching their cases all the way to the Court.  We predict such groups will continue to push such affirmative action cases to the SCOTUS in the near future and it seems evident they have a willing ear at the SCOTUS.